text:
    Tower against Wilson, Sheriff of Washington.
    In an action for levying on v'rong propei-4y, to warrant a certificate that the trespass was wilful and malicious, it must appear either that the execution was served bj him, or with his knowledge, for a constructive trespass ch.es not make it voluntary.

      THIS was an action of trespass, brought by the plaintiff for an illegal levy on the plaiatift s property whilst m ms own hand's, by a deputy of the defendant under a fieri fa- . , etas, against another pei sou.

      The judge considering that when the property of a third person was taken wrongfully in execution, the malice was an inference of law, arising on the facts, and that the defendant was responsible for the conduct of his deputy, had certified the trespass to be wilful and malicious.

      Shephard now moved to have the certificate vacated.
   Per curiam.

Take the effect of your application. The trespass here was not voluntary in the defendant, for he is sued for an act of his deputy in taking wrong property on a fi. fa. when he knew nothing of it himself. To make the case of Stiles and Hathway a pply, the trespass must be voluntary in fact, and not merely by construction. In the present instance it is impossible to say the act was voluntary in the defendant.


source: Caselaw Access Project

author: Tompkins, J. Livingston J.

license: Public Domain

text:
    Jesse Pierson against Lodowick Post.
    ALBANY,
    August, 1805.
    THIS was an action of trespass on the case commenced , . .. , . , , , r , • , in a justice's court, by the present defendant against the now plaintiff. The declaration stated, that Post, being in posses. . „ . ’ ° * sion ox certain dogs and hounds under his command, did, u upon a certain wild and uninhabited, unpossessed and r 7 r ^ waste land, called the beach, find and start one of those fi noxious beasts called a fox," and whilst there hunting, , . , . , . , , . , , , chasing and pursuing tee same with his dogs and hounds, and when in view thereof, Pierson, well knowing the fox was so hunted and pursued, did in the sight of Post, to prevent his catching the same, kill and carry it off. A verdict having been rendered for the plaintiff below, the defendant there sued out a certiorari, and now assigned for error, that the declaration and the matters therein contained were not sufficient in law to maintain an action.

      Sanford for the now plaintiff.
    It is firmly settled, that animals fens natures belong not to any one. If then, Post had not acquired any property in the fox, when it was killed by Pierson, he had no right in it which could be the subject of injury. As, however, a property may be gained in such an animal, it will be necessary to advert to the facts set forth, to see whether they are such as could give a legal interest in " the creature, that was the cause of the suit below. Finding,, hunting, and pursuit, are all that the plaint enumerates. To create a title to an animal fera natura, occupancy is indis» T J pensible. It is the only mode recognised by our system. 2 Black. Com. 403.' The reason of the thing shews it to be s°. For whatever is not appropriated by positive institu-lions, can be exclusively possessed by natural law alone. Occupancy is the sole method this code acknowledges. Authorities are not wanting to this effect. Just. Lib. 2. tit. 1 § 12 “ Fera igitur bestia, simul atque ab aliquo capta fuer intjure t£ gentium statim illius esse incipiuntP There must be a taking; and even that is not in all cases sufficient, for in the same section he observes, “ fjuicquid autem corum ceperis, eo usque tuinn esse intelligitur, donee tua custodia coercetur ; cum vero tuam evaserit custodiam, et in libertatem natura- “ lem sese receperit, tuam esse desinit, et rursus occumpantis “ft.” It is added also, that this natural liberty may be regained even if in sight of the pursuer, “ ita sit, ut dijficilis w sit ejus persecution In § 13 it is laid down, that even wounding will not give a right of property in an animal that is unreclaimed. For, notwithstanding the wound muU “ ta accidere soleant ut earn non capias . and “ non aliter a tuam esse, quam si earn ceperis.” Fleta B. 3. c. 2. p. 173, and Bracton B. 2. c. l.p.-86, are in unison with the Roman law-giver. It is manifest then, from the record, that there was no title in Post, and the action therefore not maintainable.

      ,'Pursuit alone P,ves «o right of property ‘ ⅛ ailI1Iu!s pros natura ineie-fore an ac.ior. will not lie a-^ainst a irsim for ki and ,3⅛|[18 'Ued by. and m the view of the Wf ,„orj' started, chas- * eci i!’ a"fJ point of seizing ¡'¡j ⅜,⅛⅛ can be acqu>r« session^ ⅛⅞’2* such possession fy^manacap^' tion> tin»’ it a'kfod^by* nets, snares or as to cumvent the ¿k «1. t.

      Colden contra.
    I admit with Fleta, that pursuit alone does not give a right of property in animals fera natura, and I admit also that occupancy is tó give a title to them. But then, what kind of occupancy? and here I shall contend, it is not such as is derived from manucaption alone. In Puf-fendosfs Law of nature and of nations, B. 4. c. 4. S. 5. n. 6. by Barbeyrac notice is taken of this principle of taking possession. It is there combatted, nay, disproved ; and in B. 4. c. 6. S. 2. n. 2. Ibid. S. 7.. n. 2, demonstrated that ma-nucaption is only one of many means, to declare the intention of exclusively appropriating that,' which was before in a state of nature. Any continued act which does this, is equivalent to occupancy. Pursuit, therefore, by a person who starts a wild animal, gives an exclusive right whilst it is folia wed. It is all the possession the nature of the subject; admits ; it declares the intention of acquiring dominion, and is as much tobe respected as manucaption itself» The contrary idea requiring actual taking, proceeds, as Mr. Bar-bey rac observes, in Piijfendorf B. 4» o. 6. A 10, on a “ false M notion of possession.”

      Sanford in reply.
    The only, authority relied on is that of an annotator. On the question now before the court, we have taken our principles from the civil code, and nothing has been urged to impeach those quoted from the authors referred to.
   Per curiam, delivered by

Tompkins, J.

This cause comes before us on a return to a certiorari directed to one of the justices of Queen’s county.

The question submitted by the counsel in this cause for our determination is, whether Lodowick Post, by the pursuit with his hounds in the manner alleged in his declaration, acquired such a right to, or property in the fox, as will sustain an action against Pierson for killing and taking him. away ?

The cause was argued with much ability by the counsel on both sides, and presents for our decision a novel and alee question. It is admitted, that a fox is an animal feres natura, and that property in such animals is acquired by occupancy only. These admissions narrow the- discussion to the simple question of what acts amount to occupancy, applied to acquiring right to wild animals.

If we have recourse to the ancient writers upon general principles of law, the judgment below is obviously erroneous. Justinian's Institutes, lib. 2. tit. 1. sect. 13, and Fleta, lib. iii. c. ii. page 175, adopt the principle, that pursuit alone, vests no property or right in the huntsman ; and that even pursuit, accompanied with wounding, is equally ineffectual for that purpose, unless the animal be actually taken. The same principle is recognised by Bracton, lib. ii. c. i. page 8.

Puffendorf lib. iv. c. 6. sec. 2. Ѡ 10. defines occupancy of beasts feres natura,- to be the actual corporal possession of them, ¿¡nd Bynkershoek is cited as coinciding in this definition. 11 is indeed with hesitation that Piijfendorf affirms, that a wild beast mortally wounded, or greatly maimed, cannot be Fairly intercepted by another, whilst the pursuit of the person inflicting the wound continues. The foregoing authorities arc decisive to shew, that mere pursuit, gave Post no legal right to the for, but that he became the pro» perty of Pierson, who intercepted yard killed him.

It therefore only remains to inquire, whether there are any contrary principles, or authorities,, to be found in other books, which ought to induce a different decision. Most of the cases which have occurred in Englandrelating to pro» perty in wild animals, have either been discussed and decided upon the principles of their positive statute regulations, or have arisen between the huntsman, and the owner of the land upon which beasts ferm natures have been apprehended 5 the former claiming them by title of occupancy, and the latter rations soli. Little satisfactory aid can, therefore, be derived from the English reporters.

Barbeyrac in his notes on Pujfendorf, does not accede to the definition of occupancy by the latter, but, on the contrary, affirms, that actual bodily seizure is not, in all tases, necessary to constitute possession of wild animals. He does not however, describe the acts which, according to his ideas, will amount to an appropriation of such animals to private use, so as to exclude the claims of all other persons, by title of occupancy, to the same animals; and he is far from averring that pursuit alone is sufficient for that purpose. To a certain extent, and as far as B trbeyrac appears to me to go, his objections to Pajfendorf’s definition of occupancy are reasonable and correct. That is to say, that actual bodily seizure is not indispensable to acquire right to, or possession of wild beasts ; but that, on the contrary, the mortal wounding of such beasts, by one not abandoning his pursuit, may, with the utmost propriety, be deemed possession of him j since thereby,..the pursuer manifests an unequivicaf intention of appropriating the animal to his individual use, has deprived him of his natural liberty, and brought him within his certain control. So, also, encompassing and , securing such animals with nets and toils, or otherwise intercepting them, so as to deprive them of their natural liberty, and render escape impossible, may justly be deemed tb give possession of them t© those persons who, by their industry and labor, have used such means of apprehending «them. Bar-, ieyrac seems to have adopted, and had in view' ⅛ his note?, the xrore accurate opinion oí Grotius, with respect to occupancy» That celebrated author, UL lb c. 8» sect. 3*page 309, speaking of occupancy, proceeds thus, “ Requiriiur autem corporalis quasdam possessio ad dominium, adipiseendum $ M atque ideo, uulnerasse non sufficitP But in the following section he explains and qualifies this definition of occupancy ? “ Sed possessio illa potest non soils manibus, sed instruí ⅞⅛ mentis, ut decipulis, retibus, laqueis dum quo adsint s pri^ ^ mum ut ipsa instrumenta sint in nostra potestate, delude 6i utfcra, lía inclusa sit, ut exire inde nequeatThis qualification embraces the full extent of Barbeyrads objection So Puffendorf>3 definition, and allows as great a latitude to acquiring property by occupancy, as can reasonably be in» fenred from the words or ideas expressed by Barbeyrac in his notes. The case now under consideration is one of mere pursuit, and presents no circumstances or acts which can faring it within the definition of occupancy by Puffendorf, or Grotius, or the ideas of Barbeyrac upon that subject.

The case cited from 11 Mod. 74 — 130, I think clearly distinguishable from the present; inasmuch, as thefe the action was for maliciously hindering and disturbing the plaintiff in the exercise and enjoyment of a private franchise j and in the report of the same case 3 Salk. 9. Holt, Chief Justice, states, that the ducks were in the plaintiff’s decoy pond and so in his possession, from which it is obvious the court laid much stress in their opinion, upon the plaintiff’s possession of the ducks, ratione soli.

I am the more readily inclined to confine possession or occupancy of beasts ferce naturas, within the limits prescribed by the learned authors above cited, for the sake of certainty, and preserving peace and order in society. If the first seeing, starting or pursuing such animals, without having so wounded, circumvented or ensnared them, so as to deprive them of their natural liberty, and subject them to the control of their pursuer, should afford the basis of actions against others for intercepting and killing them, it would prove a fertile source of quarrels and litigation.

However uncourteous or unkind the conduct of Pierson towards Post, in this instance, may have been, yet his act was productive of no injury or damage, for which a legal remedy can be applied. I am of opinion the judgment be« was erroneous? and ought to be reversed. ■

Livingston J.

My opinion differs from that of the court. Of six exceptions, taken to the proceedings below, all are abandoned except the third, which reduces the controversy to a single question.

Whether a person, who with his own hounds, starts and hunts a fox, on waste and uninhabited ground, and is-on the point of seizing his prey, acquires such an interest in. the animal, as to have a right of action against another, who in view of the huntsman and his dogs in full-pursuit, and with knowledge of the chase, shall kill and carry him; away 1 ....

This is a knotty point, and should have been submitted to the arbitration of sportsmen, without poring over Justi-nianfFleta, Bracton; Bajfendorj Locke, Bafbeyrac or Black-stóne., all of whom have been cited ; they would have had no difficulty in coming to a prompt and correct conclusion. In a court, thus constituted, the skin and carcas e of poor Re-nard would have been properly disposed of, and a precedent set, interfering with no usage or custom which the experience tif ages has sanctioned, and which must be so well known to every votary of Diana. But the parties have referred the question to our judgment, and we must dispose of it as well as we can, from the partial lights we possess, leaving to a higher tribunal, the correction of any mistake which we may be so unfortunate as to make. By the pleadings it is admitted, that a fox is a “ wild and noxious beast.’* . Both parties have regarded him, as the law of nations does a pirate “ hostem humani generis,” and although “ de mor-Utuis nil nisi bonumf be a maxim of our profession, the memory of the deceased has not'been spared. His depredations on farmers and on barn-yards, have not been forgotten ; and to put him to death, wherever found, is allowed to be meritorious, and of public benefit. Hence it follows,’ that our decision should have in view the greatest possible encouragement to the destruction of-an animal, so cunning and ruthless in his career. But who would keep a pack of hounds ; or what gentleman;- at the. sound of the horn, and at peep of day would mount his.steed,, and for hours together, “ sub jove frígido” or a vertical sun, pursue the windings of this wily quadruped, if, just as night came on, and his stratagems and strength were nearly exhausted, a saucy intruder, who had not shared in the honors or la-bours of the chase, were permitted to come in at the death, and bear away In triumph the object of pursuit? Whatever Justinian may have thought of the matter, it must bé recollected that his code was compiled many hundred years ago, and it would be veiy hard indeed, at the distance of so many centuries, not to have a right to establish a rule for ourselves. In his day, we read of no order of men, who made it a business, in the language of the declar ation in this cause,u with hounds and dogs to find, start, pursue, hunt, u and chase,” these animals, and that too, without any other motive, than the preservation of Roman poultry ; if this diversion had been then in fashion, the lawyers who composed his institutes, would have taken care not to pass it by, without suitable encouragement. If any thing therefore, in the digests or pandects shall appear to militate against the defendant in error, who, On this occasion, ivas the foxhun-ter, we have only to say témpora mutantur; and if men themselves change with the times, why should not laws also un„ dergo an alteration ?

It may be expected, however, by the learned counsel, that more particular notice be taken of their authorities. I have examined them all, and feel great difficulty in de. termlning, whether to acquire dominion over a thing, before in common, it be sufficient that we barely see it, or know where it is, or wish for it, or make a declaration of our will respecting It i Or whether, in the case of wild beast", setting a trap, or lying in wait, or starting, or pursuing, be enough; or If an actual wounding, or killing, or bodily tact and occupation be necessary^ Writers on general law, who have favored us with their speculations on these points,differ ob them all j but, great as is the diversity of sentiment among them, some conclusion must be adopted on the question immediately before us. After mature deliberation, I embrace that of Barbeyrac, as the most rational, and least.liable to objection. If at liberty, we might imi=> ■iáfce (he courtesy of ⅞ certain Emperor, who, to avoid giv* ing offence to the advocates of any of these, different doctrines,- adopted a middle course, and by ingenious distinctions, rendered it difficult to say, (as often happens after a fierce and angry contest,) to whom the palm of victory be» longed. He ordained, that if a beast be followed with large dogs and hounds, he shall belong to the hunter, not to the chance occupant; and in like manner, if he be killed or wounded with a lance or sword; but if chased with beagles onlyH then he passed to the captor, not to the first pursuer. If slain with a dart, a sling or a bow, he fell to the hunter, if still in chase, and not to him who might afterwards find and seize him.

Now, as we are without any municipal regulations of oui own, and the pursuit here,- for aught that appears on the case, being with dogs and hounds of imperial stature, we áre at liberty to adopt one of the provisions just cited,' which comports also with the learned conclusion of Bar-beyrac, that property in animals Jera: natura:, may be acquired without bodily touch or manucaption, provided the pursuer be within reach, or have a reasonable prospect (which certainly existed here) of taking, what. he has thus discovered an intention of converting to his own- use.

When we reflect also that the interest of our husbandmen', the most useful of men in any community, will be advanced by the destruction of a beast so .pernicious and incorrigible, we cannot greatly err, in saying, that a pursuit like the present^ through waste and unoccupied lands, and which must inevitably and speedily have terminated in corporal possession, or bodily seisin, -confers such a right to the object of it, as to make any one a wrong doer, who shall interfere and shoulder the spoil. The justice’s judgement ought therefore, in my opinion, to be affirmed.


author: Spencer J.

text:
    James Hollingsworth against Andrew Napier.
    ALBANY,
    August 1805.
    If a vendor de-dee^ ^achin'2of parcels forgoods lie'"storef toge> ther with an or-keepeu for their delivery, the vendor’s right of stopping In transitu is gone against a third person, purchasing bona fi-de for a valuable consideration, and tho’ there be some suspicious circumstances attending the transaction, yet, if they have been fairly sui - mitlcd to a jury, the court will not intend there was any fraud, so as to warrant a new trial.

      TROVER to'recover the'value of ten bales of cotton, bought under the following circumstances,
    The defendant had sold the property in question, ■ which was tying in the public store at the quarantine ground, tó one Kinworthy, for cash payable on delivery, in conse-fluence of which, a bill of parcels- had- been made out, mark-scl in tbe margin, “ cash,” but containing no receipt for the money,, This, together with an order on the storekeeper for the cotton, had, either by the defendant or his clerk, been given over to Kinworthy. He," without either paying for the articles, or having taken possession of them, met the plaintiff at a public house, and,' producing the bill of parcels and order, offered them for sale at the same price for which they had been bought, alleging- as a reason, that he was pushed for money. The plaintiff on-this, agreed to become the purchaser, received the bill of parcels and order, and paid for the goods', by giving a part of the consideration money in cash, and the residue in a check borrowed from a Mr. Peter Hyde. Having finished this transaction, Hollingsworth went to the quarantine ground the very next day, but at so late an hour that, from the usual course of business, it was impossible to have shipped the goods that night, and, producing the order demanded the cotton, on the turning out of which to him, he paid the amount of storage, had the bales marked with his initials, and then returned into the public store. The morning after this had taken place, the defendant went to the quarantine ground, took the cotton from the store-keeper, and sold it.
    At the trial of the cause, the jury, under the direction of the judge, that the order to the store-keeper was a delivery, found for the plaintiff.
    The application now was, to set aside this verdict, as contrary to law, and on account of having newly discovered, that no person of the name of Peter Hyde had ever kept any account with either of the,banks mNew York, and that the defendant hoped, from information related to him,, to prove that the cotton had been obtained from him, in consequence of a preconcerted plan between Hollingsworth and Kinxvorthy, to the former of whom the latter had been long indebted, to satisfy the demand on which account, the goods in question had been fraudulently transferred, without any consideration having ever passed at the pretended time of sale.
    Caines, for the defendant,
    argued that the circumstances ©f the case warrantéd a presumption of fraud. That Kin-worthy having acquired no legal pi-operty in the goods. e^er ^ payment, or taking possession, could transfer none to Hollingsworth, who claimed only by virtue of the order from Napier- to the store-keeper, which not being negociable, must have been taken subject to all the equities that might have been urged against it m the hands of the original holder. That against him the privilege of stop* ping in transitu existed in full force, being founded on legal rights ; for, as payment was a condition precedent in all sales, stopping in transitu was a legal right depending on the laws of property. Cowperv. Andrews, Hob, 41. Burg-hall v. Howard, 1 H. Black, 365 (n). Openhein v. Russell., 3 Bos. & Pull. 49. It therefore will support trover. Botlhigk v. Inglis, 3 East 381. That consequently the only right the plaintiff could acquire by the purchase, was an equitable one, in virtue of his consideration money paid ; but that, as ¡equitable claims could never overreach legal titles, the right of the defendant was as good against Hollingsworth, as against Kinworthy,. As to the marking with initials, turning out of the store, &c. that he said was immaterial; the same things had been done in Hodgson v. Loy, 7 D. tí Eh 460. The true question was, had the articles reached their destination ?. for till then every delivery was constructive, and never affected a legal right. If otherwise, the doctrine of stopping in transitu was at an end, as every delivery within the statute of frauds would take it away, and. such a position was in the face of every determination on the point, in all of which a constructive delivery had uniformly taken place. The affidavit also shewed fresh grounds.

      Woods apd Hoffman contra.
    Fraud is a matter of fact ¡ there are to be sure certain circumstances from whence it may be inferred, but there are none such in the present case, and they must be very strong to take it from the jury to the court. Besides, due diligence is not shewn, and the facta detailed, rest more on the defendant himself than other per* sons. ; As to the right of stopping in transitu, the order on the store-keeper was tantamount to an actual delivery. 1 Lex, Mer. Amer. 376, 7, and the cases there cited. If so, Kinworthy was in possession, and his sale of course effectual. But allowing the delivery to be only constructive, an assignee of the person to whom it was made, and who is
      bona fide purchaser, is protectedby it. Abbott 314. The goods might indeed be said to have been delivered by Napier himself, for it was Ms agent who gave them up to the plaintiff.

      Harison in reply.
    The delivery here relied on, would have been good, as between the original parties, Napier . ' , . , . ® l ’ and Kmworthy, had either one of them come here to enforce the contract, and claim either the money or the goods, by paying the one, or tendering the other. This would have been by virtue of the statute of frauds, and it is to that effect, that the cases in the book referred to, are mentioned. But though this would be a good delivery between the immediate parties, one claiming against the other the benefit of his contract, it does not follow that it can be established between third persons, so a a to take away the right of stopping in transitu» Such interest as Kimoorihy had, he sold. That interest was one liable to stoppage in transit; of course his vendee took it subject to the same liability. There ⅛ no hardship in this ; the rule is caveat emptor. Had Kin-worthy reduced the property into possession, the case would have been different. It is plain a fraud has been committed on the defendant, and he ought not to be precluded from an opportunity of shewing it. As to the store-keeper being the agent of Napier, and therefore the goods virtually delivered by Napier himself, let it be remembered, the cotton was returned to that store-keeper, and if the reasoning of the plaintiff’s counsel be good, it was returned into the possession of the defendant, who surely then, had a right to sell, or detain till his consideration money was paid.

        Lickbarrow v. Mason, a decision on a bill of lading,

   Per curiam, delivered by

Spencer J.

The court are applied to for a new trial in this cause, on the facts stated in the case, and on discovery of new evidence. The plaintiff derives his title to the goods in controversy under Kin-■worthy, and the questions are, whether his fraud infects the plaintiff’s title ? whether possession followed the sale, so as to destroy the defendant’s right to stop the goods in transitu ? and whether the case is free from the operation of the statute of frauds ?

The question of fraud was fairly submitted to the jury* TMdr verdict shews that they believed the plaintiff, from the evidence before them, was not a party in Kinworthy’s ffaU(j on defendant, and I cannot perceive any reasons for questioning the conclusions drawn by the jury,' Fraud. *s oc^ous’ anc^ never to be presumed. The Circumstances set up, on.' which it is to be founded, are too light and evanescent. On this point, therefore, the defendant’s applir. cation fails.- '

The plaintiff having, as it must now be intended, fairly - gotten possesssion of the order for the cotton, received a delivery of it, and paid the storage. This acquiring of possession took away the defendant’s right to stop in transitu. The order itself is a delivery, so as to prevent the operation of the statute. Searle v. Keeves, 2 Esp. Rep. 598. But again, the sale is wholly free from that objection, by the delivery of possession under it. With respect to the facts upon which the defendant relies for a new-trial, on the discovery of evidence, it is to be observed,-) that the former was had in December last. It would b too loose to set aside the.yerdict on the mere expectation of a party’s being better prepared. There has been abundant time for the defendant to lay before us the facts in the knowledge of his witnesses. This ought to be done on all applications for new trials on discovered testimony ; or, if omitted, good rejason ought to be given for the omission. To listen to the application on this ground, would be to grant new trials wherever the party was dissatisfied with the verdict. The facts ought to be strong ones to induce the court to grant a new trial on the discovery of evidence, and the case should be free from laches. In the present instance, the defendant is chargeable with delay, anda the facts that he expects to prove, for aught that appears, rest in his own credulity.

If it should be admitted that Hyde never kept an account with the banks, it does not follow that the testimony given on the trial, is untrue. The witnesses did not say that Hyde drew the check, but that he loaned one. This 'might be, and it is to be presumed, was a check drawn by some other person. In my opinion, the defendant takes nothing by his' motion, and such is the judgment of the court


author: Thompson J.

text:
    Peter Ehel against John Smith.
    ALBANY
    August, 1805.
    IN ERROR on certiorari, the return set forth the warrant to have been directed to the constable of the town where the defendant “ dwelt/’ and thatthe plaintiff below, after declaring generally, thatthe defendant was indebted to him, delivered to the justice a book account, the greater pari of which was for tavern expenses. To this the defendant . , „ . pleaded m bar the 13th section of the tavern act, restricting innkeepers from trusting any persons, other than travellers, for a larger sum than 1 dollar 25 cents, for strong or spirit-ons liquors, or other tavern expenses. The justice, however, went on to trial, and the jury brought in a verdict in favor ci the plaintiff, for 25 dollars, of which sum they found 3 dollars 82 cents to have been for spiritous liquors,

      Golf assigned as reasons for reversal, that on the face ° .... or the record, it appeared the action was not maintainable, and also that the oath administered to the constable was not . to keep the jury “ together,” but only to keep the “ inquest in some private” place. This last objection he contended was, on the authority of the eighth resolution in Day v. Wilber,
       fatal. 5
    _ Simonds contra,
    ^ o insisted, that as the cause went to a jury, it must be intended the defendant was proved to have been a lodger in the tavern, and therefore within the exception of the 14th section.
    Gold,
    ^ _ in reply, said no intendment could be made against the record, and by that, it appeared the defendant below “ dwelt” in the town, to the constable of which the warrant was directed.
    If a plaintiff be' cit,ciare ^genera% against a defendant, that ]ie was “ in-book-account will be taken a.s Part bis and if it appear °n return to nave been for tavern expen-se3> plaintiff ought to shew that the defend* ant vvas withire ceptions in the 33th, section f the tavern act, aliter, if the that the de-tavern 'Ixpeí ses, for then the within them. error-books may be deliver-^ut* ffiey will not be al-jaxatioru 0°

       2 Vol. 137.

   Per curiam, delivered bjr

Thompson J.

. This .case comes before the court on certior aru Several exceptions have been taken to the return. We shall confine ourselves to that which relates to the declaration.

The account delivered must necessarily be taken as the plaintiff’s declaration, otherwise he sets forth no specific demand to which the defendant could answer. Although a plaintiff in a justice’s court ought not to be held to technical niceties in declaring, yet he ought to make it appear, that he has a sufficient foundation for bringing his action. and not by his own shewing, disclose that his demand was jjjegaj^ jgy t^e genera} terms “ tavern expenses,” the court must necessarily intend such charges as are prohibited ⅛ ^ section of the act pleaded in bar. Had he declared on a common book account, it might have been incumbent on the defendant, to shew that the account was for tavern- expenses, and the court here might intend, in favor of the judgment⅜ that he failed in doing that. But when the declaration states the demand to be tavern expenses, it lay with the plaintiff to disclose that the defendant-was u a traveller or lodger in his house,” in order to bring his account within the exceptions in the act, and give hiin a right of recovery. Not'having done this,.his demand, from his own shewing,- was illegal,- and the judgment in the court below, cannot be' maintained ; more especially as it appears expressly by the return, that three dollars and eighty two cents of the recovery was for tavern expenses. This precludes us from making any intendment that the illegal charges were rejected.* The judgment must therefore be reversed.

N. B. Gold delivered error books to all the judges, who said this was not prohibited from being done, but that they Would not be allowed for on taxation.


author: Per curiam.

text:
    Jackson ex dem’ Klein against Graham.
    ALBANY,
    August, 1805.
    in ejectment by a purchaser tinder a sheriff-⅛ sale, aga'mstthe debtor, who refuses to giifeup possession, the defendant cannot shew title in another, for the plaintiff comes into exactly such estate as the debtor had, and if it was a tenancy, the plaintiff will be tenant also, and estopped in a suit by the landlord, from the original tenant ^ same manner as

      THE plaintiff in this action shewed title by a regular conveyance from the sheriff of the county, under an execu-' tionupon a judgment in this court, signed and docketed on the twenty-third of October, 1802. He further established that before the entry of the judgment, the defendant had been, andthen was in possession of the premises.
    To rebut this testimony, the defendant offered to provey that one Ira Day was the real owner of the land; and for this purpose, produced a deed for the very subject of controversy, duly executed on the 15⅛ of April, Í802, by himself and wife, to Day¿ He further tendered witnesses to es^ tablish that at the time of sale, Day claimed the premises, and publicly forbade the sheriff proceeding in it; that Graham disclaimed all interest in the premises, and that-the name of Day was originally inserted in the consent rule, but had, by consent of tbe attornies been changed to that of the defendant, under a verbal agreement, however, to try the title of Day alone. The whole of this evidence being rejected by the judge, he directed the jury to find for the plaintiff, which they accordingly did.
    The application was to set the verdict aside, and grant a new trial.
    Williams, for the defendant
    T , , In ejectment, the piamtiit must recover on the strength of his own title, and his adversary may, therefore, shew it to be in another. The testimony offered would have done this, and proved Graham a mere tenant at will. If so, he had no legal transferable interest, either by his own act, or operation of law. The instant his estate was defeated, that of his landlord vested, disencumbered of all claims in virtue of the previous tenancy. Suffering the plaintiff to retain his verdict, will be only exposing him to another suit, in which he must be ejected.

      Foote and Van Vechten contra.
    A third person cannot interpose after a sheriff’s sale of property in the possession of a defendant. All that we claim is such right as Graham had in the premises. He clearly had some, for he was in possession. Atleast, the emblements were the defendant’s j and to those we must be entitled, as well as to six months’ notice to quit. We do not disturb the landlord’s estate.

      Williams in reply,
    urged, that a tenant at will could not insist on notice, nor was he, in a case like the present, entitled to emblements.
   Per curiam.

We are all of opinion, that the testimony offered by the defendant, was properly rejected. The interest of Graham was sold ; this cannot prejudice the right of the landlord. A purchaser under an execution, becomes quasi tenant, and if the defendant held only at will, the landlord might the very next day bring his action, and the vendee would be estopped from setting up a right in a third person. It is plain therefore, that the landlord can sustain no kind of injury. The same principle was settled in Kane v. Steenbergh, decided in October term 1799, in which we-held a purchaser under a sheriff’s sale, became quasi tenant, and that it was not to be presumed he held adversely. A contrary doctrine would open a door to fraud j because a defendant might allege an interest that could not be sold, and, if taken to be true, itmight defeat his creditor of a free» hold estate» The opinion of the court, therefore, is, that the plaintiff have judgment on his verdict.


author: Per curiam,

text:
    Haff against Spicer and Potter.

      If an affidavit pon entíname" it is a good signing.
    STARR took an exception to the affidavit on which the de^en^ant moved, because it was not subscribed by him.
   Per curiam,

it begins with his name, and that is sufficient.


text:
    Schermerhorn against Schermerhorn.
    picas may be set off against court. m thlS Judgments in the common
   ÍN this cause a judgment in the common pleas, was ál-lowed to be set off against one recovered in this court,


author: Thompson, J.

text:
    Haughtalling against Bronk.
    If an elector returned on the grand assize leave the state, the couit will grant a rule to add another to the pannel.
    TAN VECHTEN on an affidavit in a writ of right, setting forth that one of the electors, returned on the grand assize, bad left the state, moved to amend the pannel by adding ⅛
   -£⅛* curiam, as there is no opposition take your rule#

Thompson, J.

I do'not see how it is possible for the court to grant the motion. If they do, the elector will be appointed contrary to the act, and all proceedings uncles' such a pannel consequently void. My opinion is, that you should have a new elector appointed in the same way as the others. I think we have a power to order the sheriff to summon another pannel; but I do not think we can direct another elector to be added.


author: Kent, C. J. Livingston J.

text:
    Henry Hastie and John Patrick against Frederick De Peyster and John Charlton.
    ALBANY,
    August, 1805.
    „ On a re-as-suratice no a-necessafo^lho’ the primitive assuied.has abandoned to his insurer; and the re-assurer h lia-surer for all
    THIS was an action on a policy of re-assurance, in which . v j ’ a verdict for 10⅜9 dols. 26 cts. was entered by consent, in btvor of the plaintiffs, subject to the opinion of the court on the following case.

      Hastie and Patrick underwrote 1000 dols. of the prim!- . r tive assurance upon the body of the brig Sally, on a voyage frona Malaga to New-TorL During its prosecution the vessel was captured, carrricd into a port in Si. Domingo, and whilst there, Warren, the assured, abandoned to the plaintiffs who refused to accept; an agreement, however, was entered into, on her arrival-at NewSfork, by which the underwritten was empowered “ to take charge of the said vessel, and “ dispose of her to the best advantage, without prejudice to “ his claim or abandonment.” Under this authority he sold her at public auction, and shortly after commenced an action against the plaintiffs, in which, as the abandonment & , , , 1 , ’ was proved duly made, a recovery was had for a total loss, amountxng to 8f2 dols, 35 cts. after giving them credit for tbe proportion ox the proceeds to which they were entitled, The costs of the assured’s attorney were taxed in that ac- . , , ' , tion at 108 dols. 53 cts. those ox the now plaintiffs, at 30 dols. 56 cts. making with the sum recovered, and interest, the amount for which the present verdict ivas taken.
    C03fS \nna ⅜⅞ incurred in defending the suit by the ori-unc'er* . ally when, with poticeofits go. ingon,hestands by, and does ”,ot °fer to s?t* re-assurer is en-defenceagahS die insurer, urge^a^stthe primitive assur-necessary^for^ die original im-¡las keen obliged to claim°againstÉ him, and he to interest on all he has expend-e^’ an^
    It did not appear that the plaintiffs, upon the offer made to abandon to them, had abandoned to the defendants ; but on the very day the action was instituted on the original policy, they made a formal abandonment in writing, and? at the same time gave notice, that they should look to the defendants for every thing they might pay on account of their subscription and the then suit. They Further notified the coming on of the cause, that, as the defendants were ul-iimately looked to, they might aid by bringing forward any defence in their power.
    Upon the above facts, these points were raised : 1st, Can 'the plaintiffs recover the 872 dols. 35 cts. without any other abandonment, than that set forth ? If nay, is more to be recovered than an average loss for the capture and detention ? 2d. Are the plaintiffs entitled to recover the 108 dols. 53 cts. costs paid to the attorney of the primitive assured? 3d» Are they entitled t© recover those paid their own attorney ? 4th. Can they claim interest on any, and which of the above sums ?

      Caines and liarison for the plaintiffs.
    The questions on this case resolve themselves into two. Can the plaintiffs recover without having abandoned ? If they can, what is to be the extent of that recovery ? It is settled by the decision of this court, in Earle v. Shaw, that on a primitive insurance it is not necessary to make an abandonment, be^ cause tbe party may always recover according to his loss, , . . . , , . . , . , at the time of action brought. If this be so with respect to an original policy, where the contract is founded on proper* ty, it must, a fortiori, be so, where the risks assumed by the first insurer constitute the basis of the engagement. It is to indemnify against loss by these, that the re-assurer undertakes, and the hazards of the first contract, are the foundation of the second. 1 Emer. 248. It is on this principle, that there is no connexion between the re-assurer and the primitive assured, or his property. Marsh. 112. Park 276. If an assurer fail, the assured has no lien on the re-assurance, in preference to other creditors. 1 Emer. 248, The only reason why an abandonment has ever been required, is, that on a technical total loss, the subject matter is transferred by a demand on the underwriter, who then becomes a vendee, as it were, of the property, and liable for the consideration. On payment of the loss, he is an absolute purchaser. This reasoning can never apply to a re-assurance. To abandon property, the assured must have some in himself. The assurer has none ; it is impossible then that he can abandon. To enable him to do it, he must first accept; and the result would be, that wherever a reassurance was effected, there would be no defence on a claim for a technical total loss. For, to entitle the assurer to recover, he would be obliged to abandon ; and as he could not abandon property which he had not, without first accepting, he would accept in order to be able to recover. The only thing necessary to prove on a re-assurance on a ship, is the value, and that the plaintiff did insure. In a reassurance on goods, the shipping of them is also required. 1 Emer, 336. Pothier, n. 153. In the case before the court the defendants have the full benefit of an abandonment. The value of the property is carried to their credit. If we are right on the first point, the next enquiry is, what ought we to recover ? The whole of what has been paid. Roccus 7io t. 12 says, “ isle secundas assecurator tenetur.ad sohendum omne iatum quod primus assecurator solverit.’’ That this will exceed the amount insured is no objection. Under the clause authorizing the plaintiffs to “ work, labor, &c.” on account of the defendant, every thing bona fide expended ia to be recovered, though, it surpass the sum in the policy. Smith v. Scott., April 1795, confirmed by Lawrence £s? Whit-neu v. Van Horne Clarkson, 1 JV. 21 T. R. 284. Whether the conduct of the plaintiffs was bona fide or not, the case will shew ; and indeed, as the written abandonment was only in consequence of the defendants’ seeming to think one necessary, it is possible a good and legal, though a verbal one, might have been previously made. The general principle in contracts of indemnity is, that ail costs incurred shall be paid. Mayor v. Steward., 4 Burr• 2439. Goddard V. Fanderheyden, 3 Wils* 262.

      Evertson contra.
    The assurer, and re-assurer stand in precisely the same situation with respect to each other, as the assured and his assurer; whatever then is necessary to entitle to a recovery in one case, is also in the other. It is more peculiarly requisite on a re-assurance, than on an original policy. Because the re-assurer is liable over; and in all cases of ulterior responsibility, notice is indispensible. The reason is obvious; that he may either aid in the de-fence, or, by satisfying the demand, avoid an increase of expense. This privilege has been taken from the defendants, and as they stand in the light of sureties, the court will, -in favor of them, lay hold of every act and omission of their principals, by which they may be injured. Law v. the East= India Company, 4 Ves, J, S33. Considering the plaintiffs as our agents, it was their duty to have given us every information that might lessen our loss. Not having done so, they have no right to look for indemnity. The cases cited as to costs do not apply. They relate to persons claiming from another, on account of an injury sustained by his act. But there is an authority in point to shew no costs of the suit against the plaintiffs ought to be allowed. Seller v. Work, 1 Marsh. 207. An insurance-broker had omitted to communicate part of the information contained in bis order to insure, and in an action against him, the plaintiff wishad to include the costs of a nonsuit against the underwriter, but Lord Eldon ruled they could not be recovered, as there was no necessity for bringing the action. So here had the abandonment been made to us, a suit on the original policy might have been avoided.

      Marisonm reply.
    To w arrant arc co very on a re-assurance:; the same measures cannot be required from the assurer, as, Qn an original policy, would be demanded of the assured,. He must prove interest and loss before he can. claim, This cannot be asked of the insurer who has no interest. Wher- , _ , ... . ever therefore the contracts vary in their natures, the procedures differ also. In the case from Marshall, the plaintiff in both suits, was the same person. He was not defendant in one, and plaintiff in the other, and therefore the reasoning of it is totally inapplicable.
   Per curiam, delivered by

Kent, C. J.

Upon the first and most material question in this case, very little information can be found in the English books, as re-assurances are rendered unlawful in most cases, by the statute of the 19 G. 2. But re-assurances are valid and usual contracts in France, and from the general principles applied to them by the French writers, it appears that the contract of re-assurance is totally distinct from, and unconnected with, the primitive insurance, and that the re-assurer has nothing to contest or settle with the primitive assured. The insurer therefore, who makes re-assurance for his own indemnity, is obliged to prove the loading and value of the goods in the same manner as if he was the original insured. It is however, usual for the policy of re-assurance, to contain an express provision, that the re-assured shall only be obliged to produce the evidence of payment of the loss, and the re-as-surer will be bound to refund it. This special contract obliges the re-assured to act with good faith, but leaves him in all other respects to his own discretion and prudence, in admitting or contesting the claim of the first insured. Pothier, n. 153. 1 Emer. 247, 8. 250, 2. 336 to 340. But when no such special contract is made, and none was made in the present case, the re-assurer will be obliged to pay, all that the first insurer ought himself to pay ; and this will impose upon the first insurer the burthen of proving the existence and extent of the loss. When he has done that, he has done ail that v/as requisite to entitle him to his indemnity. The notion that he must give notice, or abandon to the re-insurer, as soon as the first insured has abandoned to him, does not appear to be well founded. There is no such ruh; that appears to be prescribed in any of the books, and it does not necessarily arise out of the nature of the contract. The re-insurer has no connexion, or concern with the first insurance, and is, at all times, bound to indemnify his own insured, when the other can shew that he has been damnified in consequence of the first insurance» The re-insured must take care, at his peril, that the claim against him be wellsup-ported before he admits and satisfies it : for the re-insurer will be entitled to avail himself of every defence, that the first insurer might have urged. This is a fundamental principle in the law of securities. And if the re-insured proves the original claim against him to have been valid, when he resorts over to the re-insurer, he then makes out a fair case for indemnity, and such a case is made out in the present instance. Warren abandoned the vessel during a total loss, and the plaintiffs were inevitably fixed with the payment of that loss.

The next question is, whether the defendants are bound to pay the costs that the plaintiffs were put to, in defending the suit brought against them by Warren f I am of opinion that they are. On the day that the suit was brought against the plaintiffs, they gave notice of it to the defendants, and the latter might have come forward, and prevented the suit, by payment of the sum demanded. As the plaintiffs were bound to know at their peril, that the claim against them was valid, and gave notice to the defendants as soon as the legal demand was made, they were justified in submitting the claim to the decision of a court of justice, and the costs which necessarily arose in that suit, might be considered as incurred upon reasonable grounds, and for the greater caution and safety. From the cases of Goddard v. Vanderheyden, 2 Black. Rep. 794, and Mayor v. Steward, 4 Burr. 2439, it would seem that such charges are allowed, as composing part of a claim for indemnity % and as interest upon all sums advanced, follows of course, I am of opinion the verdict as taken, ought to stand.

Livingston J.

This is a case of re-assurance. These contracts being prohibited in England., unless where the first insurer becomes insolvent or dies, we cannot thence expect any aid, in construing policies of this kind. A recovery is here resisted, because no abandonment was made-to tbe last insurer. From the nature of the contract, I think none was necessary-. We must not confound a re-assurance with the original policy, nor consider a party to the former as in the shoes of the first underwriter. This engagement is to make good all that the first underwriter shall lose or become liable to pay. “ Secundus assecurator,” says Roccus, “ tenetur ad solvendum omne totum, quod ■primus assecurator. solverit” The original insurer then, notwithstanding his precaution in obtaining this indemnity, has a right to • defend himself in any way he thinks proper against the party with whom he contracted, between whom and the re-insurer there is no privity at all. He is not bound even to consult the latter, which however, he will hardly fail to do, when in his power, and which I have no doubt was done here. He is not obliged to accept of an abandonment, and then, as was the case here, he can have nothing to abandon. In short, he may controvert the plaintiffs’ right to recover, or pay without suit, as he shall think proper ; only taking care to act with integrity and good faith. If he settles without suit, probably he would be obliged, as against his insurer, to shew that the loss was justly due. If doubtful of the solvency of the party to whom he must ■look, he may be desirous of reducing the loss as much as •possible ; or he may apprehend a bankruptcy not very distant, which may make it his interest, if satisfied that -the loss be fair, to pay it immediately, so as not to be delayed in his recourse against his underwriter. ' It would be to tbe disadvantage also of a re-assurer, to compel his assured, in ail cases, to accept of an abandonment, which would be necessary, if he himself be entitled to one. This species of contract, although not allowed in England, is permitted •by most of the commercial states of Europe, and when confined to its proper object, is reasonable and beneficial. We should not therefore impose on the assured in such a policy, a line of conduct unnecessarily strict or difficult to pursue. I prefer therefore, leaving him as much at liberty as if he had no ulterior responsibility in view, without compelling him to act in conjuuction with, or under the con-troul or advice of the second underwriter ; not permitting him however, which must be a matter of, course, to throw on tbe latter tbe expense of defending a suit brought by the briginai insured,vif he wiil, on notice of such action, which ought to be given as early as possible, pay* or tender the sum demanded by him. On the very day JVarren com-menees his action, the plaintiffs give notice of it to the defendants, who take no one step to prevent its progress to final judgment. All the costs, therefore, of that suit, both plaintiffs’ and defendants’, are a proper charge in this, especially as it is not pretended that its defence wac unnecessary or improper. The defendants’ counsel having conceded that interest is a proper charge,- if their clients be liable for íhe principal'sum, I am for the plaintiffs on all the points made, and they must have judgment accordingly.


author: S&encer, J. Livingston j. Thompson, J. Kent, C. J. Tompkins, J.

text:
    James Jackson ex dem’ Jacob Frost, against Daniel Horton.
    ALBANY,
    August, 1805.
    EJECTMENT for lands ⅛ the county of WesUChesier. The declaration served, was captioned of August term, * ^ 1803, and the consent rule entered of the November term following. At the trial, the defendant insisted, that the plaintiff was barfed from maintaining his action, by virtue óf the provisions of the law of the 28th of March, 1797", t Rev. Laws, 162, limiting to five years, the period for bringing claims and prosecutions against forfeited estates^ To do away the force of this objection, the plaintiff proved a suit by the present lessor, instituted on the lOchof June, 1801, against Abijak Whitney, then tenant in posssssion ,* which action was afterwards defended by Henry Strong, as landlord, who died pending the same, and before there was an op»' portunity of bringing it to trial. That immediately after-wards, another suit was commenced against Whitney, who still continued in possession, but before the cause could be hoard, he also died, and, that, as soon as his' death was Known, the present ejectment was brought.
    jf an- act¡on- j,e instituted under the statute ot the 28th of March, 1797, within the five years thereby limited, and it abate by the death of the defendant, who dies after the five years have expired, whether another action, though instituted directly after, can be maintained qu.
    The case now came before the court on this single point -, whether the above circumstances were sufficient to prevent the operation of the act ?

      Woods for the defendant.
    The intention of the legislature was to quiet all claims on forfeited property. The only exceptions allowed by the statute, are infancy, coverture, v-tod insanity. Death of a defendant is not mentioned, and therefore cannot be urged. I know not of any decision ex* " aclíy *n ?°⅜ but the principle of Lloyd v. Vaughan, 2 Sira. 1237, seems analogous to the present case. There, on er-jW to reverse a recovery, because the tenant iu tail, who Ktos vouched as a Jeme sole, was under coverture, the defendant pltaded in bar the 10 W. 3. c. 14. limiting to twenty years, the period for bringing writs of error to reverse common recoveries. The plaintiff replied that his title did not accrue till the death of tenant in tail, yet, because more than 20 years had elapsed from the suffering the recovery, and the act was for quieting estates, without any saving as to the time when the tide accrued, the court, on demurrer, gave judgment for the defendant. So, in 1 Lev. 31,' that the courts were not open during a rebellion, was held no bar to the statute of limitations, because not within any of the savings. The institution of a former action in time, will not make the present action in season. Wilcocks v.' Huggins, 2 Stra. 907. To avail of former proceedings in saving a limitation, they must be continued.

      Riggs contra.
    Courts, in construing statutes of limitation, have never confined themselves to the very letter, but have, in many cases, adopted an equitable interpretation, according to the spirit of the clause, by which a year ■is given after reversal on error, or arrest of judgment, to ' commence a new suit, though the period limited lias elapsed. Thus, with respect to executors, Mm assumpsit, they sue out process within a year after the six years have expired, the action is held to have been brought in time. This principle is acknowledged in the very authority of Wilcocks v. Huggins, cited from Strange. In Story v. Atkins, 2 Stra. 719, levying a plaint in an inferior court, was held a good replication to a plea of the statute of limitations, In a superior. So here, as the first action was brought in time, the present ought to be held a continuance of the first suit. To do it by journeys accompts was forbidden by the nature of .the action ; as it is commenced without process. A new suit was therefore the only mode, and in ejectment, which Is an action peculiarly under the equitable, control of the court, the equity adopted in construing other cases under the statute of limitations, ought to govern. It is inferable from the words in the act, which di
      Xect only the suit to be prosecuted within the five years, but ¿o not say with effect,* The plaintiff did prosecute his claim within the period, and surely it is not to be preju» diced by the death of the defendants, which was the act of God. Rather than suffer a clear title to be thus defeated, the court would give leave, to enter in. the original suit, judgment against the casual ejector, mine pro tunc.
    Woodworth, Attorney General, in reply.
    The court are bound by the express terms of the statute. The equitable interpretation insisted on, arises out of the words of the u act for the limitation of criminal proceedings and of ac-u tions at law»” There are r.o such expressions in that relied on by the defendant. The reason which- induced the legislature to pass the act, prohibits the construction-urged on the court. It was to quiet aud extinguish claims-on forfeited estates ; it is against the policy of the law, which was not enacted till 13 years after the state confiscated the property cf its enemies, to protract the time before it can take effect. Three cases only were excepted from its operation; the court cannot make a fourth. The intent of the law was, in all cases not saved, to inhibit the bringing an action after five years, and as the interests of the people are implicated, a longer time cannot be allowed.

        Prideaux v. Webber.

        1 Rev. Laws 562.

   S&encer, J.

Upon the state of facts in this case, two questions arise. 1st. What is the effect of the statute of the 28 th of March, 1797, on suits instituted after the expiration of five years from its enactment ? 2d. Will the peculiar circumstances of this case exempt it from tire operation of that act ?

The first section of the statute enacts, that no persons who have, or thereafter shall have, any estate to any lands, supposed to be forfeited to the people of the state, by the attainder or conviction of any person, for any act or crime done during the late war, and which had been theretofore granted or conveyed by the commissioners of forfeitures, shall, after the expiration of five years from the passing the act, have, prosecute, sue or maintain, any action or suit at law for the recovery thereof, against the right or title so granted or conveyed by the people of this state.'

The second section of the statute enacts, that if any persons shall, and do, at any time after the period of fft e years, sue or prosecute anv suit or action at law, or malte J \ 1 any title, or claim, in, or to any of the lands granted as aforesaid, that then such pei-son, so suing or prosecuting such action, shall thenceforth be utterly barred for ever of all and every such suit, or action.

The third' section protects the rights of infants, feme coverts, and insane persons, allowing them the period of five years after their disabilities are removed, to bring, sue, and prosecute their suits or actions.

There is a material difference in the phraseology of this act, and the common statute of limitations. The latter requires the suitsho be commenced within the periods designated ; the present not only requires the suits to be brought within five years from the passing the act, but declares, that no person, after that period, shall have, prosecute, sue, or maintain any action or suit at law, for the recovery of lands sold by the commissioners of forfeitures.

The reasons for an act savoring of such rigor, are explained in the preamble to it. The title deeds and documents relative to forfeited estates, had been carried away by the former proprietors, whose conduct caused their forfeiture, and the title of the state resulting therefrom, became peculiarly liable to be obscured or defeated. From the expressions used in the first and second sections of this statute, it appears to me, that the sense of the legislature is plainly manifested to be, that, except as to titles accruing after the passing the act, and the cases of infants, feme coverts, and insane persons, they meant to inhibit the maintaining any suit, without reference to the period of its commencement, after the expiration of five years from the passing the act. I do not feel myself at liberty to nullify an act of the lev gislaturc, in the face of expressions so conclusive.

If, however, the law should be construed to relate only to the commencement, and not the maintenance of suits, the objection is conclusive, that these actions were brought too late.

Courts have allowed a year to commence a new actiop in case of executors, if the limitation had not attached op the death of "he testator ; but this was done as being with? in the equity or the proviso in the statute, giving the plaintiff a year to commence a pew action, where the judgment is arrested or reversed. The present statute has no such proviso as is contained in the statute of James, or our statute of limitations ; there is, therefore, no ground on which to raise an equitable construction, so as to embrace the case of the lessor of the plaintiff. It has been justly •remarked by his counsel, that his case is a hard one, as he had commenced two ejectments within the period required, both of which were defeated by the deaths of the defendants. Suggestions of this kind cannot alter the language of the law. In the cases of Prideaux v. Webber, 1 Lev. 31, and Lloyd v. Vaughan, 2d Stra. 1257, the statute of limitations was pleaded, to which it was replied, that certain rebels had usurped the government, and none of the King’s courts were opened, yet the whole bench gave judgment in favor of the defendant, that the statute of limitations was a good bar, “ although the courts were not open, because there is not any exception in the act of such a case, and infants had been bound thereby, if they “ had not been excepted.”

It is only necessary to add, that in my opinion, without we repeal the statute, the plaintiff cannot recover.

Livingston j.

As the first action, which was commenced in time, was not prosecuted to effect, by reason of the defendant’s death, but was renewed a second and third time, on the same account, I inclined to think, on the trial, that the plaintiff was not barred. It has been my wish ever since, to adhere to this opinion, but with every ’caning towards the plaintiff, who has a good title to the premises, I am compelled to abandon it. His situation is a very hard one, but the hardship is not of our creating^ The legislature has thought proper to force those, who claim title to forfeited estates, to bring their actions within a certain period, and although it may not have been 5in-tended to take advantage of the act of God, its language is sufficiently strong to preclude our interference, whatever ■injustice may be produced. After prescribing a term, it is declared, that, “ if any person shall thereafter sue, he a shall be utterly and forever barred from a recovery if, Aen, this suit were not commenced within the period debited,, what pow.er or right have we to relieve the party f or take his case out of the plain, letter of the law ? Courts-, it is true, have considered cases, which would have been, barred by the letter, as within the equity of certain prov i« sions of the statute of limitations; thus, if a first judgment be arrested or reversed, a year is allowed to bring a new action, and so ioties quoties; and the equity of this-proviso has been extended to an executor, who sued out' process within a year after his testator’s death, if six years had not elapsed when he died; but here is no proviso5 within the equity of which this case can be brought. Infancy, coverture, and insanity, are alone saved. No other impediment or contingency is provided for. Neither of these disabilities, nor any resembling either of them, existed here ; so that we cannot, without legislating, help the plaintiff. It is certainly much better to permit a statute,, now and then, to work individual hardship, however great, than by too liberal an application of what may be supposed rules of equity, to render its provisions uncertain or nugatory. By too great indulgence of construction, the statute of limitations, passed for the most salutary purposes, is become in a great measure, inoperative, if not a dead letter. A person can hardly open his mouth, even to deny an old debt, without exposing himself to an action for it • although the remedy had been barred for many years. If its object were to prevent controversies about stale demands, courts have been ingenious to defeat it, by permitting the loosest expressions to ensnare the unwary, and prevent its attaching, notwithstanding the most positive declaration, that an action shall be commenced within a certain time, subsequent to its accruing, and not after. Although I shall always feel bound by these decisions, in cases where they apply, I am not desirous of extending them, and therefore do not think myself at liberty, to depart fi oni the very imperative tone of the law, now under consideration. Without repealing'it, or making a new law, this suit cannot be maintained. Ita lex scripta est, will be a sufficient answer to any complaint of hardship or inconvenience.

“ When the words of an act are doubtful and unce r.« tain,” says the great and learned lord chief justice [⅞⅛, " it is proper to inquire what was the intent of the legis- , , 1 . . . j- • , , , At lature, but it is very dangerous tor judges, to launch too u far in searching into the intent of the legislature, v/hon <l they have expressed themselves in clear word::»” In the present case, the terms are too explicit to leave room for interpretation, or the smallest obscurity on the meaning of the legislature. My opinion, therefore, is, that jueby ment of nonsuit be entered.

Thompson, J.

The only question submitted to the consideration of this court is, whether the plaintiff be not barred from maintaining his action, by reason of the act of the 28th of March, 1797 ?

This statute requires suits, in cases like the present, to be brought within five years from the passing of the law. A suit, for the recovery of the premises in question, was commenced within the time limited, and abated, by the death of the then defendant. Another action was forthwith commenced, but not until after the time limited, which also abated by the death of the then defendant. The present suit was thereupon immediately brought. These facts, thus concisely stated, are those which will, I think, take the case out of the letter of the statute. No laches is attributable to the Flaintiff. He commenced his first suit in-due season, and the whole delay has been occasioned by the death of the parties. I think the case comes strictly within the maxim, that the act of God shall prejudice no man. 1 Rep. 97. b. It would be highly un= reasonable, that those things which are inevitable by the act of God, which no human vigilance or industry can avoid, or prevent, should be construed to the prejudice of any person in whom there was no laches.

Thus in the case of the statute of limitations, pleaded to actions by executors on simple contract debts, it has feeen decided, that if the six years be not elapsed at the time of the testator’s death, it will save the bar, by reason of the limitation, if the executor take out proper process within a year, although the six years be elapsed before process sued out.

This, however, is said to be within the equity of the sta-inte, which give* a year t© commence a new action, in ea.-ie the first judgment has been arrested or reversed. Bull- Jv. jr-, „ T . . ,» ,. . C t InO. i am not able to discover the application oí tne reason to the rule. The object of the statute was to make provision where delay had been occasioned by the aetc' oí the law, and is confined to the two cases where judgment had been reversed or arrested. The proviso has no reference ■whatever to cases where the delay has been occasioned by death. The reason assigned* will, at all events, shew that courts will go great lengths to prevent the application of the statute of limitations.- But- the exceptions out of it have been carried still' further» It bas been ruled, that where an executor brings assumpsit, but dies before judgment, and the six years run, his executor may, notwithstanding, bring a fresh action, if he bring it in a reasonable time, which is to be left to the discretion of the court, up-' on the circumstances of the case.

This principie is strongly fortified by the case of Wilcocks v. Huggins, f where the court would not sustain-^16 act‘on the plea of the statute of limitations, by reason of the delay, there having been a lapse offour years between the death of the first executor, and the commencement of the then suit. But they say, if the second exe-" tutor had been retarded by suits about the will or administration, and he had shewn that in pleading, it would have been otherwises because, then, the neglect would ha-⅜c been accounted for»

If circumstances like these, Would prevent the statute of limitations from running- against a claim, a fortiori' ought the death of a party l It is said, however, the statute is positive, and contains no provisions for cases like the present. It is true, there is no express provision, but I consider the case as coming within the spirit of the act.The object of the legislature was to expedite the prosecution of claims, against lands that had been considered as-forfeited, and although the present action cannot, technN caily speaking, be called the same as the one first com-1 menced, yet it is the same claim, followed up with all the dispatch in the power of the lessor of the plaintiff. The legislature could not have contemplated the application of She statute to a- case like the one before us. Delay occa-» sioned by the act of God, forms an exception ex necessitate rei, without any express provision. I am therefore of opinion that the plaintiff is entitled to judgment.

Kent, C. J.

The statute of limitations which is set up by the defendant, was passed the 28th of March, 1797, and declares, that no person having any right to lands, supposed to have been forfeited, and heretofore conveyed by the commissioners of forfeitures, shall, after five years, have any suit for the recovery thereof, against the title conveyed by the people, with a saving nevertheless of the rights of infants, feme coverts, and persons insane.

The present case is not within any of the exceptions in the act, but is, at least, within the equity of those exceptions. The statutes of limitations were formerly construed with extraordinary rigor against the plaintiff, as in the cases of Prideaux v. Webber, 1 Lev. 31, and 1 Keb, 157, and of Bremion v. Evelin, 1 Lev, 111, in which the replica dons, stating that the Kingss courts were shut during the rebellion, were held to contain no excuse, because, not a case within the exceptions of the statute. A different and more reasonable construction prevailed, however, in this court, in the case of Sleght, administrator, &c. v. Kane, decided in April term, 1799. That suit was on a promissory note dated in 1777, The defendant pleaded the statute of limitations. The plaintiff replied, that the defendant was within the British lines, in the southern district of this state, under the power and protection of the British, from 1777 to the 24th of November, 1783, when he departed this state, and that the suit was brought within six years after his return. The defendant rejoined, that he did not join the British till after the cause of action arose, and on demurrer, the court ruled, that being within the British lines, which were held by right of conquest, was being out of the state, as it respected the statute of limitations, and gave judgment accordingly for the plaintiff. This decision was a liberal construction, if not extension of the exception in the statute. But whenever the plaintiff has brought his suit in season, and that suit has failed, in consequence of the act of the defendant, or of the act of God, and a new suit has been commenced with due diligence, although after the limitation had expired, ⅛⅞ defendant seems never to, bave been allowed to avail himself of the statute m bar of the new suit. Thus, in the case of Mathews v. Phillips, 2 Salk. 425, the plaintiff brought his suit in an inferior court j while it was pending there, the six years expired, and the defendant removed the cause by habeas corpus, into the King's Bench., where the plaintiff was obliged to declare de nova, and the defendant pleaded the statute of limitations; the court held, that the plaintiff might reply the suit below, not for the reason that the suit above was a continuation of it, but hecause the plaintiff had rightfully and legally pursued his right, and it should not be in the power of the defendant to defeat him of .a remedy without any default. It has also been repeatedly held, that where the creditor brought his action before the expiration of six years, and died pending the suit j but af - ter the six years had expired, the executor had one year at least, after the death of the testator, to renew the suit; and if the new suit had been retarded, by contests about the will or administration, then a longer time would be allowed, as this would be accounting for the neglect. Salk. ub. sup. and 2 Stra. 907. The analogy is so complete between the case of a suit, within the time of limitation being defeated by the death of the plaintiff, and by the death of the defendant, as that the same rule ought to apply in both instances. The delay arises from the act of God ; it would therefore be unjust, and against the general maxim of law, to make that event work to defeat the party of his remedy. The judges, says Plow den, page 205, “ have “ ever been guided by the intent of the legislature, “ which they have always taken according to the necessity “ of the matter, according to that which is consonant to “ reason and good discretion.5 Following the rules of sound and established interpretation, it is difficult to suppose the legislature intended to save the party’s right, in cases of marriage and infancy, and not also in such as the present, where the death of the possessor defeats it» We are rather to conclude, that they considered the present case as already provided for, by rules and decisions long established and universally approved. There is the greater reason, why the present case should be brought within the 'equity of the exceptions to the statute, because the act prescribed a úew, special, and rigorous rule against particular claims. It is therefore, not founded on general and equal principles, and moreover, it took away from the party, a right with which he was antecedently vested, the right to bring his suit within 20 years. The conduct of the lessor of the plaintiff, in bringing his first suit within the new limitation of five years, and in reviving it with all possible diligence, as often as it was abated, by the death of the defendant, is analogous to that of the dissesee, who made «nSlnual claim, which was admitted, by the common law, to save the right of entry from being tolled by descent»

But if the statute is absolutely binding in every case not expressly mentioned, yet the plaintiff is entitled to relief in another way» When Strong, the landlord, was made defendant to the first suit, he was not joined with the tenant, who must have refused or neglected to appear, and by she statute, 1 Rev. Laws, 146, judgment ought to have been entered against the casual ejector, and when the landlord was admitted in his stead, the rule prescribed by the act is, that execution upon the judgment, against the casual ejector, stay until further order. Why this judgment was not entered, does not appear; but as it ought to have been done, and as the plaintiff is now to lose his right forever, by reason -of that omission, I think we ought to do here, as is the common practice in a thousand other instances, grant a rule, that judgment be entered against the casual ejector, umc pro tunc, and that the plaintiff be at liberty to proceed upon that judgment.

Tompkins, J.

Gave no opinion, having been concerned.

The Bench, being thus divided,, the parties, by ad-sice of the court, agreed to turn the facts into a special verdict, and carry the caseto the court of errors«

       Act limiting, the period of bringing claims and prosecutions against forfeited estates.
        2 Str 907, Cowp. 548.

         Shelly's Case.

       Fitz. 81. 170. 289. 2 Stra. 907. Esp. Di. 160.


author: Tompkins, j.

text:
    Edward Ferris against John B. Coles.
    ALBANY
    August, 1805.
    DEBT by the inspector of New-Tork, for two penalties under the act for the 46 inspection of flour and meal,” subject to the opinion of the court, whether he was entitled to recover both, one, or neither.
    Under the “ act “ for the in- “ spection of “ Flour and “ Meal,” on such only as 5r purchased, ma-inii'ucuued, or shipped for exportation, do the penalties attach, and if an inspector, without being requested, inspect against the will of the proprietor, Iho’ every cask be deficient in weight, and falsely tared, debt will not lie for tiie penalties, unless it appear the flour or meal was for exportation.
    The declaration stated, that “ Edward Ferris, who sues “ in this behalf, as well for the poor of the city of New-Tork^ u as for himself, complains of John B. Coles” íkc. u that “ he render to the said poor; and to the said Edward, who 46 sues as aforesaid, five hundred and thirty-seven dollars “ and sixty cents, which he owes to, and unjustly detains “ from them. For that, whereas,” by the act it was enacted, that all wheat flour “ manufactured for’exporation,” should be packed in casks of a certain length, containing a certain number of pounds, “ the tare of each cask to be respective- “ ly marked on one head with a marking iron,” the * net weight only of each cask “ packed as aforesaid,” to be branded on it, and that the manufacturer or owner of any flour put up in casks, should “ be subject to a penalty of “ 50 cents, for every pound such cask was tared less than “ the true weight thereof, and any inspector of flour or “ meal, having reason to suspect such cask or casks to be “ falsely tared, might ascertain the same by a suitable ex- “ animation thereof,” and further, “ that it should be the “ duty” of the inspectors, “ upon application to them made, “ to examine and determine the quality of such flour,” and-u from time to time to weigh such casks of flour as they “ should suspect of being too light; and if found not to “ contain the just and true weight, to mark or brand the u same on the head with the word Lights and for each cask, “ which they should so mark or brand, they should be en- “ titled to receive from the owner, for their trouble of “ weighing the saíne, the sum of twenty cents for every « barrel,” and the manufacturer of such flour to “ forfeit “ and pay for every pound weight of flour deficient, the “ sum of twenty cents,” the same “ to be recoverable be- “ fore any justice of the peace, or in any court of record “ in this state having cognizance thereof, by any person, “ who would prosecute for the same, one half to the prose- “ cutor, and the other half to be paid to the overseers of “ the poor of the city or town, where the fraud was detect- “ ed the declaration then set forth, that the defendant, after the passing of the act, to wit, on &c. was “ the owner u of 384 half-barrels of flour tared two pounds each, less a than the true weight thereof, by reason whereof, and by et force of the said act of the legislature of the state of Nexo-u York, an action hath accrued to the said Edward, who a sues in this behalf, as well for the poor of the said city of “ New-York, as for himself, to have and demand of the said “ John, the sum of 084 dols, parcel of the said 637 dols. u 60 cts» to wit, the sum of 50 cts. for every pound each “ of such casks was tared less than the true weight,” and also, “ that the said John was the manufacturer of 384 “ half-barrels of flour, which contained two pounds each, ic less than the weight branded thereon, by reason, &c. an action had accrued, &c»” “ to have and demand of the said 5t John the sum of 153 dols. 60 cts. (residue, &c„) being u the sum of twenty cents for every pound weight so do-61 ficient,” yet, &c. “ to the damage of the said Edward, of ie 537 dols. 60 cts.” Plea the general issue, and joinder.
    It was admitted that the plaintiff was required by the defendant to inspect 72 half-barrels of flour, which proved to be not only falsely tared, but deficient in quantity, and that the penalties thereby incurred were duly paid. That at this time the defendant had in his store 384 half-barrels, which had a few days before been inspected, and regularly marked and branded by the plaintiff, but that, cn his finding the above deficiency and falsehood in the tare, he insisted on re-inspecting them, which the defendant refused to permit, and absolutely prevented from being done. It was further admitted, in order to try the plaintiff’s right to inspect and weigh without request, that all the half-barrels were deficient in weight, as well as falsely tared, and that the defendant was both owner and.manufacturer.
    To the case detailing these facts and pleadings, the defendant subjoined the following points, as what he should rely on in argument. 1st. That the declaration makes a demand, and requires judgment to be rendered for the poor of the city of Nexo-York, and Edward Ferris, whereas such a judgment cannot be given by law, under the act on which the suit is founded. 2d. That it is not averred in, nor does it appear by the plaintiff’s declaration, that the 384 half-barrels of flour, alleged to have been falsely tared, and deficient in weight, were intended for exportation, without which the penalty would, not arise.

      3. That the plaintiff having once regularly inspected, marked and branded the said 384 barrels, was precluded from, afterwards saying they were falsely tared, or contain - ed less than their due quantity.
    4. That the plaintiff had no right to inspect or examine without request.

      Riker for the plaintiff»
    The first point raised, resolves itself into this; that the declaration is on behalf of the plaintiff, and the poor of the city of New-Tork, instead of being on behalf of himself and the overseers of the poor. It is, in effect, the same thing, for the overseers are to distribute and pay over to the poor, who are the persons actually interested. To name them was unnecessary, and totally insignificant. Frederick v. Lookup, 4 Burr. 2019. French v. Wiltshire, Andrews, 67. The action is given to “ any person who will prosecute for the same.” It might therefore, have been in the name of the plaintiff only. This was settled by the third resolution, in the first of the cases adduced. The answer to the second objection of the de» fendant is, that in the section of the act by which the penalties are imposed, general expressions are used, not confining them to flour, &c. intended for exportation, respecting which the antecedent clause contains directions. It must have been equally the intention of the legislature to protect the citizen from fraud, as well as the stranger, and this was the reason of the generality of expression used in regard to the penalties. The construction we contend for derives support from the 7th § which supposes an inspection previous to that on exporting. The third point receives an easy answer. The 384 half-barrels had been inspected and branded only as to quality. Such a circumstance could never prevent the right to inspect the tare and quantity. An attention t© these two different objects of inspection, will remove all doubt on the last objection. Request is necessary to inspect, for the purpose of ascertaining the quality of flour to be exported; but not to detect imposition in weight and tare, and prevent defrauding the community.

      Riggs contra.
    The authorities cited are under the English statute of the 9 Anne c. 14. s. 2. By the words of that act it is expressly ordained, that “ it shall be sufficient for
      a the plaintiff to allege the defendant or defendants is orare a indebted to the plaintiff.” No such words are in our law* In the case from Andrews, the plaintiff used words notmen-tioned in the statute. That gave the action to the informer, and the plaintiff in stating the per quod actio accredit said, iC to the king, the poor,” and the informer, upon which the court decided, that naming the king and the poor was sur-plusage. Our objection is not, that the plaintiff has said too much, but too little. He ought to have specified the overseers of the poor* A decision therefore on redundancy, cannot apply to an exception for deficiency. In the present instance, the court must find words giving authority to pronounce judgment in favor of the poor, or none can be rendered on this record. It is to be observed that the part of the declaration we complain of, is in the demand of the debt. The render is asked for the plaintiff and “ the poor /’ it ought to have been “ the overseers of the poor,’’ for the act directs one half of the penalty “ Jo be paid to the overseers of the poor.” No words in the introductory part of the declaration are to be rejected as surplusage, because it is the demand of what is due, and the rendition of judgment must be according to it. In debt for foreign coin, if the demand be that the defendant render the foreign money, no judgment can be pronounced. A doubt may be entertained how far the poor ought to have been named. It has been said they cannot sue. Dickenson v. Clare,

       2 Keb. 280. In Balchin v. Clarke, Barnes 4f 1, the court ruled, the trus-trees of a turnpike act need not be named in a qui tam . , . . 1 action, where halt the penalty was given to them. But the statutes under which the suit was brought, the 26 G. 2. c. 80. 28 G. 2. c. 17, do not order the money to be paid to the trustees, as our law does to the overseers. On the second objection, we submit to the court, whether the object of the legislature was not confined to our foreign commerce, leaving the injuries and wrongs offered our domestic trade to the remedies die law previously afforáed. If so, the allegation was indispensible.
    The clause by which a double inspection is glanced at, does no more than say, how often soever the casks have been inspected, stiH, they shah undergo an ultimate one, at the place 0f exportation. This provision was dictated by the sole view of guarding our foreign trade. Had the defendant been about to export the flour, then indeed, I admit, that the plaintiff might have insisted on inspecting; but, in every other case we deny the right of doing so, undesired. The arguments on the other side would make every baker, nay, every person owning a barrel of flour, liable to the inspection-law, and also to the penalties, if falsely tared, or deficient in weight.

      Hoffman in reply.
    The first objection' is as to form. The cases cited shew it good.' The statute of Anne gives the penalties - imposed, one moiety to the informer, the . other to the poor, and yet a suit by the informer only, may be maintained. Therefore, here we may sue without the overseers. If it was competent for the plaintiff to use his own name alone, then the authority from Andrews is decisive. But as courts of law recognise trusts, and take notice of those beneficially interested, there can be no impropriety in naming the cestui que trusty instead of his trustee." . The ■ conclusion of the- declaration,- 'is to the damage “ of the said Edward,” and this will warrant a judgment'in his favor, on which he will, as to the-moiety not given to him by the statute, be trustee for those inti- • tied. The act makes it the duty of the owner, to have an inspection as to the quality ; of the officer',' ás td tare and weight. The branding therefore, the former,' cannot prevent ascertairiingthe(iatter. Whenever there iá“á “ reason to “ suspect” fraud in either óf thesef the officer has a right to inspect, without waiting for a desire to be made known, or confining the act to> flour destined for exportation. '•

       1 Rev. Laws, 424.

       This case is not law as to the point cited. See 7 Went. Plead. 189,190. 191. A precedent contra by Mr. Tidd.

   Per curiam delivered by

Tompkins, j.

Several points have been made for the consideration of the - court; bnt I shall only notice one of them, which appears to me decisive. The object 'of the statute, was to prohibit the exportation of ño of and meal, without being first inspected, in order to prevent those articles being brought into disrepute in foreign markets. Accordingly, the foiprth section of the act provides, that no wheat flour, rye flour, Indian meal, or buckwheat meal, shall be" shipped for' exporta-,⅛¾ out of this state-, before the same shall have beep submitted to the view and examination, and approved of? and branded by one of the inspectors. The fifth section refers to the fourth, and relates to flour and meal manufac■» turedfor exportation. The subsequent provisions of the act, also relate merely to flour and meal, purchased or ¡manufactured for exportation. The words of the statute therefore, and the object of it, confine the duties of the Inspector, and the penalties to be incurred, to flour and smeal shipped, purchased or manufactured for exportation. In the present case, the inspector was not applied to for the purpose of inspecting the flour of the defendant, but what he did, was in opposition to the express orders of Mr. Coles; neither is it averred, or proved, that the flour in question, was either purchased, manufactured, or shipped for exportation. Upon this ground, I am of opinion, the plaintiff is not entitled to recover, and it is therefore, unnecessary to consider the other objections stated by the defendant.