text:
    James Grant and others, Appellants, And the President, Directors, and Company of the Bank of the United States, Respondents. James Grant, Appellant, And James Bissett, Nathaniel Lawrence, Thomas Morton, the President, Directors, and Company of the Bank of the United States, Richardson Underhill, and Henry Remsen, Respondents.

    Registered morte;ao-es must'be paid t^th”0”t™S f their registry. Jftactin^'does not apply heteeTmort-' gages.
    JAMES BISSETT, being seised in fee, of 4 lots in the • city of New-York, on the 10th of May, 1800, mortgaged to ^’eter Onderdonk in fee, three of them, for Si 125. On the 10th of the same month, this mortgage was duly registered, and shortly after fairly assigned to the President, Directors, and Company of the Bank of the United States, for a full consideration. On the 12th of June, 1800, Bissett mortgaged all the four lots to John Taylor, in consideration of @2500. This • i , consideration was made up in the following manner: @506 cash paid to Bissett; @857 agreed to be laid out on the premises, and @1147, in debts due to Taylor and others, assumed by him on account of the mortgagor. On the 27th of the same month of June, Taylor assigned the bond and mortgage to Alexander M‘Gregor, who refunded to Taylor @476 he had paid to Bissett, and entered into the responsibilities Taylor had assumed, forthe performance of which, M‘Gregor offered to give Bissett his bond. On the day following, the 28th, this mortgage also was duly registered. On the 2d of July following, Bissett mortgaged to the President, Directors, and Company of the Bank of the United States, for @1950, the three lots before mortgaged to Onderdonk, and they, on the same day caused their mortgage to be duly registered. On the third of June, 1801, M‘Gregor assigned to James Grant, the Appellant, the mortgage to Taylor. After these transactions, Bissett becoming a bankrupt, the Bank filed a bill in chancery against him, his assignees, Taylor, M‘Gregor, the appellant, and several others of the mortgage and judgment creditors of Bissett, praying that they might be ordered to come in and redeem both the mortgage to Onderdonk, and that to the Bank, or that the premises might be sold to discharge what was due upon them. To this bill Grant appeared and answered, insisting that as the bona fide holder, by assignment of the mortgage second in date and time of registering, he had a right to be paid out of the mortgaged pr&» mises next after the mortgage to Onderdonk. Grant, as assignee of the mortgage to Taylor, filed also his bill against Bissett, his assignees, the President, Directors, and Company of the Bank of the United States, and other mortgage creditors of Bissett, praying that the lot of ground mortgaged to Taylor, and not included in the mortgage to Onderdonk, might be sold, and the proceeds applied exclusively to the discharge of Taylor’s mortgage ; and as to the other three lots, that they might be sold, and the money arising thereby, be appropriated in the first place to the payment of the mort' gage to Onderdonk, and after satisfying the same, that the surplus should go to make up the deficiency, if any, which might arise in satisfying the mortgage to Taylor, by the sale of the fourth lot. To this latter bill all the defendants, except the President, Directors, and Company of the Bank ef the United States, appeared, answered severally, and virtual-¡y disclaimed or submitted to the judgment of the court. The Bank, however, answering under their common seal,-alleged, that when'they took their mortgage on the 2d of July, 1800, they had no notice of that to Taylor, and that holding the £rst mortgage in fee to Onderdonk, they had a right to insist on being first paid the amount of both securities. They also alleged fraud in Taylor, in procuring his mortgage from Bis-sett. Both causes being at issue, came on by consent together. In that by the Bank of the United States, the complainants did not examine any witnesses. In that by Grant, he examined two witnesses, who were cross-examined by the Bank, one of whom proved personal notice of the mortgage to Taylor, to one of the Directors before the mortgage to the Bank, and both proved the mortgage held by Grant to have been given for a full consideration. The only evidence to impeach, this, was derived from an answer of one ®f the persons made a co-defendant with Grant, against the reading of which he strenuously objected. It was, however, decreed, that the Bank should be first paid out of the proceeds of the sales of the three lots, the amount due on both the mortgages held by them, before any part thereof should be applied to the satisfaction of the mortgage, held by Grant, which it was decreed should not be deemed a valid security for the amount mentioned therein; but that it should be referred to a master, to inquire what part thereof had been actually advanced to, or for the use of Bissett, either by Taylor or M‘Gregor, and that so much only, as the master should find and report thus due, should be allowed and paid to Grant, in satisfaction of his mortgage, out of the proceeds of any of the mortgaged premises. These decrees being appealed from, his Honour the Chancellor now assigned his reasons.
    Mr. President—On this case, it will be necessary to determine, 1. In what order the mortgages in question are to be satisfied ? 2dly. What ought to be the amount of satisfaction, as to the one executed to Taylor? As connected with the first question, the right of tacking has been denied; but our registering act, it appears to me, is not dissimilar in its provisions, and certainly similar in its object, to those referred to in the authorities cited. Both the British and our .act are calculated to afford a test, to determine the priority of •satisfaction, as relating to mortgages on the same subject, leaving all other legal and equitable consequences to attach, as if the registry had not existed. I take it, therefore, the doctrine of tacking has not been altered by our statute, requiring the registry of mortgages. The complainants, in their answer to the bill of the defendant, Grant, expressly deny their knowledge of the existence of the mortgage to Taylor, and his deposition discloses no facts which can affect them, with notice prior to the execution of the mortgage to them; for, though he deposes that he gave the information of the circumstances attending the taking of his mortgage to Robert Lenox, one of the directors, he does not ascertain the time otherwise than by declaring, that “ he thinks it teas “ before the said President, and directors had taken their morU “ gagcP This is too vague and indeterminate, and hence it is not necessary to give an opinioil on the question, whether the notice, if fully proved, was well-given to a Director ? If the complainants had no notice of the existence of Taylor’s mortgage, they are completely within the rules adopted by this court, on the subject of tacking; but it can apply only to the lots mortgaged to them, and the fourth lot must be exclusively appropriated to satisfy the mortgage to Taylor; but it appears that 0857 79 cts- of the sum, for which it purports to have been given, were to be applied to the improvement of the mortgaged premises, and there is no evidence that it has been so applied: and it appears from the answers and depositions of the defendants, that this point, though that was not necessary, as they took their assignments subject to all equities, has been invariably attended to, in the several transmutations of the mortgage. Hence, there is not the least ground for permitting it to be retained by Grant, the assignee. It must, therefore, be referred to a master, to ascertain the amount due on the two mortgages to the complainants and Onderdonlc, and the sum due on the mortgage executed to Taylor; but in making the statement on the latter, the sum of0857 79 cts. with the interest accrued thereon, must be deducted, unless it shall appear to the master, that any part of that sum has been actually applied to finishing the houses erected on the mortgaged premises, in which case proper allowances must be made .for the expenditure. The question of costs, and all other di= rections, to be reserved, until the coming in of the master’s report.
    Riggs for the appellant.
    We come before this court, insisting on the right of James Grant, as holder of a second mortgage, duly registered, to be satisfied in preference to a third mortgage, given and registered subsequent to the second, though such third mortgage is held by the same person who has a first mortgage, registered previous to our second. Against this right, the English doctrine of tacking is relied on. But with them there is no general register act, as with us. Their statutes on this subject are partial laws; and among the variety of decisions reported upon them, there is not one where the contest has been between two registered mortgages. It may not, however, be useless to examine how far, on the principles of the British adjudications, their rules will ■apply to, and support the present decree. It is a maxim with them, that, if a first mortgage be purchased in, to aid a junior incumbrance, such first mortgage must be forfeited. 1 Pow. on Mort. 531. In the present case, the mortgage money was not payable before the end of the year, and the assignment to the Bank was within four months, On this ground, therefore, the law is against the Bank. There is also another. Tó enable a puisne mortgagee to tack, he must have lent his money without notice of the mesne incumbrances. 1 Pow. on Mort. 537. 3 Atk. 238 . 2 Vern. 271 . 2 Fonb. 301. n. (b.) The evidence of notice to the bank is complete. Their denial not being upon oath, but under seal, cannot weigh against the testimony of Taylor, and is in itself an absolute nullity. For as a body corporate, having neither soul nor conscience, they cannot be sworn, and are not liable to be punished for perjury. Against them, therefore, and their denial, the evidence of one witness is sufficient, though, unaccompanied by circumstances, it might not avail against a natural person. Though the notice was not to the president, yet, being to a director, it is good presumptive notice ; and by such, a party is as much affected, as by actual intimation. 2 Fonb. 146 to 155. Besides, as our act is general , the registering alone ought to be considered as notice. It is enough to set a person on inquiry, and that has always been held sufficient to affect with notice. 1 D. & E. 755 . With us, registering is like docketing of judgments, and that is invariably deemed te rnalce a purchaser take subject to the charge. Mr. Powell, hi his treatise , does, we admit, state as his opinion, that the ’doctrine of tacking would be allowed between registered mortgages. It is, however, but his opinion, and that upon the operation of the 2 and 3 Anne, ch. 4, and the 7 Anne, ch. 20. But those statutes have not such words as our act. Our law says , “ In case of several mortgages of the same premises, “ or any part thereof, the mortgage or mortgages which shall “ be first registered, shall have preference in all courts of law “ and equity, according to the times of the registry of such ct mortgages respectively.” If the decree complained of is permitted to stand, this part of the act is repealed. As to the sums actually advanced by Taylor, M‘Gregor, and Grant, if any investigation of them was to take place, it ought to have been by examination of witnesses, and not before the master; besides, it is sworn that they were to the full value, and against this the answer of a co-defendant could not be read; for there is no rule better established, than that the answer of one defendant shall not be read against another. 2 Ves. J. 11 . 2 Atk. 303 . Ibid. 39 .
    Van Vechten for the respondents.
    It is a settled principle, 'that where equitable and legal title's unite, they shall overbalance those which are merely equitable. For the equities being equal, neither the one nor the other has, on the score of conscience, any claim to a preference over the other; there can then exist no kind of reason, for disturbing or taking away the legal rights and estate of the other. The courts have,-therefore, always left the party having both the legal and equitable ■estate, in full possession of his rights. 2 Pow. on Mort. 636 to 644. Wherever legal and equitable estates meet, the union is held to destroy all mesne equities. Stra. 240 . From •these positions, has been derived the doctrine of tacking. The act does not vary the law on this point. It orders, that they shall be paid according to the dates of their registering, that is, where there is only a set of successive incumbrances regularly appearing. But it does not prevent attaching to the first registered mortgage subsequént rights, which enable the puisne mortgagee to protect his estate, by that which he acquires. For as the act is meant to operate only between registered and unregistered mortgages, when all are registered, -they stand as if the act had-never ..passed. The puisne morí* gagee has, by his diligence, acquired a preference. If the "registering is to be notice, then the second mortgagee has been guilty °f a laches, in not purchasing in the first mortgage, to protect himself. Not having done so, we had a right to do ancl t0 cover our equitable, by Onderdonk’s legal estate. The difference between the effect of general and particular staiutes? is imaginary. The only actual one is, that under one, you must search in all cases ; under the other, only in those arising within á specific county. The principles to regulate in each are the same, for the law is in both the same, though the limits within which, it is to be applied are different. The notice relied on, was not given to the proper person ; it ought to have been to the head of the corporation, the president. It is not, however, sufficiently alleged ; it is merely “ as he thinks.” It ought to have been strongly evidenced, and such as to almost impute a fraud. 2 Pow. on Mort. 639. Jolland v. Stainbridge, 3 Ves. J. 478. But, allowing all the force asserted to the provisions of our act, still it can never be contended, .that they were meant, by merely registering, to protect fraud. It is in evidence, from the confessions of one of the defendants, that the full value for which the mortgage was given, has not been paid ; and as Grant, in his answer, states his title to have been derived from Taylor, he refers to what Taylor says respecting that title, and makes his answer evidence for the reasons in the anonymous case, in 1 P. Will. 300
      , and Wyat’s Prac. Reg. 75.
    Hamilton in reply.
    Allowing the doctrines of the other side to be correct, as to the reasons on which' tacking has been introduced, find that the registering a mortgage is notice to the second mortgagee, it must equally be so to the third, and then a third mortgagee. can never , stand on equal equity with a second. This, therefore, subverts all the argument, as to the equal equity on which tacking is said partly to rest. But the decisions in England can never, on this subject, b.e applicable to cases here. The words of our law, take them out of the operation of the English precedents. They proceed on the set■tled maxims of their courts. They are not directed or control-ed by the statute law; for the 2, and 3, and the 7th, of Anne, do not propose the regulation of registered securities. The act of our legislature was framed for the purpose of settling -their^priorities. Its object was to secure lenders of .money» This cannot be effected, if the construction on the other side * prevail* A second mortgagee^ after due search, may repose on the estate being adequate to the payment of his demand, and that of his senior incumbrancer; the very next day a cunning or colluding third person lends a further sum, takes in the first mortgage, and cuts out the second. The principle of tacking, encourages fraud; it supersedes that necessity of searching public offices, which ought always to be when title deeds are not shown to the lender. This not being done, ought to lead to inquiry, the neglect of which is what the Lord Chancellor, in 1 Eq. Ca. 331, calls filthy negligence . The express words of our law, are our reliance. They destroy all that system of artificial reasoning, as to taking in the legal estate, to protect the equitable ; for, by the act, a priority at law is given to a second registered mortgage over a third; nay, it gives also in terminis the superior equity, and this on equitable principles; for, where there is a lav/ ordaining a registry to be made of mortgages, search and inquiry at the office is at least an equitable duty. As to the denial of notice by the bank, under their seal, it is enough to say, the only reason why an answer is evidence, is from being under oath. Whatever is not so, cannot be testimony, except as to records, and cases of confession. That there was not an original full valuable consideration from. Taylor, allowing it to be so, is nothing to Grant; for a transferable security, though, in its origin made on a less consideration than it purports, becomes, in the hands of a bona fide assignee, operative to its full amount. Even fraud, except where positive law creates the security, is, by fair assignment, for full and valuable consideration, purged, so far as it respects the assignee. The inquiry, therefore, into the sums advanced by Taylor and McGregor, is not to be supported. The nature of the considerations cannot be questioned. Money paid, money to be laid out, and assumptions of debts—both law and equity must, and do, allow their validity. On every ground, therefore, we contend the decree must be reversed.

       Mead v. Ld. Orrery.

         Saunders v. Dehew.

       In Collet v. De Golls and Ward, Forrest. 65, it was ruled that the publication in the Gazette of the issuing a '■commission of bankrupt, is hotice to all ‘the world, because such as is prescribed by an act of parliament, in Hvhieh the assent of all is implied.

       Goodtitle v. Morgan.

       Page 641.

       1 Rev. Laws, 481. sec. 2.

       defendant professes not to recollect, but states that another defendant knows the fact, the answer of the defendantthus referred to, may be read against him. 1 P. W. 300.

       Jones v. Turberville.

       Lockwood v. Ewer.

       Hill V. Adams.

       Hagshaw v. Yates.

       See ante page 117, note ’there ‡.

         Cvassa uesfiS'eutia.

   Spencer, J.

The Chancellor has adopted the rule of the court of chancery in England, which is, that where parties have equal equity, and one of them has a legal advantage, not to deprive the one, of the legal preference he has obtained. That this rule is established there, I fully agree j and, unless our statute has created a rule on this subject peculiar to our own jurisprudence, I shall acquiesce in this part of the decL sion. For, I do not think that the registering the mortgage is upon legal principles notice of its existence; though, was the point now for the first time to be decided, I should concur that it ought so to be considered; the contrary, however, is too well established to be drawn in question. Nor do I consider the notice given by Mr. Taylor to Robert Lenox, either actual or constructive notice. It is leit quite uncertain at what period this notice was in fact given; and, if given in time, it does not appear that Mr. Lenox was present, when Bissett became indebted to the Bank, or gave the mortgage, or that Mr. Lenox ever communicated it to the board. They deny such notice by their answer; and, although it is not, nor could it be under oath, yet it is certainly sufficient to repel the vague testimony of Mr. Taylor. This brings me to the consideration of our statute concerning mortgages. It provides, that, w in case of several mortgages of the same pre- “ mises, or any part thereof, the mortgage or mortgages, “ which shall be first registered, shall have preference in all “ courts of law and equity, according to the times of the regis- “ try of such mortgages respectively.” It appears to me, that the statute has abolished, with respect to registered mortgages, the right of tacking a junior to á senior mortgage, and thus excluding an intervening one, They are to have preference in all courts of law and equity, according to the times of their respective registry. To allow a junior mortgage to be paid first, is denying to an elder mortgage the preference the statute has given. The statutes of 2d and 3d Anne, ch. 4th and 7th, Anne, ch. 20th, though affording a preference to registered over unregistered mortgages, do not determine, as our statute does, the preference they are to have, or in what order registered mortgages are to be redeemed or satisfied. Though it was truly observed by the appellants’ counsel, that there are no decisions in England to be met with, denying the principle now advanced. I am therefore of opinion, that in this respect, the decree of his Honour the Chancellor ought to be reversed. The remaining question is, whether the mortgage held by Grant is to be considered a valid security, for the amount therein mentioned, and thereby secured ? It will be proper, first, to consider, what is, and what is not evidence in the cause. In the bill filed by jhe Bank, against Grant and ethers, John Taylor and Alexander M6Gregor are made co-defendants,' and the respondents counsel, considering some parts of their answers as operating in their favour, have dwelt upon the facts disclosed by them. I have no hesitation in saying, that the answer of one co-defendant is evidence neither for, nor against the other. The authorities cited maintain this position. It appears from exhibits and testimony, that the consideration of the mortgage given by Bissett to Taylor, money advanced by Taylor to Bissett, money owing by Bissett, and assumed to be paid by Taylor, and a balance of between 8 and 0900, to be paid in finishing certain houses on lots included in the mortgage. It appears that Taylor, about the 30th of June, assumed debts, and became responsible to Bissett’s creditors, to the amount of about $1000, besides the sum advanced. It further appears, that Alexander McGregor, to whom the mortgage was assigned by Taylor, as a consideration for that assignment, refunded money to Taylor, which he advanced to Bissett, and also, for the purpose of securing a small demand he had against Bissett in his own right, and another, as administrator of one Cunningham, and also, in consideration of his becoming responsible to sundry persons, for claims which they had against Bissett. For the performance of the agreement thus made by M‘Gregor, he executed his bond to Taylor, and he offered to Bissett to guarantee its fulfilment. Though the business was transacted loosely between Bissett and Taylor, it appears to me, there exists no pretence of fraud ; and as to the validity of such consideration, I have as little doubt. Under these circumstances, the mortgage originally given to Taylor, was assigned to Grant. There is nothing tending to show that Grant did not advance the full amount of the consideration, if the answer of M‘Gregor be not evidence, and that it is not, I have before said. I am of opinion, that the decree be reversed. That after applying the proceeds of the one lot, included in the mortgage to Taylor, and not in the others, towards the satisfaction of the mortgage held by Grant, the proceeds of the sale of the three lots, after satisfying the principal and interest due on the mortgage to Gnderdonk, and held by the Bank, be applied to the satisfaction of the principal and interest of the mortgage held by Grant, considering the same as a valid security for the entire sum mentioned therein, and secured thereby.

The other judges and residue of the court concurring, the decree was unanimously reversed. Lewis,- C. J. however, observed, that he thought the mere registering a mortgage . . a . , ° ° 00 was notice to subsequent incumbrances.


source: Caselaw Access Project

author: Per curiam delivered by Thompson, J.

license: Public Domain

text:
    Marshall and William Jenkins, Appellants, And Catherine De Groot, administratrix of Peter De Groot, Respondent.

    if one of three Ípromissory*^ note die sol-two^nt'vbors6 be insolvent, reet payment” 0l,t oiJhe asoúásed.
    THIS was an appeal from Chancery, in which the facts appeared to be these: James Goslin, jun. John Goslin, and Peter De Groot, made their joint promissory note for £133 is- 2d. payable to the appellants four months after date. Peter De Groot died intestate. The appellants prosecuted the surviving- makers of the note to judgment, issued into the county where they resided a ii. fa. which was returned nulla Bona, and they have since become insolvent, but the respondent has sufficient assets from the intestate to satisfy the debt. The bill prayed that the respondent might be compelled to pay the demand, but on a general demurrer the Chancellor was pleased to dismiss the bill with costs, and thus assigned his reasonsj
    Mr. President-—From the authorities cited on the argument, it abundantly appears, that courts of equity are not favourable to the common law doctrine of survivorship in cases of this kind, and that they have shown a disposition to avail themselves of circumstances to avoid its effects. Thus the words of a condition of a joint bond have been resorted to, for the purpose of eluding the operation of this strict rule of law. The application of the money borrowed to the concerns of a joint trade, and the obligor’s drawing the bond himself jointly, have been admitted as circumstances to relax the operation of that rule; but none of the cases go the length of deciding that, divested of circumstances, the obligation of a joint contract is to attach, as well to the representatives of the dead, as to the survivor of the contracting parties. This case presents the naked facts of a joint debt and survivorship -r and, I think, must be determined on the rule which obtains at law, and if so, the bill cannot be sustained. In giving this opinion, I regret that the rule is so well established, as to oblige me to conform to it. The inclination of my mind was to afford relief, if I could discover any principles which would bear me out in it; but, thinking as I do, respecting the legal principles governing this case, I dismissed the bill with costs.
    The respondent not appearing to argue the cause, it was heard ex-parte.
   Per curiam delivered by Thompson, J.

The facts stated in the bill, are admitted by the demurrer to be true. The only question, therefore, presented to the court, is, whether, where three persons make a promissory note, one dies intestate, but solvent, and the two survivors become insolvent, the estate of the deceased can in equity be charged with the payment of the note ? I have not been able to discover any principles of justice on which it can be exonerated. It is a rule applicable to proceedings in courts of law, that where two are jointly bound, and one dies, the survivor must be prosecuted, and an action cannot be maintained against the representative's of the deceased. This, however, is a rule controling the remedy, and not determining the right. Courts of equity daily give relief where the remedy at law is extinguished. The three makers of this note, as to this transaction, are considered in the light of partners, and the consideration received by them was for the mutual benefit of them all 5 and although this consideration, whatever it might be, may survive, unless severed during the life-time of the intestate, yet the survivors are considered, in equity, as the trustees for the representatives of the deceased, for his proportion. Rights claimed by, and injuries arising from, survivorship, are not viewed in a very favourable aspect, either at law or in equity. I have looked into the cases referred to by the appellants’ counsel, which I think fully establish and warrant both the right and practice of courts of equity, giving relief in cases of this description. The survivors are insolvent. The deceased left assets sufficient to pay this and all other just demands against his estate. The appellants are without remedy at law, and I see no reason why equity should not give relief. I am, therefore, of opinion, that the decree of his Honour the Chancellor ought to be reversed.


text:
    FEBRUARY, 1801.
    Herman Le Roy, William Bayard, and Gerritt Boon, Appellants, Against Peter Servis, Peter Little, Samuel Runyions, James Warren, and others, Respondents.
    Where there are several complainants to a bill praying an injune» tion, an affida-, vit by one a? lone, showing probable cause for equitable interposition, is sufficient; and a demur? rer that all have not joiqv ed, is bad, Wlieth r our courts will BR« tcrtain a plea that a contract is illegal, because in contravention of the royal instructions respecting grants of land to patentees ? lilyt A demurrer to a bill because seeking a discovery of that which would subject to the penalties of the act against buying pretended titles, is bad, unless it appear the answer would show a scienter of the seller’s being out of possession, and a subsisting adverse possession. If a plaintiff be properly before the court of chancery for a discovery, he may pray relief, and a demurrer to the whole bill on that account, is bad.

      The appellants filed their bill in chancery, stating, that in 1768, Peter Servis, and twenty-four others, presented to Sir Henry Moore, formerly governor of the province of New-York, a petition, praying him, for their use, to purchase from the Oneida Indians 35,000 acres of land, then in the county of Albany, but now in that of Herkimer, and to grant them letters patent for the same, That for money, or some other valuable consideration (not particularly known to the complainants) paid, delivered, or performed, by Sir William Johnson, formerly of the county of Tryon, deceased, and on consideration that he would pay all the office and other fees, on issuing the letters patent, the petitioners agreed with him, that, on their obtaining a grant for the said 25,000 acres, they would hold the same in trust for him, and duly convey the whole to him in fee. That in the year 1769, letters pa» tent were issued for the above lands, in favour of the petitioners, the office and' other fees whereof Sir William Johnson paid; upon which, the patentees did, for the considerations aforesaid, and in pursuance of their said agreement, by sufficient deeds in the law, grant, release, and convey the said 25,000 acres of land, to the said Sir William Johnson, in fee simple, by virtue of which, the said Sir William Johnson took possession thereof, caused the same to be surveyed, and trees to be marked in the boundary lines thereof. The bill then set "forth a regular chain of title, from Sir William Johnson, for 23,000 acres; and also, that after the death of Sir William, and early in the war between the United States and Great-Britain, that Sir John Johnson, the son, and one of the executors of Sir William, had the custody of the conveyances from the patentees., and to guard against their loss, or for some other reason, buried them in the earth, by means whereof they were either wholly lost, or rendered illegible, and were therefore altogether out of the power of the complainants. That Peter Servís and the other defendants, endeavouring to avail themselves of the loss or destruction of those conveyances, and claiming title to the said lands, had brought actions of ejectment for them, wherefore they prayed a discovery, an injunction to stay proceedings in the several ejectment causes, that the complainants might be quieted in then-possession, and that such other and further relief might be afforded, as was agreeable to equity and good conscience. To the- bill was annexed an affidavit of the appellant, Gerritt Boon, swearing, that, according to his knowledge, information, and belief, the material facts charged were true, and that, according to his information and belief, the deed or deeds from the patentees to Sir William Johnson, was, or were lost or destroyed, as in the bill was set forth. To this some of the defendants demurred, and assigned for reasons, 1st, That the complainants ought to have made affidavit, that they had not in their power or custody the deed or deeds, concerning which they seek a discovery, and for the loss whereof they pray relief. 2d, That the agreement between Sir William Johnson and the patentees, as set forth in the bill, was illegal, and not entitled to the aid of a court of equity. 3d, That the bill charged, that the defendants claimed by conveyances executed by persons out of possession, and that a discovery of that fact would subject the defendants to a penalty. 4th, That the complainants prayed a discovery of the defendants’ title, and to be quieted in possession, before the title of the complainants was established at law. 5th, That the title of the complainants, as set forth in the bill, was merely triable at law, where it might be fully ascertained and established, if it was as stated to be. Lastly, That the bill contained no equity. These, they contended, were good reasons for demurrer. 1st, Because,' where it is intended to obtain any specific relief, upon the loss of a particular deed, and thereby give to chancery a jurisdiction, to which it would not otherwise be entitled, in exclusion of the common law; it becomes necessary that the party complainant should annex a satisfactory affidavit to his bill, to inform the court of the loss he complains of, and the necessity of equitable interference. 2d, That such affidavit ought, in the present case, to have been made in different terms, or by all the complainants. Gerritt Boon may have been informed, and may verily believe, and may hope to be able to prove, as he states in his affidavit, that the petitioners named in the bill of complaint, did respective!)?- convey all their right, title, and interest, to Sir William Johnson, and may also have been informed, and verily believe, that the deeds were destroyed, as alleged ; yet the other plaintiffs may not believe any such matter, and may actually have evidence to the contrary, or possess the deeds about which they were inquiring. 3d, That there was not any necessity for changing the jurisdiction from law to equity '; for the complainants, if the aid of chancery was wanted for discovery only, might have the benefit of it on a bill confined to that object. 4th, That the title of the complainants, if any, was a legal title, and that, if Gerritt Boon were able to prove (as he swears he hopes to do) the conveyances to Sir William Johnson, even a discovery would not be wanted. 5th, That if any one of these reasons is good cause of demurrer, the cause must be regularly out of court.
   The Chancellor having allowed all the demurrers respectively, and ordered the complainants’ bill to be dismissed with costs, as to the demurrants, the cause now came before the court, on an appeal from that decision. After hearing argument, the court resolved, 1st, As to the first point, that the authority of precedent was wanting to give it sanction, no sufficient reasons having been assigned, to induce the court to sustain it; that on the contrary, considerations, resulting from inconvenience in all, and utter impossibility in many cases, afforded just grounds for repelling the exception. 2d, That it is considered, no decree on the merits of the complainants’ case is ever made on the evidence contained in the affidavit annexed to the bill; but that as such affidavit is merely to present probable or colourable grounds, for chancery interference and examination, there could be no hesitation in saying-, that •the affidavit of Gerritt Boon was sufficient in terms for that purpose ; and that the exception taken to it must be disallowed. 3d, On the second cause of demurrer, objecting illegality to the alleged agreement between Sir William Johnson and the original patentees, in contravening the salutary principles upon which the instructions of the royal government, regulating colonial grants, were grounded, it is sufficient to say, it has been justly admitted, that this is highly delicate ground ; and that the principles of this objection, if allowed, must attach to it very controling consequences, upon questions of real property in the state: but, on consideration, this does not appear to be included in that class of cases, which have been affected by the principle resorted to, the general consequences of which, in its operation, if sanctioned by this cause, to the prejudice of bona fide purchasers, probably without notice, is an argument why it ought not to be extended. 4th, The third cause of demurrer urges, that the discovery prayed, would endanger the defendants in law, and subject them to a penalty. On this point, as a scienter,■ or knowledge of the seller’s being out of possession, and a subsisting adverse possession, at the time of the sale, are necessary to constitute an offence against the statute alluded to, the answer to this part of the bill, disclosing the fact prayed, might be so drawn, as not to contain any admission which would endanger the defendant in law. 5th, The remaining objection is, that the complainants blended in their bill relief with a prayer for discovery, when, from aught appearing in the case, a court of law, upon the discovery being obtained, is competent to afford adequate ’redress. As the Chancellor’s retaining jurisdiction on the point of relief in this cause, would involve a consideration of the trial by jury, the question presents an aspect peculiarly important. On this point, though there may be sufficient grounds disclosed to change the jurisdiction, yet, as the complainants were properly before the court upon the point of discovery, the defendants were bound to answer this part of the bill; and the demurrer, therefore, to the whole, was not well taken, and ought to have been over-ruled. The cases on this question are contradictory. The law is not bound down by a series of uniform decisions, in a manner not to be shaken, and so as to preclude the consideration of the reason of the rule. Upon this last ground, the reason of the rule, it will be seen, that a decision in conformity to the above opinion, will, at the same time that it discountenances the doctrine of turning round the suitor upon nice and critical exceptions, operate no prejudice to the defendants upon the merits of the question; because a judgment, over-ruling a demurrer in chancery, is, in its effects, in nature of a respondeas ouster in a court of law. The opinion of the court, therefore, is, that the causes assigned do not sustain the decree in this cause, and judgment of reversal must be entered.


author: Kent, J.

text:
    Andrew Vos and John Boonen Graves, against The United Insurance Company.
    A mere sailing dTritood^to'be blockaded, is ”f neutrality as.t0 ali'ecfc surancí. °fm"
    IN Error from the Supreme Court. The special verdict •on which judgment was rendered, contained the following facts. On the 21st June, 1798, the Defendants, for Vos and Graves, insured eight thousand dollars on the American brig Columbia, from New-York to Amsterdam, at a premium 17 1-2 per cent. At this time neither party knew the Texel was blockaded. It was warranted in the policy that no loss 'should arise to the Defendants, by reason of capture, seizure, or detention, in the port of Amsterdam, the Texel, or the Vlie, and that the cargo was American property. The Plaintiffs for an additional premium of two and a half per cent, obtained liberty from the Defendants, to touch and trade at Hamburg, which was granted, in consequence of the following letters written to the Defendants.
    “ New-York, 25th June, 1798.
    Sir,
    w The cargo of the brig Columbia, Benjamin Weeks, master, being insured at the New-York Insurance Company,
      u at and from hence to Amsterdam, on the 14th instant, and u the accounts daily receiving, rendering motives of pi;ecauu tion extremely necessaiy; we therefore propose to order “ the vessel to touch at Hamburgh for orders, which may be done without delay,, as she is to go north about, provided 44 you will permit it in the policy without any additional premi44 um: And should our friends advise that it would be dan46 gerous to proceed to Amsterdam, in that case the risk 44 should end at Hamburgh.
    44 We are &c. 44 VOS and GRAVES.
    44 To the President of the Unit-1 i ed Insurance Company.” J
    THE SAME TO THE SA3IB,
    Mew-Tork, 2 7th June, Í5f98.

      u Sis,

      'u On being informed that the Texel was blockaded by the 41 English, and a ship from Philadelphia, bound to Amster44 dam, had actually been sent to Yarmouth, we applied to 44 you yesterday to obtain leave for the brig Columbia to 44 touch at Hamburgh for orders. Prom this circumstance 44 we conceive it highly interesting to the office, to grant the 44 permission, without the charge of an additional premium. 44 At any rate, we would rather have the vessel proceed on as 44 the policy now stands, than to augment the premium; for the 44 circumstance of the blockade was zmknozcm to ns, when 41 the insurance Was effected, and it is probable! it may be 44 withdrawn by die time the vessel reaches Amsterdam

      ■ The Plaintiffs had property on board to the amount of the sum insured. They also owned the brig, which, with the cargo, was American property. The brig sailed on the voyage insured, and arrived at Cruxhaven, on her way to.Ham-burgh, in August ÍÍT98. Iti three or four days after, she sailed from Cruxhaven for Amsterdam. On the day she left Cruxhaven, she was captured by a British frigate and carried into Yarmouth. The brig and cargo were libelled in the high Court of Admiralty of England, and were condemned by Sir William-Scott, who pronounced the following sentence. 46 There is pretty clear proof of neutral property in this case, 44 both of the ship and cargo % but the vessel was taken at-44 -tempting to break a blockade. It is necessaiy for met® <e observe, that there is no rule of the law of nations more “ established than this, that the breach of the blockade sub- ££ jects the property so employed, to confiscation. Among all u the contradictory positions that have been advanced on the “ law of nations, this principle has never been disputed ; it is “ to be found in all books of law, and in all treaties; every “ man knows it; the subjects of all states know it, as it is “ universally acknowledged by all governments, who possess “ any degree of civil knowledge. This vessel came from “ America, and, as it appears, with innocent intentions on “ the part of the American owners; for it was not known at “ that time in America, that Amsterdam was in a state of in- “ vestment; and therefore there is no proof immediately af- “ fecting the owners. But a person may be penally affected “ by the misconduct of his agents, as well as by his own acts : “ and if he delegates general powers to others, and they <£ misuse their trust, his remedy must be against them. The “ master was by his instructions to go north about to Crux- “ haven. This precaution is perhaps liable to some unfavour- “ able interpretation: the counsel for the claimant have en- “ deavoured to interpret it to their advantage; but at the ££ best, it can be but a matter of indifference. When he ar- “ rived at Cruxhaven, he was to go immediately to Harm- “ burgh, and to put himself under the direction of Messrs, “ Boue and Company. They therefore were to have the en- “ tire dominion over this ship and cargo. It appears, how- “ ever, they corresponded with persons at Amsterdam, to ££ whom farther confidential instru'ctions had been given by f£ the owners; and these orders are found in a letter from “ Messrs. Vos and Graves, of New-Tork, to Boue and Com- “ pany, informing them, that the Columbia was intended for “ Amsterdam—consigned to the house of Crommelin, to “ whom Boue and Company are directed to send the vessel “ on, “ if the xvinds should continue unsteady, and keep the t£ English cruisers off the Dutch coastif not, they were to £t unload the cargo, and forward it by the interior naviga- “ tion to Amsterdam. Boue and Company accordingly direct t£ the master “ to proceed to Amsterdam, if the winds should “ be such as to keep the English at a distance.” There is t£ also a letter from the master to Boue, from Cruxhaven, in ££ which he says, “ Amsterdam is blockaded.” We have this “ fact then, that when the master sailed from Cruxhaven, the u blockade was perfectly well known both to him and the “ consignees : but their design was, to seize the opportunity “ of entering whilst the winds kept the blockading force at a “ distance. Now, under these circumstances, I have no “ hesitation in saying, that the blockade was broken. The “ blockade was to be considered as legally existing, although “ the winds did occasionally blow off the blockading squad- “ ron. It was an accidental change which must take placé “ in every blockade; but the blockade is not therefore sus- “ pended. The contrary is laid down in all books of autho- “ rity ; and the law considers an attempt to take advantage “ of such an accidental removal, as an attempt to break the “ blockade, and as a mere fraud.” But it has been said, “ that by the American treaty, there must be a previous xvarn- “ ing. Certainly where vessels sail without a knowledge of “ the blockade, a notice is necessary; but if you can affect “ them with the knowledge of that fact, a warning then be- “ comes an idle ceremony, of no use, and therefore not to “ be required. The master, the consignees, and all persons “ intrusted with the management of the vessel, appear to have “ been sufficiently informed of this blockade ; and, therefore, “ they are not in the situation which the treaty supposes. It “ is said also, that the vessel had not arrived; that the of- “ fence was not actually committed, but rested in intention “ only. On this point I am clearly of opinion, that the sail- “ ing with an intention of evading the blockade of the Texet, “ was beginning to execute that intention; and is an overt “ act constituting the offence. From that moment the block- “ ade is fraudulently invaded. I am, therefore, on full con- ■“ viction, of opinion, that a breach of blockade has been “ committed in this case; that the act of the master will af- “ feet the owner to,the extent of the whole of his property “ concerned in the transaction. The ship and cargo belong, “ in this case, to the same individuals, and therefore they “ must be both involved in the sentence of condemnation.” The mate, on his examination as a witness in the cause, deposed—“ That it was generally understood among the Ame- “ ricans at Cruxhaven, at the time the Columbia sailed from “ thence, that Amsterdam was considered as a blockaded “ port, and it was so understood by himself and the Captain 'T< of the Columbia: That the British ship, upon falling in u with the brig, immediately seized her as being bound to a “ blockaded port, and also, on the pretext of her having “ Dutch property on board; That it was generally under- “ stood by the Americans at Cruxhaven at the time the “ lumbia left it, and it was understood by the captain and “ him, that it was the practice of British cruisers to stop “ vessels bound to Amsterdam, and send them back without seizing them, and only to seize in case of a second attempt iC to enter Amsterdam; and that under this idea, the captain “ sailed for Amsterdam.” When it was generally believed in the city of New-York, that Amsterdam was blockaded, to wit, on the 18th of September 1798, the defendants insured the American ship'Patriot, from New-York to Amsterdam,' with liberty to touch at Altona within one mile of Hamburgh, for 17 1-2 per cent, to return 2 1.-2 per cent, if the voyage ended at Altona.
    Upon the facts thus found, the majority of the court gave judgment for the defendants, for the reasons assignéd in the two following opinions, delivered by Mr. Justice Kent and Mr. Justice Radcliff.,
   Kent, J.

On these facts two questions arise: 1. Will a voluntary attempt by the captain to break a blockade be sufficient to destroy the right of recovery on the policy ? 2. If it will, is there the requisite evidence in this case of that attempt? In answer to the first question, I am of opinion that such an attempt takes away from the assured his right to recover; for he can never be allowed to indemnify himself upon an innocent party, from the consequences of his own want of skill, or from his negligence or folly. The act of the master must be referred to his principal, who appoints him.; and whenever a loss happens through the master’s fault, unless that fault amount to barratry, the owner, and not the insurer, must bear it. It is a fault in the master, to occasion a loss of property, from his carelessness or want of competent skill;' and much more is it the case, if he ■wilfully occasion that loss, as by resisting search, breaking a blockade, &c. He is charged with a discreet aud faithful execution of his trust, and it is against his duty to expose the property unnecessarily to risk, either-from natural perils, or from perils arising from the violation of .his neutrality. It is a pointmot to be disputed, that an attempt knowingly to break a blockade, is a violation of neutral duty, and occasions a forfeiture of the property, and it cannot be supposed, unless it be so expressed, that the insurer takes up» on himself such risk. The risk of fault in the master (barraexcepted) is not a risk enumerated in the policy; and it would be very unreasonable, that the insurer should be holden beyond his express undertaking, for the fault or folly of the master, whom the insured selects and controls . In answer to the seconc^ question, I have no doubt in concluding, there is su£° ■•ficient evidence in the cáse of a wilful attempt by the captain ''to break the blockade' of Amsterdam. This evidence results from the condemnation in the British court of admiralty, and ■ for the conclusive effect of that sentence, I refer to my opinion in the' causes of Vandenheuvel v. the United Insurance Company, and Church. There is also sufficient evidence, without resorting to the sentence. When the captain left Cruxhaven,'he sailed with the understanding that Amsterdam was a blockaded port; and he sailed also under the idea, that if he should meet with a British cruiser in his attempt to enter Amsterdam, he would, for the first attempt, be sent back, and not seized. This appears by the testimony' of the mate, and it is sufficient to establish the fact of the blockade as against the plaintiffs (it being the admission of their master) until they re■pel it by direct proof to the contrary. But there is no such contrary testimony in the case. It would seem, indeed, to be implied, from some of the observations of Sir William Scott, which are thrown into the case, that winds had occasionally blown off or kept at a-distance, the blockading squadron, but at what precise time, or to what precise distance, does not ap«= pear. We do not know, except by necessary deduction from the testimony of the mate, what was the actual state of the blockade, or how far the British cruisers were at the time in a situation to preserve it. Nor do we know the situation the "vessel was in, or her proximity to Amsterdam, when she was captured. The mate informs us only, that the master understood when he sailed from Cmxhaven, that Amsterdam was blockaded; that he sailed with an intent to attempt to enter it, and with the understanding that for his first attempt he would only be sent back, and that he was captured the day he sailed. Alow near he had approached the coast of the Vlie and Texel, A/e do'uot know. He might have reached the coast, for it is Vithin the reach of a day’s sail. Every reasonable conclusion that the admissions of their mate will warrant, is, however, to be drawn against the plaintiffs, so long as they furnish no "other proof to explain or repel those admissions. My opinion accordingly is, that the existence of the blockade, wilful attempt of the master to break it, his capture while executing that attempt, and at no great distance from, if not in, the neighbourhood of the blockading port, are all necessarily to be inferred from the case, and that judgment ought, therefore, to be given for the defendants.

Radcliff, J. ’ On the 21st June, 1798, the date of the policy, neither party knew of the investment of Amsterdam, and this excludes the idea, that, by any special agreement or understanding, the insurance could have been meant to extend to any peril, for breach of the particular blockade in question, if any existed. 1st. It is a settled rule, that the insured, in ■order to comply with his warranty, -must not only maintain the property to be neutral, but so conduct himself towards the •belligerent parties, as not to forfeit his neutrality: he must pursue the conduct, and preserve the character of a neutral. This being the import of the warranty7, and the condemnation being founded on a breach of neutrality, it operates to preclude the plaintiffs, on the principles adopted with regard to the effectjof foreign sentences, in the case of Vandenheuvel v. -the United Insurance Company. -2d. In the present ease, thé ■plaintiffs, before the vessel sailed from New-Yorlc, to wit, on the 27th June, in consideration of law, had notice of the blockade. This appears by their letter to the defendants of that date. Although the information was not then certain, it was sufficient to excite serious apprehensions, and to put them on their guard, which, in judgment of law, js deemed competent notice . The captain, however, before he sailed from Cruxhaven, had actual notice of the blockade; and there can be no doubt but the plaintiffs are liable for his acts. He sail- ' ed with the professed intent to evade it, if an opportunity ■ should offer, but under an idea that, by the treaty of 1794, he was entitled to notice to desist, and to be sent back on the first attempt. The provision in the treaty on the subject, it is obvious, cannot apply to a case where the party already possesses the requisite information. This is the rule in all cases where -a. party is to be affected by notice. But it is objected, that the captain was not in the act of breaking the blockade ; that it existed merely in intention, and he was therefore not liable to seizure. If this idea be correct, then no such capture can be lawful, until the line of blockade be actually invaded. The resolution may be formed and acted upon, and no progress in the execution of it can be stopped or prevented till the breach . be made. A construction so forced and limited, appears to me inconsistent with an effectual exercise of the right. It may be difficult to define its precise extent, but it is more reasonable to adopt the rule, that the besiegers are entitled to take preventive measures ; and that, where the resolution to break a blockade is formed, and begun to be executed, within a reasonable distance to render it practicable, the offence is incurred, and the party liable to seizure. Such was the case in the present instance. From the testimony of the mate, as well as from the sentence, it appears, that an actual blockade was understood at the time to exist; as a fact, it seems not to have been questioned. But the particular situation of the blockading force does not appear, nor do I think it material. Although the party may have intended to avail himself of an accidental interruption, occasioned by winds and tempests, this intent will not excuse him, for such interruption cannot be considered as destroying .the existence of the blockade. At least, if he attempt to enter, under such circumstances, it is at his peril, and he subjects himself to the hazard of seizure and confiscation. I think the reasoning of Sir William Scott, whose opinion is contained in the sentence annexed to the case, is satisfactory, and that the sentence on the merits was right, and of course that the plaintiffs have forfeited their neutrality, and ought not to recover on the policy, admitting the sentence open to investigation. Neither is he entitled to recover the premium, because the risk had actually commenced, and the warranty was forfeited by a subsequent breach of neutrality.

Against this judgment, on behalf of the plaintiffs in error, Brockholst Livingston argued that it was erroneous, because the defendants assumed every risk attached to an attempt to enter a blockaded port; because the condemnation of the high court of admiralty of England is manifestly unjust.— The defendants understood the Columbia was going to a port ■supposed to be in a state of blockade, and therefore insured the plaintiffs against a seizure and condemnation on that, as well as on any other account. This appears from the policy, from the additional premium, and from the correspondence. The policy is to Amsterdam. This was effected without suspicion of a blockade. The risk, therefore, as to the future state of that city, fell upon the assurers. If news of the blockade had been received the next day, the plaintiffs were not bound to break up the voyage. The insurance being at and from New-York, the underwriters could not be compelled to refund any part of the large premium which was" paid. The plaintiffs, thus circumstanced, were not obliged to unload their vessel, or be at the expense of a new insurance to another place; without saying a word, they might have gone on, and if taken, even in an attempt to enter, the defendants must have paid. Thus a merchant who, in peace, warrants his property neutral, does not insure against future events, or engage the goods shall so continue the whole voyage. If war break out the next day, he is still covered . The insurers, in the words of Lord Mansfield, “ take upon themselves all future “ events and risks, from men of war, enemies, detention of “ princes, &c. &c.” An insurance to a blockaded port is not within the description of unlawful contracts. The laws of the United States do not prohibit such commerce. If publicly known that an American vessel was going to a port in that state, no measures would be used to stop her, nor would a seizure or forfeiture in this country follow. The law of nations permits the same thing, but the vessel may'be seized as prize, by the surrounding squadron, if taken in an attempt to enter. By this is intended, that the law of nations attaches no illegality to the bare inception of such a voyage, unaccompanied by a subsequent attempt to enter. If it be true, that after the report of a blockade reached New-York, the plaintiffs' might have proceeded without saying any thing to the company, their case is greatly fortified. The increased premium which was exacted of them, shows a blockaded port was contemplated. The assured, with good faith, and to avoid a greater risk to the other party, than may at first have been designed, immediately announce to them the intelligence of a probable blockade—and ask permission to direct the Columbia to touch at Hamburgh. This became necessary to prevent a deviation. Here was an opportunity afforded to the underwriters of offering to cancel the policy, or of consenting to the vessel’s going to Hamburgh, which was in the way, and voyages to which, appear by the verdict to have been effected at exactly the same premium.—One would think they would gladly embrace a proposal so reason- and be relieved from the risk of the Columbia’s going to Amsterdam. No : They are perfectly satisfied with the contract as it stands, and will not consent to any alteration, without an additional premium of two and a half per cent, which, not to incur the consequences of a deviation, the plaintiffs allow. This was emphatically declaring on the part of the underwriters, that they preferred the risk to Amsterdam, blockaded or not, to the Columbia’s going to Hamburgh, which' they would only permit for a farther consideration. The policy was varied accordingly, and the insurance then continued to Amsterdam, with permission to touch at Ham-burgh. Is it not strange, that altho’ the defendants were now fully apprized that Amsterdam was supposed to be blockaded, they leave the policy in that respect as it first stood, and make no objection to that part of the voyage ? It may be answered, that they contemplated a termination of the voyage at Hamburgh, should its continuance to Amsterdam be attended with danger. It is unfortunate that the interpretation of a policy is not, as of other instruments, to be collected from its own expressions. Recurrence is constantly had to letters, conversations, representations by brokers, and other matters; so that a contract for insurance is frequently converted into a heterogeneous compound of parol and written stipulations, the one in direct variance with the other—and the policy, which should be our guide, and is by itself perfectly intelligible, is involved in impenetrable obscurity by the addition of much extrinsic matter. But if the plaintiffs’ letters, altho’ not a line of them be inserted in the policy7, are a part of the contract, they leave it optional with the plaintiffs to proceed to Amsterdam, in case their friends should think it not dangerous. This was leaving the right of the assured, to proceed, entirely at the discretion of a third party, which, if abused or improvidently exercised, could not affect them. It is not found, and therefore is not to be presumed, that their friends did think such a continuance of the voyage dangerous. The probability is the other way. The friends of the assured, no doubt, thought there was no danger, or they would have ordered the vessel to Hamburgh and handsome commission. If they really thought it and still sent the vessel on, the underwriters are liable, for they reposed themselves on their discretion. If we consult the policy, nothing is said about the opinion of the plaintiffs’ friends, altho’ such stipulation might have been inserted in one line. The option is here left to the insured without any reserve or qualification. They may end the voyage, if they please, at Hamburgh. In that case they are to be refunded two and a half per cent. If the brig proceeds, the company retain the whole premium. Here then were two and a half per cent, given, for the voyage between Hamburgh and Amsterdam, and when we are taken in performing that part of it, we are refused payment. The defendants should have inserted in the policy an express stipulation, that the voyage should end at Hamburgh, if a blockade existed. Having omitted so to do, they are too late to say they did not mean to assume every risk produced by such a state of things. It is important to show, that Messieurs Vos and Graves were entitled to proceed to Amsterdam, blockaded or not, because then the sentence, of which thus far they are the victims, just or unjust, cannot affect them. This step was illegal in them, as it respected the defendants, or they cannot suffer by the condemnation. If their contract has not been violated, the underwriters must bear the consequences of the confiscation. We proposed, however, to examine the decree, which we conceive unjust,5and therefore not binding as between the present parties. The property was condemned for “ a breach of blockade,” and reasons are assigned at some length. It is with reluctance I can bring myself to animadvert on a judgment proceeding from a source so pure and intelligent. No one holds in higher estimation the talents and integrity of the eminent character who delivered it, or more admires the bold, eloquent, and yet perspicuous language in which his opinions are uniformly given. In the cases decided by Sir William Scott, the mind finds relief from the fatigue and disgust which it contracts by a review of the iniquitous conduct of other Admiralties, which present one uninterrupted scene of rapine and oppression. But without pretending to derogate from his character or abilities, I cannot think the condemnation of the Columbia authorized by the Law of Nations, or the Treaty received a dangerous, between the two countries. It will not be denied that an attempt to enter a blockaded port is prohibited to neutrals. Such interdiction is inevitable. Blockades would become idle ccremonies, were all the world permitted, as at other times, to the harbour, and succour the besieged. The investing foe therefore is permitted to interrupt such entrance, and to confiscate property taken in the attempt. But this being a right, in restriction of those of neutrals, who are to suffer as little as possible by the hostilities of others, ought not to be enforced, unless where a blockade actually and completely exists. If the squadron be accidentally absent, or blown off, neutrals are restored to their rights, and exempt from the penalty, which in the other case they incur. Who can say the fleet will ever return, or the blockade be renewed ? If a neutral can take advantage of this temporary suspension of the blockade, whether produced by necessity or choice, he should not suffer for the attempt. If the blockade be raised, whether by the appearance of a more powerful foe, or by the act of God, it no longer continues, and the port becomes open to all the world. If superior force confers a right to impose on neutrals this restraint, they in turn, without any imputation of fraud, are restored to the privilege of a free trade, the moment the ships are removed, and have a right, if they can, to take advantage of such removal. The Columbia, it will be remembered, was captured by a vessel not belonging to the blockading division. Where the squadron was at this time, whether blown off or not, does not appear; at any rate, it will be allowed, that Sir William Scott’s interpretation of this right, as it respects neutrals, is very rigorous. But, without combating this construction, we say, the Columbia ought not to have been forfeited. To justify a confiscation for breach of blockade, there should be—notice of its existence—an attempt to enter—and, under the British treaty, a turning away, and a second attempt to go in. Sir William Scott admits the necessity of a notice, and a warning not to enter.—Rob: Rep: 124. What then shall amount to notice ? Will a mere report justify a master, who has signed ■ bills of lading for one port, in going to another ? Suppose his information incorrect, and a loss happen, will it not be a deviation ? Would not the owners and shippers in that case lose their insurance, and he be responsible to both ? The obstinacy of a Danish master, in the case of the Henrick and Maria, mentioned in the first volume of Robinson’s reports, evinces what was his sense of duty in a similar emergence. Being warned by an English ship not to go to a Dutch port, he answered, that “ he must proceed according to his bilk “ lading, that he could not answer to his owners to go to any “ place but Holland.” In our case no such warning is pretended. It is admitted by the Judge, that the Columbia left America “ with innocent intentions on the part of the owners; “ for, says he, it was not known at that time in America, “ that Amsterdam was in a state of investment, and there- “ fore there is no proof immediately affecting the owners.” After this concession, we contend that nothing short of being turned away, could justify the captain in not proceeding to Amsterdam. A contrary rule would lead to great embarrassment, and put it in the master’s power to break up a voyage on light rumours, or very imperfect accounts of a blockade. If aught, short of actual turning away, be sufficient, it should be settled with precision, what species of notice or information, shall justify a captain in going to some other port ? Whether such notice must proceed from one of the blockading ships, or may come from any other quarter ? Whether such an interruption will justify an abandonment to the underwriters ? And who is to sustain the loss, the merchant or assurer, in case none or a bad market offers at the port into which the vessel is compelled to go? To avoid these difficulties, it is settled that nothing short of at attempt to enter justifies a seizure. “ If Í lay siege to a place, or only “ form the blockade, says Vattel, I have a right to hinder a any one from entering, and to treat as an enemy whoever “ attempts to enter the place, or carry any thing to the be- “ sieged without my leave.” Vattel, Book III. chap. VIII. Sect. 117. A mere intention, or sailing with such view, is not sufficient—an intention to commit an offence is not punishable. Sir William Scott incautiously considers, “ the sailing “ with an intention of evading a blockade, an overt-act, con- “ stituting the offence.” It would be quite as correct to term a preparation of poison, with an intent to kill, an overt-act murder. As in the latter case, remorse or fear may arrest the career of the' assassin; so in the other, if the blockade found to exist, when the vessel approaches, the master may change his course without infringing on the rights of the enemy. It is important that Sir William Scott admits the of-fence here, consisted only in intention. An attempt to enter, is not pretended. This also appears from the verdict. The seizure was made on the very day of the Columbia’s departure from Cruxhaven. The distance thence to Amsterdam does not appear. If it be once granted that a vessel, the moment of weighing anchor, with an intention of going to a blockaded port, may be seized, as was done here, where are we to stop ? If it be rumoured in New-York, that Calcutta, Batavia, or the Isle of France, be' in a state of blockade, shall no vessel in the United States laden for either of those ports, setisail until its termination be formally announced? What injury is done to the powers at war, if a hundred of our vessels sail with an intention of going thither, and yet turn away, if the coast be not free ? The fleet are stationed there to prevent vessels from entering. If none attempt to pass, the object of the blockade is accomplished. The Columbia’s intention to go up the Texel would not injure the British. If they Were at its mouth, they would obstruct her course. If not there, they had no cause to complain. The captain certainly had no design to persist, if a blockade existed. Take his intentions collectively, instead of forming the overt-act which has been mentioned, they bespeak a perfectly innocent conduct on his part. If the fleet had disappeared, from whatever cause, before his arrival, with great deference, I should not think it very criminal in captain Weeks to have gone to Amsterdam. The law of nations did not require him to cruise .off the Texel, to ascertain whether the blockade would be resumed. But the master knew of the blockade when he left Cruxhaven. True; and “ he and all the Americans there, “ understood it to be the practice of British cruisers to stop “ vessels bound thither, and send them back, and only to “ seize in case of a second attempt to enter, and under this “ idea it was, he sailed for Amsterdam.” Nothing blameworthy can be inferred from this conduct. As .it regarded the underwriters, he had a right to go to Amsterdam, altho’ blockaded ; such being the true understanding of the parties, as is confirmed by the several insurances which were effected in New-York, after it was known the investment of that place was formed. From this may be collected the sense of our merchants on a point which has been decided with so much severity against them. Their understanding is, that sailing with an intent to go to a blockaded place, is no cause of forfeiture. As it respected his owners, it was the masters duty to be better informed than he was at Cruxhaven, of the situation the Texel. The reports there might be ill-founded. As the voyage did not begin there, he was right in going on. As it concerned the British, no wrong would be done to them. The squadron, if there, could easily send him away. If not, their rights could not be impaired. By the British Treaty, captain Weeks was authorized to act as he did. He should have been turned away, and not seized until he made a second attempt. This was his conception of the Treaty, and it was accurate. Altho’ the obligation of such warning be confined to vessels, whose masters knew nothing of the blockade at the time of sailing, yet as the nature of this knowledge or notice is undefined, it is the safer construction to say, that no report or any information short of a formal notification to foreign ministers, which usually takes place, shall be deemed sufficient. But, rejecting this interpretation, it is not alleged that the owners knew of the blockade when the Columbia sailed from New-York. The contrary is admitted by Sir William Scott. This then being the inception of the voyage, brings her case within the letter of the Treaty, so that nothing short of a warning, and a second attempt to enter, should have exposed her to confiscation. I forbear to make any remarks on the conclusiveness of this sentence, as between the parties to this suit. As to its direct effect on the vessel and goods, it is and will remain so. Were the Columbia and her cargo now lying in the harbour of New-York, the former owners could not touch them. The purchasers under the decree would be protected. This is going far enough, and all that is intended by paying respect to foreign judgments. But in relation to the assured, and assurers, who were no parties to the litigation in the court of Admiralty, and who submitted, if at all, ex necessitate, to its jurisdiction, this court will be compelled, in order to do justice between them, to examine the grounds of their sentence. The object of the inquiry will be, not to reverse it, to which this tribunal is incompetent, nor to disturb any rights acquired under it, which would be improper, but to ascertain how far the causes assigned were just, and if so, how the condemnation is to affeet the present question. If captain Weeks had a right to do what he did, then this sentence is unjust, and instead of a defence, it forms another item or link in our proofs of loss. if the sentence consist with the law of nations, still we say the underwriters are liable, because they insured us against every risk attending a voyage to a blockaded port. When the reasons of a sentence appear, a foreign court will ever review them. This is a rule so intelligible and fraught with so much plain and common sense, as to be liable to no misapprehension. It may be obscured, as often happens, but cannot be illustrated, by an anxiety to amplify and elucidate. It is not like the doctrine of a silent foreign sentence, being conclusive between parties to a policy in cases of warranty, which now also awaits its doom in this honourable court. Not a hundred volumes—not all the lawyers in the Universe, can ever succeed in rendering such a position intelligible to men of common understanding. It requires a sublimation of genius, to comprehend one syllable of what is written or said on the subject. If Sir William Scott, in delivering this decree, had withheld his reasons, every one would have been compelled to conclude, as in the case of Goix and Low, that the Columbia was condemned as enemy’s property. The judge having been more communicative than usual, we are relieved from the trouble of guessing, and the necessity of doing injustice, for in this case also, there was a warranty that the property was American, which is admitted by the decree, or the assured were inevitably gone. This court, we presume, will have no difficulty in examining the reasons assigned for this condemnation, and making up a judgment of their own on them. Suppose the Columbia had been condemned, altho’ an unarmed merchantman, “ as an article contraband of war,” as was done with the Calliope by one of the West-India tribe; would this court hesitate to pronounce such a sentence a wicked departure from the law of nations, or to give the owner the full benefit of his insurance ? In a word, the plaintiffs contend that they had a right to go to Amsterdam, blockaded or not.. That if they had no such right, the master was not guilty of a breach of blockade. That he did only what was permitted by the lav/ of nations, and the British treaty, and that therefore in every point of view they are entitled to a reversal of the judgment of the supreme court.

Troup, contra, insisted the judgment ought to be affirmed. 1. Because, by the universal received law of nations, the entry of a blockaded port, or even the attempt to enter it, a knowledge of its being- blockaded, is a just ground for confiscating the cargo, as well as the vessel, where they both belong to the same owner. 2. Because, it cannot be presumed to have been the intent of the parties, that the insurance in question should be made to Amsterdam, as a blockaded portj for if such had been their intent, it must have been accompanied at least with an implied licence from the defendants in error, to the plaintiffs in error, to attempt to break the blockade, at the risk of the defendants in error, if a state of things should be found to favour the attempt; and it will be contended, that under such circumstances, the insurance was void in its commencement, as being contrary to law. 3. Because, supposing- the insurance was not intended to be made to Amsterdam, as a blockaded port, the attempt by the master of the Columbia to break the blockade, in pursuance of discretionary orders given to him for the purpose, by the plaintiffs in error, who were the owners of the vessel, is not one of those acts of the master, for which the defendants in error are liable in damages to the plaintiffs in error. 4. Because, it clearly results from the facts stated in the record in this cause, that Amsterdam was a blockaded port; and that the master, with full notice of its being so, attempted to break the blockade. And it will be argued in behalf of the defendants in error, that such attempt of the master has discharged them from all responsibility to the plaintiffs in error.

Per curiam. The question in this cause is, whether the sailing of the brig Columbia from Cruxhaven with a destination for Amsterdam, and an understanding that it was blockaded, is a breach of the blockade, and legal cause of capture and condemnation ? The question may be qualified, perhaps, with the addition of an intention to enter the Texel, in the event only of the blockading squadron being blown off the coast, so as to leave the port in fact open for entrance. There is nothing in the verdict, or the assumption of facts by Sir William Scott, as the grounds of his determination, to warrant the conclusion of an attempt to break the blockade, any farther than the same is supported by proof of a sailing from, Cruxhaven for Amsterdam. Upon fundamental principles, on which our municipal code of criminal law is established, intention, with some very peculiar exceptions, is not made the subject of judicial animadversion. That the moral law, which arraigns intention, should be adopted in the law of nations, with a greater latitude than in our municipal system, is a subject of some surprise, especially when the application is for the benefit of belligerents, and to the prejudice of neutrals. In intention, there is nothing certain and permanent; it is controlled by every reflection; is changed, dropped, and renewed, by the occurrences of every hour; by the constant vicissitudes to which the agent is subject; the enterprise, on a nearer view, appals ; the locus penitentiae is embraced.—If there is an inception of the undertaking, by advances towards the theatre of action, (as the sailing from Cruxhaven in this instance) how wide a space yet intervenes !—to the dominion of how many various causes is the intention subject, before the act could be completed! the information of every hour may change the destination; the receipt of counter-instructions from the owner may arrest further progress ; the perils of the sea overwhelm ; the information received at Cruxhaven that induced the sailing, may be contradicted ; and lastly, before the vessel may arrive on the line of investment, the blockade may be, by instructions from the admiralty, withdrawn, or raised. The rule that the sailing with a destination for a blockaded port, is a breach of blockade, as urged upon the court, is undefinable in relation to distance between the port of departure and that of destination, and will produce great uncertainty and vexation. Nothing is to be found in the verdict or facts stated, or assumed in the sentence of the admiralty, from which to infer the progress of the brig from Cruxhaven to the Texel; Sir William Scott meets her at the threshold, at the port of departure, and pronounces the sailing with an intention of evading the blockade, to constitute the offence: these are his words. It is fairly presumable, that the ground thus taken by the judge, corresponded with the proof, was as broad as the evidence would justify. The record in the cause presents no fact to warrant a contrary conclusion. No inference is to be made from the plaintiffs’ communication by letter of the 3 Tíh June, that the defendants consented to an attempt to enter a blockaded port, as that letter closes with the observation, that the blockade might probably be withdrawn before the arrival of the vessel. Therefore quite the contrary is rather to be supposed. It is unnecessary to give an opinion on the case of an actual attempt to enter a port during the interruption of the blockade, by reason of the blockading squadron being blown off; as, in this case, no such attempt was made, nor is the fleet found to have been so blown off. It is therefore the opinion of the court, that there is no authority of precedent binding on it, to warrant the rule adopted by the admiralty sentence in this cause; that such rule is opposed to essential principles, uncertain in its application, and highly vexatious to neutrals; that the principle of the late treaty between England and Russia is more propitious to the interests of commerce, and sufficiently favourable to the rights of belligerents, and merits high respect from all neutral powers. Therefore the judgment below must be reverá» ed.

       Millar, 136 to 144, 179 to 188. 2 Valin. 77. 79. 161. 650.

       1 Atk. 490. 2 Fonb. 155.

       See Furtado v. Rogers, 3 Bos. & Pull. contra.


author: Per curiam.

text:
    Philip Urbin Duguet, against Frederick Rhinelander and others.
    If a belligerent emigrate to a neutral country flagrante bello, and be there natural* ized, a warranty of neutrality is supported by such naturalization, nor need he disclose to the underwriter the period of his emigration»
    IN error from the Supreme Court. The plaintiff (who was also plaintiff below) declared on a policy of insurance, in which both vessel and cargo were warranted “ American property The plaintiff was a Frenchman by birth, who emigrated to this country flagrante bello, and was naturalized in l'/96. His ship, and that part of her lading which belonged to him, were condemned by the Judge of the vice-admiralty at Nassau, in New-Providence, because the plaintiff “ was, at the “ commencement of hostilities, and still is, a citizen or sub- “ ject of the French Republic.” A special verdict having been found, it was referred to the court to determine whether the plaintiff was entitled to recover as for a total loss, or only for a return of premium, or whether the verdict should be entered for the defendants. Judgment having been given for a return of premium, the case was brought up, on the same points which were made below. 1st, Whether the warranty of neutrality was complied with ? 2d, Whether there was not an undue concealment in not disclosing the period of naturalization, that the underwriters might have calculated against the risk of confiscation, for the reason assigned by the sentence promulged ?
   Per curiam.

The first question arising for the consideration of the court, in this cause, is, whether the plaintiff' has verified his warranty of American property in the ' goods insuredP The determination of this point involves the important question, whether the Plaintiff is to be deemed, for the purposes of commerce, an American Citizen. On this question, while the claims of a state upon its citizens, when surrounded and pressed by its enemies, are recognized; while the course to which duty prompts is plain, and readily perceived ; yet so different are the circumstances of different states, so various their policy, that the right of citizens to emigrate during war, must, so far as respects the parent state, depend on the particular ordinances of each individual community. What might not be inconsistent with good policy, in a state possessed of an overflowing population, and a scanty subsistence, would be quite different from that of a state with a thin population, requiring all her hands for defence, and with sufficient bread for all her citizens. Was the condition of all nations alike in this respect; was the same reason and necessity for prohibiting emigration during war common to all, the rule contended for by the defendants, would have been long since settled, as a fundamentaf'principle of the Law of Nations, and expressed in language too unequivocal to admit of a doubt, at this period. If a state is assailed by external enemies, and requires for defence the united efforts of all its citizens, of all that it has given birth to, a prohibition against emigration, as we have witnessed in France by the ordinances of 1704 and 1744, will attain all that is necessary in this respect, to the safety and defence of the state. If such prohibition is not interposed, the door is open to emigration. But is an emigration, which is lawful in relation to the parent state, equally so in reference to the enemy of such state ? As a general rule, it is so. At the same time, should the citizens of a belligerent power, in concert with the state, or for the purpose of multiplying the warlike resources, or aiding the enterprises of the state, emigrate to, and take a stand" in a neutral country, in • order to mask mercantile projects under a neutral flag, there can be no hesitation in pronouncing such emigration fraudulent, • and that an establishment, and residence, for such unwarrantable purposes, cannot acquire to the emigrant a neutral domicil, he still would continue a member of his native family, and as such must participate in, and be affected by the fortunes of the parent state. When such a case is brought before the court, such a determination will be had, as will preserve to the belligerent the full exercise of his rights over the property of its enemy. But because the right of emigration may be abused in time of war, it by no means follows, that such right does not exist; and though it may be difficult to detect and punish such abuses, the argument from thence, against the right, cannot prevail. As far as appears from the record in this cause, the emigration of the plaintiff proceeded from a common principle of action that prevails more or less in all periods, and all countries; for the subsistence of himself and his family, he removed to and acquired a domicil in this state. This domicil, upon general principles, confers for the purposes of commerce, the right of an American citizen. Native Englishmen, domiciled in America, by a decision of Westminster-Hall, participate in the rights of American citizens, in relation to trade between America and the East-Indies. It will be unnecessary to consider whether the situation of the parent state was not such, at the period of the plaintiff’s emigration, as to have no claims upon its citizens; as rent with factions and violence, and yielding no protection. Upon the point of undue concealment, raised in the cause; after the foregoing opinion, it will be necessary only to add, that if the faith of contracts should be deemed to have required of the plaintiff a disclosure of his condition, as affording a pretext for condemnation, undue concealment is a fraud, odious in law, and as such, not being found by the verdict, .is not to be presumed. For the foregoing reason the judgment of the supreme court ought to be corrected, and the judgment here be -as for a total loss.


text:
    James Johnston and Robert Weir, against Daniel Ludlow.
    The trade oí iie„; carried*" ™ the with the ene™es of,1IS mo~ thercountry, is protected “anty against" illicit trade, Jbreachof6 that warranty, mustlie’for an actual illicit, contraband ®ei" damnation, under pretext or such a trade is no timradebf not in fact one or the other. A sentence in si foreign court of admiralty is not even primá facie evidence of any fact, if there appear in it enough to rebut such a presumption.

      ERROR, from a judgment of the supreme court, in an ac•tion on a policy of insurance on goods, from New-York to La Vera Cruz. The instrument contained the following clause: “ That the property be warranted, by the assured, “ free from any charge, damage, or loss, which may arise in .. J r . ° ’ . ’ , , , , “ consequence oi a seizure or detention ot tne goods hereby "tl insured, for, or on account of'any illicit or prohibited trade, “ or any trade in articles contraband of war.” From the special verdict it appeared that the plaintiffs, who were the same in both courts, had shipped, besides the property insured, six blocks of tin and seventy-eight boxes of tin plates. That the latter were condemned as contraband, and the goods insured, as belonging to the same owners, British subjects, trading with an enemy to their mother country; but that the defendant knew, at the time of subscribing the policy, the plaintiffs were •subjects of the crown of Great-Britain, and that the tin was J 1 e on board. Judgment having been pronounced in favour of the defendant, the case was brought before this court, and the following questions made: 1st, Was the trade, in relation to the characters of the plaintiffs, illicit ? 2d, Was the article of tin in blocks and plates contraband of war ? 3d, Did the warranty of the assured extend in judgment of law to a loss by seizure or detention, merely because illicit or prohibited trade, or trade in articles contraband of war, was alleged, when in fact the trade was not' such ?
   Per curiam.

On the first point the domicil of the plaintiffs being established here without any fraudulent motive, but for fair purposes of commerce, this court ought not to sanction the right of Great-Britian to seize, and confiscate their effects, as has been done.in this instance. The case cited from Bosanquet and Puller’s Reports, (page 430), which arose under the article in our late treaty with England, regulating our East-India trade, is not inapposite. In that case, the English court conceded to a native subject, domiciled in America, the right of an American citizen, in relation to commerce with the Indies. On the second point, that there may be circumstances and occasions, in which tin, in blocks and plates, may become contraband, is not to be controverted; but while Judge Kelsall professes to detail not only the causes for condemnation, but those on which he did not ground himself, he does not disclose a case which would warrant the conclusion, upon the article in question, of contraband of war. He rests himself upon the bare shipment of the article; this cannot be subscribed to, nor will the allowed effect of the admiralty sentence, as prima facie evidence, avail the defendant here, as the presumption of facts, to warrant a condemnation, is repelled, by a detail of the precise grounds on which the sentence was pronounced. On the last point raised by the underwriters, that the warranty protects him against any loss :by seizure or detention, for, or on account of any illicit trade or contraband of voar, nothing in this provision is relevant to the case before the court. The clause literally extends only to partial losses, occasioned by a seizure or temporary detention, unfollowed by a condemnation ; and if extended farther, it cannot have been the intention of the parties to the policy, to -throw upon the assured a loss where there could be no fault in him; when no illicit trade or contraband existed in fact, merely because a pretext of that kind is setup to cloak the condemnation. The expression, “for and on account off is not equi» valent or convertible into the words under pretence of, but may well be understood to meaxifor the cause of; implying the actual existence of either illicit trade or contraband, as producing such loss or damage. No other construction ought to be admitted, unless the language of the contract is plain and unequivocal, necessarily inducing a contrary interpretation. The facts in the cause do not, as the law is now settled in Great-Britian, bear out the conclusion of the vice-admiralty court; nor can any thing in the warranty of the assured protect the underwriter. The judgment of the court below must be reversed.

CASE ARGUED AND DETERMINED IN THE Court for tbe Cria! of 3impeaci>metW AND CORRECTION OF ERRORS, IN THE STATE OF NEW-YORK •

       Maryat v. Wilson.


text:
    John R. Livingston, against William Rogers.
    yie contents of a tomej^may be adduced, if tlie peison 0 whom it was given prove it lost 'AVe been

      IN an action on a stock contract, the plaintiff, to establish a tender of the stock, called on Gulian Mc Evers, who swore that he, under the authority of a letter of attorney, made to him by the plaintiff, with whose hand-writing he was acquainted, and attested by John Wilkes, a notary public, did, after due notice to the defendant, attend to transfer the ' ' stock, but the defendant never appeared. That after this, the letter of attorney was, by the witness, deposited among some papers, and had been since lost. John Wilkes deposed, that he never subscribed any letter of attorney as a witness, without seeing it first executed. The plaintiff then . , . , r , , , . ottered to go into parol evidence or the contents of the letter attorney, but this being over-ruled by the judge who tried the cause, a bill of exceptions was tendered, on which the case came before the court. The defendant, in support of the judgment below, relied on the following points: 1st, That the letter of attorney, being a material link in the evidence, ought to have been shown to the court and jury, that they might determine on its certainty; and where there is a subscribing witness to an instrument, it must be established by him, if within the jurisdiction of the court, such being the agreement of the parties. '2d, That the production of deeds can be dispensed with, only where they appear to be in possession of the opposite party, who has been duly served with a notice for their production; or where they have been lost or destroyed, not by the laches of the party to be benefited by them, but by fire or other accidents. 3d, That in the whole of this case, the conduct of the agent or attorney of the plaintiff, must be considered as that of the plaintiff himself, who cannot allege his own, or his agent’s carelessness, as a reason for the non-production of papers he was bound to-preserve.
   Per curiam.

The" question ‘upon the bill of exceptions interposed in this cause, is, xvhether it be competent for the plaintiff to give petrol evidence of the contents of the letter of attorney to Me Evers, under the circumstances defeated in the bill of exceptions, or must the instrument itself be produced? The ancient rule of the common law was highly rigid in this respect. It dispensed with the production of instruments in a few select cases, and then only for peculiar and specific causes. But experience under that rule, has, in the progressive improvements of English jurisprudence, resulted in a relaxation of the law on the subject. The non-production of instruments is nowr excused, for reasons more general, and less specific, upon grounds more broad and liberal than were formerly admitted. In 3 D. & E. (151) a declaration on a deed was sustained, and the proferí dispensed -with, upon the geneiral allegation of a loss by time and accident. In Beekford v. Jackson (Esp. Rep. 337) the Plaintiff counted on a deed lost or mislaid; upon which issue was taken, and the same recognized, as warranted in law, by Lord Kenyon, who presided at the trial. Other cases are to be found in the English reports, of similar import, sanctioning the same principle. Upon the authority of those cases, and the reason of the thing, we are of opinion, that parol evidence of the contents of the letter of attorney to Mr. Me Evers, ought to have been received, and that therefore error has intervened in this respect. Upon the admission of such testimony, should the trial disclose evidence, or reasonable grounds of suspicion, of a suppression of the instrument, of mala tides in the plaintiff, or should the evidence of its existence and legal efficacy not be clear and satisfactory, it will become the duty of the court to direct and charge the jury for the defendant; a venire facias de novo, must therefore be awarded.

       Read v.Brookman.