author: *Per Curiam.

text:
    Jenks and others against Hallet and Bowne.
    A vessel driven by distress into a French port, where a part of her cargo is taken by the officers of the government, and she prevented from taking away her original lading, may, without incurring the penalties of the acts forbidding all intercourse with the dependencies of France, purchase and load with the produce of the country. A passport granted by any particular government to protect against its own cruisers, is not a sailing under the protection of the flag of that government, so as to stamp a national character on the vessel. On a special verdict the court cannot intend any thing which is not found.
    This was an action on a policy of insurance. A special verdict was, by consent, found, subject to the opinion of the court, as to the plaintiff’s right to recover, upon the facts contained. From these it appeared, that on the 27th of April, 1799, the defendants, for a premium of 25 per cent., insured for the plaintiffs against all rislcs, 1,000 dollars upon coffee, valued at 20 cents per pound, on board the sloop Nancy, from Hispaniola to St. Thomas.
    That in the margin of the policy was inserted, “warranted the property of the plaintiffs, all Americans,” but that the words all Americans, were added after the policy was subscribed. That the sloop Nancy was built at Ehode Island, and belonged to citizens of the United States, resident in Ehode Island, as well when she left that state as at the time of her capture, and, being chartered by the plaintiffs, sailed from Newport, in Ehode Island, on the 12th of December, 1798, on her first voyage to the Havannah; that in the course of that voyage she was compelled, being in distress, to put into Cape Frangois, in the island of Hispaniola, a country in the possession of France, where she arrived on the 5th of January, 1799; that the captain and supercargo of the sloop were part owners of the cargo, and are two of the "plaintiffs in this suit; that having so put into [*61] Cape Frangois, the cargo was landed to repair the vessel; that the public officers acting under the French government there, took nearly all the provisions from on board the sloop, but the captain and supercargo were permitted to sell, and did sell, the remainder, to, different persons there; that, for the provisions taken, the captain and supercargo were to be paid in thirty days, which payment was not made; that with the proceeds of the remaining parts of the cargo they purchased the whole of the cargo which was on board at the time of the capture; that the officers forbade the master and supercargo from taking on board the cargo landed from the vessel, or from conveying from the island any specie, in consequence whereof, they were compelled to take the produce of the country in payment ; that the sloop, with 30,000 weight of coffee on board, 25,000 weight of which was intended to be insured by the present policy, sailed from Cape Frangois, on the 23d of February, in the year last aforesaid, on the voyage mentioned in the policy of insurance, having on board the usual documents of an American vessel; that the sloop, in the course of her said voyage, was captured by a British frigate, and carried into the island of Tortola, and vessel and cargo libelled, as well for being the property of the enemies of Great Britain, as for being the property of American citizens trading contrary to the laws of the United States; that, at the time of the capture of the sloop, the following paper was found on board:
    “Liberty, Safe Conduct, Equality. At the Cape, 11th Thermidor, sixth year of the French Republic, one and indivisible. The general of the division and private agent of the Executive Directory at St. Domingo, requests the. officers of the French navy and privateers of the republic, to let pass freely, the American vessel called the master property of Mr. E. Born Jenks, merchant, at Providence, state of Ehode Island, in the United States, arrived from the said place to the Cape Frangois for trade and business. The citizen French [*62] consul, in the place where the said ^vessel shall bo fitted out, is invited to fill with her name, and the captain’s, the blank left on these presents; in attestation of which he will please to set his hand hereupon.
    (Signed) “ J. Heelouville,
    (Signed) “Gauthier,
    “ The General Secretary of the Agency.”
    That the above paper was received on board the sloop at Cape Frangois, and was on board when she left that place; that the property insured by the policy aforesaid was claimed by Zebedee Hunt, and was condemned by a sentence of the said court of vice-admiralty, in the following words: “that the said sloop Haney, and cargo on board, claimed by the said Zebedee Hunt, are enemies’ property, and as such, or otherwise, liable to confiscation, and, therefore, condemned as good and- lawful prize to the captors.” That the plaintiffs are Americans, and were owners of the property insured, and that the same was duly abandoned to the underwriters.

      Hamilton and Pendleton, for the defendants.
    The plaintiffs are not entitled to recover. First, because the warranty is not true. Secondly, because the voyage insured was illegal.

      On the first point. The sentence states that it is enemy’s property: and even if not, the privilege of neutrality was forfeited, by the part owner’s accepting a passport from another country, and sailing under the protection of that flag. In the case of the Vigilantia, 1 Rob. Ad. Rep. 13, 14, 15, Sir William Scott expressly lays it down, that a vessel, sailing with the pass of a foreign country, shall be deemed of that country whose pass she carries. It cannot be contended that the paper alluded to was a clearance. That, according to 1 Valin, 282, contains “the name of the master, and of the vessel, its tonnage and cargo, the port of departure and destination.” Here blanks are left, and the paper bears date before the arrival of the vessel, showing it was made out for her, on a preconcerted plan of trade and business.
    On the second point. It is only necessary to look at the dates of the act of Congress and the transactions. The first act was passed in June, 1796, to take effect on the first of July following; the second, on the 9th of February, 1799, to be in force on the 3d of March following: both these acts require a bond to be given not to enter French ports for trade and ^traffic, nor to trade there though [*63] driven in by stress of weather. The Haney sailed the 12th of December, 1798; put into the Cape, January, 1799: sailed on the 23d of February following, and on the 23d of April next the policy was effected: under the acts of Congress, therefore, the selling her cargo was illegal, as even in cases of putting into French ports from distress, trafile is forbidden.

      Hoffman and Bogart, for the plaintiffs.
    The jury have expressly found the warranty to be true, and the inconclusiveness of foreign sentences is settled in the cases of Vandenheuvel v. Church,

       and The Same against The United Insurance Company of New York. This, therefore, is a complete answer to the first objection. But, as the sentence is ambiguous, and assigns as a cause of condemnation that which the law of nations does not warrant, it is doubtful whether, in England, it would not be examinable. 1 Marsh, on Ins. 291,294 Bernardi v. Moteux, Doug. 575. The paper talked of as a pass was merely a clearance and passport to secure against seizure by French vessels: nor can the citation from Valin be supposed to be the obligatory form on all people, according to the positive rule of the law of nations. The second objection is of as little force as the first. The policy was subscribed by the defendants with a full knowledge of the facts and law. Though against a statute prohibiting certain voyages such a circumstance could not prevail, it was expected the un: derwriters would not have made it a ground of defence. The distress, however, and force, which are stated in the special verdict, do away every obstacle to a recovery from the pretended illegality of the voyage. The case of Richardson and others, in the District Court of Mew York, affirmed upon an appeal to the Circuit Court of the United States, was stronger than the present, and is on this head a full exposition of the act of Congress. There a vessel bound to a neutral country was captured, carried into a French port, together with her cargo, condemned and sold; the owner voluntarily purchased at that place another vessel, loaded her with sugar, and came to Mew York; she was seized and libelled under this very act; the judge of the District Court acquitted both vessel and cargo as not within the spirit of the statute. This decision, from its confirmation vn the Circuit Court, is now the law of the union.

        а) Johnson and Weir v. Ludlow, 1 Caines’ Cas. in Err. 29; Vandenheuvel v. United Ins. Co., 2 Caines’ Cas. in Err. 217;

       1 lex Mer. Am. 337, 341.

       See Vase v. Ball, 1 Lex Mer. Am. 333.

   *Per Curiam.

It will be observed that this is the case of a special verdict, and the court can intend nothing but what is found by the jury. This remark is an answer to much of the reasoning on both si lies, and narrows the grounds of discussion to the following points:

1st. Whether the vessel and cargo, although literally American, according to the implied warranty in the policy had forfeited the privilege of that character, by accepting the protection of a passport from one of the belligerent nations ?

2d. Whether the purchase of the cargo in a French port was within the prohibition of the act of Congress of the 13th June, 1798, and an illegal trade?

As to the first, it appears that the Haney sailed with the usual documents of an American vessel, and was in every respect entitled to be considered as such, unless the French passport which she received at St: Domingo would deprive her of that privilege. The general rule by which to determine the national character of a vessel is the domicil of the owner. In the present case the owners resided in the state of Ehode Island. We admit the exception to this rule where the vessel navigates under the flag or assumed character of a country to which she does not belong; but the instance before us, we apprehend, is not the case of a vessel sailing under that protection, or, as it is termed by Sir William Scott, under the pass of a different nation; her papers were all American, except the one in question; she was in fact American, if we believe the verdict, and she professed no other than the American character. The additional paper which she received on board at the Cape, according to its import, was not inconsistent with that character ; on the contrary, she was therein stated to be the property of Mr. Jenks, merchant at Providence, state of Ehode Island; that paper, accompanied with the other documents she possessed, could not be evidence of her being French property, or employed as a French vessel; she had come from a French port, and was destined to a Dutch Island, both of which were lawful; and it was natural, and. we believe is usual, in such cases, for vessels to seek for protection, and guard themselves against the cruisers of the power whose ports they have visited. This paper, unsupported by other evidence of belligerent property or employment, could be received in that light only. Con-[*65] nected with the fact that all ^intercourse had been prohibited by our government at that period with the French nation, we think it afforded a reasonable ground of suspicion that she was employed in the service of the French, and perhaps the risk was thereby enhanced; but, so far as that fact was material, the prohibition was known to the underwriters before they subscribed the policy, and they must have estimated the increased danger, if any, that resulted from it. Of itself, we think, it would afford an additional security against one of the belligerent parties, (the French,) and could not alone be a cause of capture, or sufficient to authorize a detention by any other belligerent. In practice, we believe it is customary for vessels to endeavor to protect themselves, by papers of this description from the public agents of every nation from which they can be obtained, and they have been considered as affording security, instead of endangering their neutrality.

In determining the second question it is again neces sary to recur to the facts found by the verdict. From them it appears that the vessel was compelled to put into the Cape in distress; that when there the cargo was landed for the purpose of repairing her; that nearly all the provisions were taken by the French government, which prohibited relading any part of the cargo, and permitted to barter what was left for the produce of the island only, and to dispose of it in no other way; if this be true, they had no alternative but to comply with the terms prescribed, or sacrifice the whole of their property. Their acts were acts of necessity and coercion, and the law of congress which suspended the commercial intercourse with France and her dependencies, cannot reasonably be construed to apply to a case of this description; its object was to prevent an inten tional or voluntary traffic, and not to compel a sacrifice of property, or inflict a penalty in cases of distress or necessity That would be a construction excessively severe, and contrary to the spirit and intent of the act. On this point we understand a similar decision has been made in the district court of this state, which, on appeal, was affirmed by Judge Paterson in the Circuit Court of the United States. We are, therefore, of opinion, on both points, that the plaintiffs are entitled to recover,

Judgment for the plaintiffs.

        Seward v. Jackson, 8 Cow. 406; Birckhead v. Brown, 5 Hill, 634

         Sue Blagge v. New York Ins. Co., post, 564.

       Therefore, a certificate of origin from a French consul, is no breach of the warranty of American property. Le Roy v. United Ins. Co., 7 Johns. Rep. 343.

         Judgment affirmed in the court of errors, (1 Caines’ Cas. in Error, 47,) end in the supreme court of the United States, (3 Cranch, 219.)


source: Caselaw Access Project

author:
      Per Curiam.

      Per Curiam.

license: Public Domain

text:
    *M’Gregor against Loveland. The Same against Arnet. The Same against The Same
    If, after suit brought, the sura be reduced by a partial payment below 260 dollars, and a cognovit be taken for such residue, supreme court costs cannot be claimed.
    Practice as to costs on a consolidation rule.
    This was a question of practice submitted to the decision of the court on the following statement:
    The above suits were brought on notes exceeding two hundred and fifty dollars each; afterwards a sum of money was paid, and security given by Loveland, the endorser, by which the amount was reduced below 250 dollars: cognovits were then' given for the residue, by each defendant. It was understood at the time, by the defendant’s attorney, that the judgments should carry supreme court costs. Quccre. May not the clerk tax them accordingly ?
   Per Curiam.

No; the plaintiff should have taken his cognovit, and entered his judgment for a sum above 250 dollars, to entitle to supreme court costs; they cannot other wise be allowed.

The following question was also submitted:

Several suits are consolidiated by rule, on a policy of assurance ; if the leading suit should recover more than 250 dollars, and the other suits less, will the party be entitled, by virtue of the consolidation rule, to supreme court cost" on the suits that are under 250 dollars ?

Per Curiam.

We think not.

       On judgments by confession on warrants of attorney, and the condition of the obligation with interest on the sum actually due shall not exceed 50 dollars, no more costs shall be recovered against the defendant than 10 dollars. On such judgments in the common pleas, when no more than 25 dollars due, no costs from the defendant; when more, only 10 dollars. Laws of N. Y., vol. 5, p. 116, sess. 30, c. 107. The judgment is said to be the criterion (in other cases) to determine, according to the rule of which court the costs are to Ige taxed. Van Antwerp v. Ingersoll, 2 Caines’ Rep. 107. That judgment is not, however, the amount recovered, but the damages assessed, without even the six cents, or any other costs. Van Horne v. Petrie, ib. 213; Seaman v. Baillie, ibid, 214. But this rule does not apply in actions against attorneys, who are always liable to pay supreme court costs, (if the recovery be above 25 dollars,) though he must bring himself within tho act “to reduce the laws concerning costs into one statute,” (1 Rev. Laws, 528,) to obtain them. Bailey's case, 1 Johns. Cas. 32. Walsh and others v. Sackrider, 7 Johns. Rep. 537. Aliter, when the recovery is under 25 dollars Moulton v. Hubbard, 6 Johns. Rep. 332.

      ] See New York Code of Proceedure, Title X.


author: Per Curiam.

text:
    J. and S. Watson against Depeyster & Co.
    If a suit be compromised between the parties, without the knowledge of the attorneys, and nothing said about costs,- each party pays his own.
    This and three other suits, were commenced against the above defendants and several others, on a policy of insurance on the brig Defiance, and a consolidation rule' signed and entered. About a year afterwards, the defendants in. the above suit compromised with the plaintiffs, who can-celled the policy as to them; of this the defendants’ attorney had no information, nor was there any rule to discontinue, or other rule entered, and the other suits proceeded.
    The principal cause went on to trial, and the [*67] jury found a verdict for the defendants, which w'as acquiesced in. The defendants’ attorney thereupon entered rules for judgment as in case of nonsuit in all the causes, pursuant to the consolidation rule, and the costs were taxed, and judgment rolls ready to be signed. It was now submitted to the court, on these facts, to decide whether the rules for judgment, and the judgment for costs as in case of nonsuit, were regular or not; or whether they ought to be set aside, as at the time of compromise nothing was said about the costs.

      Hoffman, as amicus curiae,

    mentioned, that in Wallace v. Lochwell it had been decided, if a party compromise without knowledge of his attorney, each pays his own costs.
   Per Curiam.

In every suit each party is supposed to advance as his suit proceeds. If each has paid costs, and then they compromise, the suit is settled; for the transaction imports no further proceeding is to be had; nothing more than a simple discontinuance to enter on record, and nothing_ being said about costs, each must pay his own. The parties ought to have informed their attorneys there was a compromise.

Costs denied.

       Where a suit is settled by the parties, without mentioning costs, each, bears his own. Johnston v. Brannan, 5 Johns. Rep. 268. A settlement with the plaintiff of even the costs is valid, if made without notice from his attorney, and bona fide. The People v. Hardenbergh, 8 Johns. Rep. 335.


text:
    Hudson against Henry.
    Notice of motion for judgment as in case of nonsuit, sent by the mail, is not good notice; though such a service might save a default.
    Henry moved for judgment of nonsuit against the plaintiff for not proceeding to trial. Notice of the motion had been sent to thé adverse attorney, by the mail; this was relied on as good service.
   Per Curiam.

The service is insufficient., A letter may miscarry, or the attorney may be absent when the mail arrives, or not immediately inquire for letters, though an affidavit of a plea sent by the mail might save a fault. Let the defendant take nothing by his motion.

Motion refused.

       For the modes of service, see Caines’ Prac. 21, 45. In addition to which, it has been ruled, that service on the- attorney, or his clerk, while in the office, though out of office hours, is good. Cooper v. Carr, 8 Johns. Rep. 360. So on an agent in Utica. Chapman v. Raymond, ibid. 360. But observe, on error from the common pleas, and no attorney employed, service must be on the defendant to join in error. Clement v. Crossman, ibid. 281.

       S. P. Ludlow v. Heycraft, 2 Caines’ Rep. 386. And the plea will be presumed to have been received, unless the contrary be shown. Stafford v. Cole & Spalding, 1 Johns. Rep. 413. But if a trial has been lost, though merits be sworn to, the default will not be set aside without the judgment standing as security. Fenton v. Garlick, 7 Johns. Rep. 287.

         See Cole and another ads. Stafford, Cole. Cas. 107. Beebe ads. Paddock, ibid. 135.

       See New York Code of Procedure, secs. 408, 409, 410, 411, 412.


author: Livingston, J.,

text:
    Manhattan Company against Smith, in custody.
    To an application for a supersedeas for not having been charged on execution, within three months after judgment, it is a good answer, that the defendant has since been charged.
    This was an application for a supersedeas, for not being charged in execution in due time, according to the act for the relief of debtors, with respect to the imprisonment of their persons.
    The counsel for the plaintiff relied on Brantingham's Case, Cole. Cas. 42.
    The *Court, without hearing any argument for [*68] t he defendant, said, the authority cited was conclusive.

        Minturn and Champlin v. Phelps, 3 Johns. Rep. 446.

   Livingston, J.,

acquiesced, because it had been so decided, but confessed he did not believe the legislature intended the construction put upon the act by the court should ever be given to it. The rigor of the practice was, in, his opinion, enough to condemn it, for he thought the neglect in the plaintiff ought to accrue to the advantage of the prisoner.

Supersedeas refused.


author:
      Per Curiam.
     Livingston, J.

text:
    Steele et Ux. at the suit of Tennent.
    Steele, and Fuller, his bail, at the suit of Tennent, assignee of the Sheriff of Washington.
    Attorney on being retained for a defendant, should examine state of proceedings; though it is but fair practise for plaintiff’s attorney to disclose them; for want of doing so in a suit against bail, default and subsequent proceedings in original suit set aside on terms.
    The original suit was trespass guare clausum fregit, in which Steele and his wife had been held to bail under the statute.

    On the return of the writ the plaintiff obtained an assignment of the bail bond, upon which he issued process, filed his declaration on the first of October, 1802, and entered a default the eleventh of November; on the 17th the partner of the plaintiff’s attorney received, when in his office, notice of the retainer of an attorney on behalf of the defendants in the bail bond suit, but no information was then given of any default having been entered. In January following final judgment was signed.
    On the 8th of March, 1803, the attorney for the defendants in the bail bond suit; was served with a notice of executing a writ of inquiry in the original suit; a declaration also in the same suit was then delivered, which the plaintiff’s attorney swore was merely to apprize the defendant of the nature of the demand; but the attorney of the defendant swore it was served absolutely, not on any condition, and that he did not know of the entry of the default in the bail bond suit, or that any declaration had been filed; that acting under that impression he did not attend the execution of the writ of inquiry, or apply to the court, last term.
    On these facts the defendant now moved that the default and interlocutory judgment in the original action, and all the proceedings in the bail bond suit, be set aside, and the defendants in the original cause let in to plead

        а) 31st March, 1801, c. 102, s. 3.

       Under s. 16 of c. 90, of 31st March, 1801,

   Per Curiam.

The court are of opinion the defendant’s attorney was in default. He ought to have seen that the proceedings '"in the suit on the bail bond [“69] were regular. He should have called after the default and tendered costs. We do not say that the not disclosing the entry of the default in the suit against the bail amounts to a surprise, but it would have been rather more candid to have mentioned that circumstance. Let the judgment on the bail bond stand as security, and the costs on that remain also. The default and subsequent proceedings in the original suit to be set aside on payment of the costs of entering the judgment, under the statute, and executing the writ of inquiry. The defendant to plead instanter to the declaration filed, take short notice of trial, and pay the costs of this application.

Livingston, J.

I think the costs on the bail bond ought to be paid.

Motion as to original suit. setting aside default ana proceedings on

Granted,


text:
    Lowry against Lawrence.
    The suing out the writ is the commencement of the suit, and eayse of action must be antecedent; if'it appear otherwise on the face of the pleadings it is fatal on special demurrer.
    On demurrer. The memorandum was:
    “ Be it remembered, that heretofore, to wit, on the third Tuesday of July, in July term, in the year of our Lord one thousand eight hundred and one, &c., came William Lowry, and brought into the said court, then there, his certain bill,” &c.
    The declaration was on a bill of exchange made in 1797’, presented for acceptance on the first of October, 1801, and refused, of which notice was given to the defendant, who, on the 11th of October, promised.
    To this the defendant demurred, and showed for cause, that, although the said declaration is entitled of the term of July, in the year of our Lord one thousand eight hundred and one, yet the said several promises and undertakings in the said declaration mentioned, are therein stated to have been made on the eleventh day of October, in the year last aforesaid, which is subsequent to the time of the exhibiting the declaration of the said William 'against the said Andrew, and for that it appears by the said decía ration that the pretended causes of action therein specified had not, nor had either Of them, accrued to the said William at the time of the exhibiting his said bill in manner aforesaid.
    Troup,
    for the defendant, insisted that, by the [*70] practice of this court, the suing out the writ was *the commencement of the action; and if so, the declaration showed, on the face of it, no cause of action when the suit was commenced.
    Ogden, for the plaintiff.
    It is contended on the part of the defendant that nothing appears on this record to warrant a judgment for the plaintiff.
    By the course of the court the filing of the bill is the' commencement of the action in a legal sense.

    The latitat is considered only as process.
    The action is not deemed to be commenced until the bill is filed, though the real time of suing out the latitat is allowed to be shown, where it becomes material; as to prevent the running of the statute of limitations, &c. If such a necessity existed in this case, the actual time of suing out the first process might have been shown by plea. But where it does not exist the fiction of law will be preserved, and especially so when it is in furtherance of justice. On this occasion, the true question, therefore, is, when, in a legal or technical sense, was this action commenced? This can only be ascertained by showing the time of filing the bill. The time of filing the bill may be examined into to show the time of commencing the action. It ought to have been shown by pleading in this case. Hot being shown, the court are at liberty to presume that it was after the cause of action accrued. The caption of the declaration is matter of fiction, and not conclusive upon either party. If it be conclusive, all actions by bill of privilege; actions against attorneys of the court; actions against absent or absconding debtors, giving security to appear to any declaration which may be filed by the petitioning creditor, would be defeated in all cases in which the cause of action accrued, during the vacation in which the declaration is filed. Because, in all these cases the declaration is entitled of the preceding term, and must necessarily be stated in the memorandum to have been brought ii ito court of that term. This doctrine involves no hardship ypon the defendant; because, if in the first instance process be issued before the cause of action accrued, a judge will discharge on common bail. So, if the bill be filed before • cause of action accrued, the actual time of filing it may be shown and pleaded in abatement or in bar. In this case, it do^s not necessarily follow that the cause of action did not accrue before the commencement *of the [*71] action, and the time of that commencement not being shown, the court are at liberty, and ought, to presume it to have accrued afterwards.
    In addition to this general reasoning on this subject, it may be observed that, in this instance, the real cause of action is stated to have accrued in 1797 ; being the date of the bill of exchange and long prior to the issuing of process. It is the assumption, founded on that undertaking, which is stated to have been made in October, .1801; and the time of the promise being wholly immaterial, the court will, in this circumstance, see an additional motive for adopting the principle contended for by the plaintiff.

         Johnson et al. v. Smith, 2 Burr. 950. See Lord Mansfield’s opinion 961. Foster v. Bonner, Cowper, 464.

   Per Curiam.

This case comes before the court on demurrer. It was an action of assumpsit, and the declaration captioned of July term, 1801. The time laid in the declaration, at which the cause of action arose, is on the 11th day of October, 1801. To this there is a special demurrer, alleging for cause, that the action appears from the decía ration to have been commenced before cause of action arose. It is, .we take it, well settled that if the plaintiff at the commencement of his suit had no cause of action, a subsequent right would not maintain his action. And it has been settled in this court, in the case of Carpenter v. Butterfield, that as to every material purpose, the issuing the writ was the commencement of the suit; so that a note purchased by the defendant after that time, could not be set off against the plaintiff’s demand.

The declaration must be captioned of the term when the writ is returned served. This point is settled in the case of Smith v. Muller, and it is there also determined that the plaintiff cannot recover any demand after the term when, the writ is returnable, though before the declaration is 'actually filed. Justice Buller there says, according to the ancient practice the declaration was actually delivered the same term the writ was returned, and it was only in ease of the plaintiff that the time of actual delivery was enlarged, but still it must be considered as delivered nunc pro tune.

Upon the principles of these authorities, therefore, it must appear from -the face of the declaration in this cause, and the court must necessarily intend the facts, that the writ was returned in July term, 1801, and of course the action, both in fact, and technically speaking, commenced previous to that *time. But the plaintiff alleges [*72] his cause of action to have arisen on the 11th of October thereafter. We think, therefore, it appears upon the face of the record that the action was commenced before the right of action accrued. The time of actually filing the declaration cannot, as contended by the plaintiff’s counsel, be considered the commencement of the suit: if, therefore, the defendant, by plea, had put the fact in issue, it would have been an immaterial fact; all the material facts appear by the plaintiff’s own showing. In the case of Ward v. Honeywood, the judgment was reversed on writ of error, on the ground that it appeared on the face of the record, that there was no cause of action when the suit was commenced. If this would be error after judgment, advantage may certainly be taken of it by demurrer.

We are, therefore, of opinion, that judgment ought to be for the defendant.

Livingston, J.

In England it is settled, that the filing of a bill or declaration is to be regarded for every essential purpose as the conimencement of a suit. Cowp. 454. But in Carpenter and Butterfield, decided by this court, a different rule was adopted. The issuing of a writ was there considered as the beginning of an action, so much so that the defendant was not permitted to set off against the plainiff’s demand, a note which he had obtained for valuable consideration between the sealing of the process and the arrest. This rule, to operate fairly, must be mutual; if an action begins by issuing a writ so as to deprive the defendant of a set-off in the case mentioned, neither ought the plaintiffs to recover a demand not then due. My judgment, therefore, in favor of the defendant is not founded on British authorities, but entirely on a former da sion of aux own.,

Demurre vllowed.

        а) S. P. Bird and others v. Caritat, 1 Johns. Rep. 342, and not cured by a verdict Cheetham v. Lewis, 3 Johns. Rep. 42.

       See Crygier v. Long, Cole. Cas. 103, that if defendant put in bail, and plead in chiefj he cannot, after verdict, take advantage of the writ’s being sued out before cause of action arose. If the arrest be before debt due, application ought to be to a judge, or the court, without putting in bail

         3 D. & E. 624.

       Doug. 61, that ease was on. marshalsea process, where the proceedings are by plaint; and in an inferior court the plaint is as an original. Savage v. Knight, Leon 302. See the observations of Ashhurst, J., in Doug. 62.

         The principle of this decision is extended to justices’ courts, in r ' v*?t the summons is held to be the commencement of the suit. Boyce v. Ma 3 Caines’ Rep. 133.

       See the New York Code of Procedure, sec. 99.


text:
    M’Neill’s Case.
    The court will not pronounce judgment on » prisoner convicted a Oyer anj Terminer of a conspiracy, if the record of his conviction le ot before them, but will admit to bail.
    The prisoner had, together with two other person i, been convicted of a conspiracy at the last Oyer and Terminer for the city and county of New York, but 'had not appeared on his recognizance in time to receive sentence: he after-wards came in, and was now brought up, on his own petition, to have judgment pronounced; but the xvccord [*73] of -'the conviction not being made up and brought into court, the bench said they had nothing before them on which to' proceed; and, therefore, adm tted him to bail.


text:
    Anonymous.
    Service of notice;.
   The notice of motion in this cause was served on a person in the house of the attorney, and where he kept his office: but held not sufficient, as it ought to have been on a clerk in the office.,

      а) Swartwout ads. Gelston, Cole. Cas. 77. “ The service must be on soma person in the office, and belonging there; if nobody is there, it must be upon some one in the house where the attorney resides or the office is kept: and if nobody is there, it may be left in the office.”

       See the New York Code of Procedure, sec. 409.


text:
    Moyle against Gillingham.
    Service of notices on agents for non-enumerated motions.
   Notice may be served, on an agent in town, on the first day of term, to show cause on the next day for non-enumerated motions; but then, it must be accompanied with a sufficient excuse for not having been for the first day. If the excuse be received, the adverse party will have till next term to send into the country to his principal, for counter affidavits.

       The rule is, that a notice for any day in term is good, if shown why it was not for the first; but the motion will be heard only on a non-enumerated day. 2 Caines' Rep. 259. Pintard v. Ross, 2 Johns. Rep. 186.

       See the New York Code of Procedure, secs. 402, 410, ei seq • Rule 35 of Supreme Court.


text:
    Brain against Rodelicks & Shivers.
    Commission to examine may be before issue joined. A rule for commission suspends the trial till the rule be vacated, or leave to proceed obtained; but if the defendant appear at the trial, and examine witnesses, it will be a waiver of the rule to vacate.
    In this cause it was necessary to examine a witness in the Havannah; and, as that port was open only to certain privileged vessels, in April, 1802, a rule for a commission was granted before issue joined, to prevent losing an opportunity of transmission which then presented itself. No return having been made, the cause was noticed for trial for the last sittings in March, 1803, when the defendant’s attorney, seeing some witnesses in the court, whose absence, he feared, might delay the cause after the return of the commission, appeared and examined them; stating, however, the circumstances of his case, and that he begged to be considered as acting without prejudice to his future rights.
    It was now moved, on behalf of the defendant, [*71] to set aside the *verdict, with costs; the plaintiff having proceeded to trial without vacating the rule for the commission.
   Per Curiam.

When a rule for a commission has been obtained, it suspends the cause till, on application to the court, a vacatur be ordered and entered, or leave obtained to proceed to .trial. But if the defendant appear and examine witnesses, it is a waiver of his commission, and the vacatur is unnecessary. The motion must be refused.

Motion denied.

         But notice of motion for judgment as in case of non-suit does not, Brandt v. Burrows, 3 Caines’ Rep. 140. [See note (a) ante, p. 4.]

       See also Webb v. Wilkie, post, 153.

         A commission lias been denied where the affidavit on which the application was made, did not state the cause to be at issue; and the marginal note is, that it will not be granted till after the cause is at issue, Jackson

        ex dem. Aikins and others v: Bancroft, 3 Johns. Rep. 259. But it has been said that a commission is grantable at any time after suit instituted. Concklin v. Hart, Cole. Cas. 69. Perhaps the rule is, that regularly the application ought to be after issue, but if particular and good reasons be shown, it may be made before. Anonymous, 2 Caines’ Rep. 259. Hackley v. Patrick, 2 Johns. Rep. 478.
      An issue of fact must be joined, or an interlocutory judgment obtained. before a commission can be issued.


text:
    Codwise, Ludlow & Co. against Hacker.
    When there are cross causes, and the plaintiff in each has obtained a verdict if material facts be omitted in a case made by defendant, and the papers from whence they may be inserted be in the hands of the plaintiff, the court will not order judgment to be entered, because cases have not been delivered, and though the cause has been noticed, but will give leave to amend and perfect.
    Practice as to noticing cases.
    The plaintiffs, in the sittings of June, 1802, at Hew York as owners of a ship of which the defendant was captain,' had, in an action against him for deviating from his orders, obtained a verdict, subject to the opinion of the court, on a case to be made; and he in a cross suit, had recovered against them a larger sum, subject to deductions, in case the opinion of the court should be against him as to certain items, charged and allowed by the jury.
    A case was made on the part of the defendant to which the plaintiffs proposed amendments, which were adopted; the cause was then noticed for argument for the next October, term, and also for January term following, in Albany. But it was then recollected that some material facts had been omitted, without which the case could not present the only important question in the cause. This was mentioned to the plaintiffs’ attorney, who would not say whether he would consent to the amendments or not. The papers from whence they were to be drawn, and the case perfected, were in the hands of the plaintiffs’ attorney in Hew York; so that the case could not be completed in Albany. Ho application was made to a judge to correct the amendments. Nor had cases been delivered.

      Hopkins

    now moved to set aside the original order to stay proceedings, that a case might be made,  and for leave to enter up judgment.

      Riker

    resisted the application, because the case was imperfect, and the papers from whence only it could be completed were in the hands of the plaintiffs.

        а) See Newkirk and wife v. Fox, Cole. Cas. 133.

   Per Curiam.

_ We must deny the motion; because, in the first place, there were cross verdicts to nearly the [*75] same ’’''amounts. Secondly, the cases were never perfected, and it did not appear to be exclusively the fault of either. Thirdly, the plaintiffs’ attorney not having denied the omission of certain material facts, the court would presume they had appeared on the trial, and ought to be a part of the case. Let the case be perfected within SO days.

Hopkins prayed costs, insisting he had been regular.

Per Curiam.

We consider that the plaintiff was irregular, in not answering, when applied to, whether he would receive amendments or not.

Motion denied.

The Court afterwards said, that where a defendant, after verdict, makes a case and notices for argument, if he does not appear at the time when called, judgment shall go: but when the plaintiff notices a case made on the part of the defendant, and the plaintiff is not ready, it shall go down.

       The practice as to noticing for argument, cases made, formerly was, that ¿lie party entitled to bring it on was required so to do in the next term, and on his neglect the opposite party was at liberty to notice. Hoyt and Bennett v. Campbell, Cole. Cas. 128. It has been since ruled, that either party may notice for argument, the right to bring it on at the next term being equal; therefore, if the party whose duty it is to make up the cases, and bring on the argument, be not ready to deliver them to the bench, when the cause is called on, upon the notice of the opposite side, judgment shall go against him. Malcolm ads. Bayard, 1 Johns. Rep. 316. But when a case is noticed on both sides, and called on first, upon the notice of the party not bound to prepare the cases, it is presumed the practice has been, to wait till it be called on upon the notice of the party who is so bound, and has the right to open, and not to allow judgment against him, unless he be not then ready, and the other party is. A cause noticed and not brought on, must be reroticed, as it will not be carried over to the next term, of cawús. Livingston v Rogers, post, 437.

       See Hun v. Bowne, ante, 23, n. (a).

       The time for making a case cannot be enlarged by a judge beyond the two days allowed by the rule of January, 1799, though he may that for proposing amendments, or appearing before him. Hornbeck v. Low, Cole. Cas. 127. But this case is now overruled, and a judge may, in vacation, enlarg* the time for making a case. Black v. Brown 9 Johns. Rep. 264,


text:
    Kemble against Bowne.
    In a policy on a vessel in a distant port from whence she is to sail, and stated to be there on a certain day, “ at and from,” mean the day on which she is mentioned to be there, and the policy takes effect from thence. It is not necessary to disclose how long a vessel has lain in port antecedent to the policy. The two per cent, dedusted on'a total loss, is, in case of disaster, a part of the premium.

    This was an action on an o}«n policy, 7,500 dollars, on the ship Helen, “ at and from Point Petre, Gruadaloupe, to St. Thomas’s, beginning the adventure at, and from Gruadaloupe, and to continue till her arrival at St. Thomas’s and there safely moored,” at a premium of 17 1-2 per cent. The policy was dated 3d September, 1800.
    The Helen was a prize ship, and had been purchased for Charles Globert, on the 20th November, 1799, whilst lying at Point Petre, for 6,450 dollars and 48 cents, including commission for buying.
    The defendant received no other information from the broker, than that the vessel was at Gruadaloupe on the 28th of July, 1800.
    The declaration contained an averment that the insurance was effected on account of Grobert.
    The cause was tried before Mr. Justice Livingston, on the 9th of April, 1802.
    It was admitted that a prior insurance had been made at St. Thomas’s, on the same risk, for 6,400 dollars, on which Grobert had received 4,349 dollars and 35 cents, being the net sum after deducting premium and commissions. [*76] *It appeared from the testimony of the captain, who took charge of the Helen on the 20th November, 1799, and continued to command her till the 6th February, 1800, that in that time he expended, in repairing and other necessaries, 1,335 dollars and 86 cents, including an item for wages in taking care of the ship, to a period af ter he resigned the command; his knowledge of the pay ment, he said, was derived from the information of the persons employed in that duty : that the Helen was American built, copper bottomed, and would have been worth, in New York, with an American register, 25,000 dollars. During the time he remained on board, there were occasi anally sugars and cotton put on board her, and taken- out again to load other vessels at that place, belonging to Mr. G-obert.
    From another witness it appeared, that being at Gruadaloupe, in July, 1800, he received orders from Gobert’s agent at St. Thomas’s, to take possession of the Helen, man, victual her. and send her to him there. That according to an account of one Brocha, Gobert’s agent, “ the purchase-money, unrigging and tarring, safe mooring and guarding the ship, while at Guadaloupe, amounted to 7,000 dollars. The witness paid Brocha- 3,000 dollars, part of the purchase-money, and Brocha told him Gobert paid him 4,000 dollars.” That some expenditures were made upon the ship before the witness took possession of her, to the amount of which he could not speak. But the bill of disbursements for the ship, “ paid by him for repairs and necessaries to get her despatched on the voyage from Point Petre to St. Thomas’s, was 4,461 dollars and 87 cents,” amounting in the whole to 7,461 dollars and 87 cents, paid by him.
    The ship sailed from St. Thomas’s some time in September ; the witness was a passenger; on the voyage she was captured, carried into Antigua, and condemned as prize; a claim had been interposed, in the prosecution of which, 317 pounds 11 shillings and 8 1-2 pence, was expended. The proportion of this to be borne by the, ship was admitted to be about 500 dollars.
    Mr. Farrers, an insurance broker of great eminence, said it was usual, in estimating the value of the ship, to allow wages advanced *to the captain and crew, [*77] (commonly a month’s pay,) as part of the outfit of a vessel; also provisions for the voyage, and all other charges for things requisite and proper to prepare her for the voyage insured. That no expenditures whatever, previous to the commencement of the voyage, are charges against the insurers on freight. That some of the items in the accounts, in his opinion, and according to his practice, required vouchers, or it could not be known whether they were proper or not. That in settling losses in such cases, vouchers were required by him.
    It was admitted that nine livres make one dollar.
    The judge, in charging the jury, stated, as the inclination of his opinion, that the policy could not be considered as attaching from the first purchase of the ship by Gfobert, at Gruadaloupe, but from the time some act was done towards equipping for the voyage. Whether, however, this was the case or not, and even to suppose it to have attached at the time of such first purchase, that it was not necessary to disclose to the underwriters the length of time the vessel bad remained at Gruadaloupe; nor that she had been used as a storeship at that place, He was of opinion that the account of the first witness ought to be laid out of the question; yet, however, independently of that, there appeared to be interest to the amount insured in this policy, beyond the prior insurance.
    The jury found for the plaintiff a total loss, without going from the bar, or examining the accounts.
    An application was now made to set aside the verdict, as being contrary to law and evidence, and grant a new trial.
    Pendleton,
    for the defendant, made two points: first, that the policy was void for concealment; secondly, that allowing it to be otherwise, the verdict could not stand, being against evidence in finding a total loss when only a partial injury had been sustained. On the first point he observed, that a contract must be taken as it is worded where there is no ambiguity, or it is no contract at all. In policies of assurance “at and from” a place, means first arrival at that place. Park, 38,  and the cases cited by Lord Hardwicke, in Motteux v. London Assurance Company, 1 Atk. 548. It is true that the construction is not universally the same. In France it is interpreted to be from the time of sailing. 2 Emer. 14. But in England it is regulated by special contract. 1 Marsh. 173. Bird v. Appleton, 1 [*78] *Marsh. 60. That “at and from” mean from the first arrival, is obvious from the words themselves, and the two first cited authorities. If not so, when did the risk commence? The judge’s opinion would make a new contract. It would be from beginning to equip for this voyage. But how is this to be ascertained ? The accounts of expenditure are without dates: they can show nothing, and this very circumstance is enough to throw' aside any other interpretation than the one contended for; because if the commencement of the risk he not mentioned, the policy is void. 1 Marsh. 182. If this lie so, then there was a material concealment in not disclosing the vessel’s having lain nine months at Guadaloupe, and used during that time as a storeship, or the stay was a deviation. On the point of concealment, it is settled that every fact not disclosed, which would increase the risk, is material and vacates the policy. 1 Marsh. 354. The difference of premium is decisive on the importance of communicating her stay. At St. Thomas’s it was 30 per cent.; here 17 1-2. To prove that concealing the length of stay would vacate the policy, he relied on Hodgson v. Richardson, 1 Black. 463. The stay would deteriorate the vessel, and increase the hazard; it was, therefore, a material fact to be disclosed, and if so, whether the loss was occasioned by the fact concealed or not, was perfectly immaterial. Fillis v. Bruton, Park, 182. Seaman v. Fonnereau, 2 Str. 1183. But allowing the verdict not to be void, the plaintiffs are not entitled to a total loss; the amount insured was . . 7,500 dollars,
    the first cost of the vessel was, including the' commissions and necessary disbursements, but throwing out the month’s wages and charges previous to the policy . . . so that the whole cannot be due.
    - 5,683 dollars,

      Hamilton, contra.
    In this case the situation and circumstances of the vessel antecedent to the orders for insurance were perfectly immaterial, and, therefore, needed not to have been disclosed. The only effect which the Helen’s stay at Guadaloupe could have had, would have been to render her less fit for the voyage insured. That she was completely adequate to its performance, was a warranty implied in this as in every other policy. It is a settled principle, that whatever is warranted against, whether it be in express terms, or by implication, need not be dl»
      closed,

       and the reason is obvious,' because it is [*79] *a risk the assured takes on himself. Though the construction given to the words “at and from” could not be totally denied, it could not be universally acceded to. The interpretation relied on was applicable only to those cases of insurance where a vessel was insured at and from a port to which she was going: but when the terms in question were used in reference to a véssel in a distant port, from whence the voyage insured was to have its inception, the expression could mean only from the time some act was done towards equipping for the voyage intended; at the utmost, it could not relate back farther than to the orders for insurance. But as the voyage might, even after the orders given, be in fact deserted, it would, perhaps, be the safest Interpretation, to say the policy should never attach but on some overt act, indicatory of carrying it into execution. On the other point, the accounts and the testimony on which they were founded, were before the court, and carried their propriety, or impropriety on their face.

        Leigh v. Mather.

       But though what is implied!y warranted against need not be disclosed, questions relating to it must be answered truly.

   Per Curiam.

Two questions are made in this cause.

1. Was every proper information given to the underwriters?

2. Were the charges proper and sufficiently proved ?

On the first, no doubt was entertained at the trial, nor is any now. It was not necessary to disclose how long the Helen had been at Guadaloupe, nor that she was a prize ship. The first could be material only in case her being there antecedent to the insurance had enhanced the risk, and the latter, in case of a warranty, or representation, which negatived her being a ship of that description. It is of no importance how long she had been at Guadaloupe, unless the policy attached from the moment of her arrival there, although it might have been several years before it was effected. The construction contended for would be unnatural. In a case like this, when a vessel has been long in port, previous to an insurance, the risk does not commence till some act be done towards equipping her for the voyage, or on the day on which she is stated, as here’ to have been in safety in the port from which she was to sail; this was the 28th of July, 1800. If she had been lost or injured before that day, the underwriters would not have been liable. When she is stated to have been at Gruadaloupe on a certain day, it must mean that she was there in safety, and that no preceding accident was to be made good by the assurers; it cannot, therefore, be material * where she was prior to that day, for the par- [*80] ties, by agreement, have ascertained that the risk shall commence on the 28th July, 1800.

The other question relates to the value of the vessel. In forming this valuation, there were added to the first cost sundry charges, on the propriety of which we are now to determine. On the trial one account was rejected, and we still think those charges improper, because they accrued prior to the 6th of February, 1800, five months before the policy attached; but principally because they are, with hardly any exception, of such natures as to have been occasioned solely by her stay at Gruadaloupe, and such as gave no permanent value to the vessel. They consist (except one anchor) of provisions, which must have been con sumed while the vessel was used as a storeship, and of wages and other disbursements, which become necessary by such stay, and ought not to swell the computation when we are ascertaining her worth.

To the other account it is objected that the items are neither proper nor well proved. As to the proof, the witness says, “The bill of disbursements for the ship paid by h'im for repairs and necessaries to get the ship despatched on the voyage from Point Petre to St. Thomas’s, amounted to 4,461 dollars, as per account (A) annexed.” There is nothing of hearsay in this; he paid the money himself, and states on what account. What he heard related only to the purchase money, not to what was paid for repairs; it is true there is no date to this account, but it is a fair deduction, from the deposition of Davis, that all these expenses were incurred after he took possession of her, which was in July, 1800 : for he expressly states, that he cannot say what expenditures took place before the vessel came to his hands. The propriety of many of these charges against an underwriter on the vessel is also denied. ,If these be deducted, there will still remain a sum large enough to entitle the plaintiff to retain his verdict. It is admitted that in estimating the value of a vessel, it is usual to allow a month’s pay advanced to the captain and crew, provisions for the voyage, and all other charges for articles necessary to prepare her for it. The counsel will be furnished with an estimate of the court according to this opinion, in which the deductions must be regarded as liberal as they respect the underwriters.

*Upon the whole, we are satisfied that the first cost of the vessel, and the expenses of such repairs and outfits as are properly chargeable against the underwriters on her, are fully equal to the sums covered by the two policies, and that therefore, a new trial ought not to hr granted.

New trial refused.

|5P“ By a statement which was read, as forming a part of the opinion of the court, the value of the Helen was thus estimated.

Dollars.

The Helen cost . . . 6,450 48

There was received on a prior policy . ■ 4,349 35

This leaves of her first cost for this policy 2,101 13

To this must be added the following Livres. Dollars.

items of the account (A) :

The hire of sundry hands for rigging

and ballasting, &c. . . . 7,020

Old cordage.....360

Do. 630, an anchor, 540, . . . 1,170

fPlank, 81, carpenters, 540, . . • 1,421

Beef and pork, 864, cable, 2,070, . 2,934

Cordage bought at vendue . . . 1,440

Caulking the long boat . . . 180

Bill for plank..... 74

Blacksmith’s bill, 474, caulker’s, 756 . 1,230

Two bills for crockery for cabin, 540, and

198 ...... 738

Paid for a boat . . 576

‡ A topgallant-sail and some others . 2,142

Two spars, 389, cooper, 270 . . 657

Shipchandler.....2,994 Carpenter’s bill, water, &c. 594

Wages to captain, &c., advanced . 3,672

* 27,202

Commissions at 5 per cent. . . 1,361

9 livres = to one dollar .

3,173 00

*Add also premium, of insurance on

second policy for dollars 7,500 1,312 50

Commissions on do. at 5 per cent. 65 62

Expenses of reclaiming her after capture . 200 00

6,852 25

A mistake in adding the items marked . 44 00

Interest as usual on this sum after deducting 2 per cent. .... 137 93

6,758 32

The two per cent., which, by contract of the parties, are to be deducted in case of loss, we regard as part of the consideration for the insurance, or as so much additional premium in the event of a disaster. To add it, therefore, to the valuation would be a violation of this agreement. The passages referred to in Wesket only show how an insurance ought to be made to be completely covered, not that two per cent, of the value shall not be retained where it is so stipulated. He admits this was formerly the practice in England, but the policies there do not now contain this clause: on the whole, we think two per cent, must be deducted from the preceding valuation and interest calculated on the balance, to wit, on the sum of dollars 6,758 32.

Mistake of dollars 88 88 in the item marked f makes the true sum dollars 6,669 44.

      а) The rule in England is, that when the words “at and from” are in a policy effected on a vessel then and before in port, the risk begins from the subscribing; when on a vessel expected to arrive at a certain place, but at which she has not arrived, the risk commences on the first arrival. Neither of these principles, it is evident, would govern here.

       If an insurance be “at and from” a foreign port, where a vessel then is, in the course of her voyage home, the policy attaches if she be in physical safety, though' she may be in political danger. Bell v. Bell, 2 Camp. 415. But if she arrives a wreck, and has never been once in safety, it does not. Parmeter v. Cousins, Ib. 235. But there is a degree of seaworthiness commensurate to the risk, which gives the technical safety required to render the policy effectual; for a vessel maybe seaworthy under the word “at,” while undergoing repairs, and when she would not be seaworthy “from ” her port, on the voyage, (Forbes and another v. Pilson, Park, 6th ed., p. 299, n. a, and the cases there,) though the policy be on her “at and from” her original port of departure. See also Garrigues v. Coxe, 1 Binney, 594.

       The value of a ship is what she may be worth at the time of sailing on the voyage insured, including repairs, value of her furniture, provisions and stores, money advanced to the sailors, and every expense of outfit, adding the premium of insurance. Marsh. 623, last ed. Agreeably to the above rule the estimate in the case was made, which, in order to be as explici on this subject as possible, is inserted at length.


text:
    Jackson, ex dem. Potter and others, against Hubbard.
    Under the act of the 8th January, 1194, for registering deeds of military lands, &c., a prior deed not deposited in the clerk’s office is void against a subsequent purchaser, for a bona, fide consideration, whose deed is deposited.
    Ejectment to recover lot Ho. 49, in Tully, in the county of Onondaga.
    From the case made, and submitted to the court, without argument, it appeared that the lessors of the plaintiff and the defendant derived title from the same patentee; and the only question was, whether, under the act of the 8th of January, 1794, for registering deeds and conveyances relating to military bounty lands, the deed, under which the defendant held, though subsequent in date to that by which the lessors of the plaintiff claimed, but first deposited with the clerk in Albany, should be preferred to that of the lessors, which had, before the passing of the act, been recorded in the Secretary’s office, but was not deposited with the clerk in Albany' till after the deposition with him, of that by virtue of which the defendant was in possession.
   *Per Curiam.

Both parties are fair purchasers [*83] of a lot of military bounty land. The deed under ' which the lessor of the plaintiff claims is prior in date, and was on record in the secretary’s office previous to the passing of the act requiring all such deeds by a certain day to be deposited with the clerk of the county of Albany, and declaring such as should not be deposited, void as to subsequent purchasers, for valuable consideration, who should so deposit their deeds. The defendant’s deed was so deposited. The deed from the first purchaser to the lessor of the plaintiff, together with the power of attorney under which it was executed, was also duly deposited, agreeable to the act; and the question which the parties have made is, whether such recording in the secretary’s office is [*84] to *be considered as notice, and thus satisfying the principal object of the act. We think it does not. It was not the design of the legislature to direct a mere registry of such deeds for the purpose of enabling the purchasers to examine a fair deduction of title. But the object of the act declared to be, is, the prevention of frauds, by facilitating the means of discovering forgeries. Mow the examination of a mere record' could not conduce to this end. Hothing short of an inspection of the original would, in many cases, answer the purpose; particularly where the forgery consisted in antedating the deed; and this species of forgery, we may infer from the act, which particularly alludes to it, was probably the most frequent.

We are of opinion, that

Judgment be for the defendant.

         A title under a deed of 1795, not proved and recordé l till 1807, was defeated by a deed of 1804, but duly recorded in 1806. Jackson v. Given and others, 8 Johns, Rep. 137.
      As to ouster and adverse possession as between tenants in common, see Butler v. Phelps, 17 Wend. 642; Jackson v. Tibbits, 9 Cow. 241; Jackson v. Whitteck, 6 Cow. 632. See also, as to presumption of grants, Jackson v. Miller, 6 Wend 228; Moore v. Jackson, 4 Wend. 58; Jackson v. Russell, 4 Wend. 453; Jackson v. Vincent, 4 Wend. 633; Doe v. Walter, 3 Wend. 109 Schamber v. Jackson, 2 Wend, 13; Jackson v. Mancius, 2 Wend. 357.


text:
    Vandyck against Van Beuren and Vosburg.
    Where a conveyance might have been claimed, and possession has gone . with the right to claim, a deed will, after 50 years, be presumed. A sole possession under claim of right for forty years by one tenant in common amounts to an ouster. The word “ desire" in a will raises a trust, where the objects of that desire are specified.
    This was an action of trespass guare clausum fregit, for entering and cutting wood in five several lots, in De Bruyn’s patent, in the county of Columbia. The plea was, not guilty, with notice that the defendants were tenants in common of the loci in quibus, and were seised in fee of a ninth part thereof. The cause had been first tried before Lewis, Ch. J., at a circuit court in Columbia county, on the 25th June, 1800. The facts were briefly these:
    .Stephanus Van Alen, by his will of the 17th May, 1740, devised inter alla, as follows: “Item,. I give and bequeath unto my sons Cornelius, Jacobus, and Ephraim, all my land, or share that I have in the patent called the Bruyn’s patent, lying within the bounds of Kinderhook patent, with all the privileges, hereditaments, and appurtenances thereunto belonging, or in any wise appertaining, unto them my said sons Cornelius, &c., and to their heirs and assigns for ever, each one equal third part thereof, the whole into three equal parts to be divided, with a proviso and restriction, that they, my said sons Cornelius, &c., do pay, or cause to be paid therefor, unto my daughters Hyletje, Elbertie, Jannettie, Christina, my granddaughter Maria, and their ^respective heirs and assigns, each the just [*85] and full sum of 12 pounds and 10 shillings, current money, within the time and space of six years next after my wife’s decease or "remarriage, in six even distinct payments, every year, to each the just and equal sixth part of the said 12 pounds 10 shillings aforesaid.
    “I desire my three sons Cornelius, Jacobus, and Ephraim, that in case any of my daughters above mentioned should be inclined to purchase of them the land in the Bruyn’s patent, (here above bequeathed to them) for a living for herself and family, that then they let such of my daughters have it at the same price they had it for.”
    ■ Jacobus and Ephraim died without issue: Cornelius left a son, Stephen, who had a son, Cornelius, each of which sons was the eldest in succession.
    In 1752, a division of the lands in Bruyn’s patent was laid out, by one Bleeker, and from that time to the time of bringing of the action, possession was proved by the plaintiffs in themselves and those under whom they claimed from Hyletje, the first possessor, who intermarried with Arent Van Dyck.
    The plaintiffs, in support of their action, offered proof of an application from Hyletje to Cornelius Van Alen for the purchase of the lands in question, and also a release and quitclaim from Stephanus Van Dyck, son and heir of Hyletje and Arent, to the plaintiffs then in possession.
    The judge refused to admit, either the one or the other.
    . The defendants claimed under a conveyance by lease and release from Maria, the granddaughter, who had married one Herkemer; but had constantly resided out of the limits of the United ^States, and after the [*86] death of her husband made the conveyance relied on. The admission of this conveyance, as testimony, was 'resisted by the plaintiffs’ counsel on three grounds:
    1st. That the plaintiffs had given sufficient evidence of absolute exclusive possession of the premises pretended to be conveyed to the defendants; 2dly. That this possession amounted to an actual ouster, even upon the supposition that a tenancy in common was created by the said will; 8dly. That supposing Maria Herkemer could be considered as a tenant in common, yet she had only a right of entry which is not assignable, and this being the case, it contravened the statute made to prevent maintenance.
    The objections were overruled.
    No evidence was given of the payment of the sum of 12l. 10s. to any of the daughters, or to Maria.
    The judge charged the law to be in favor of the defendants, in consequence of which a verdict was given for them.
    On a motion for a new trial in April term, 1801, it was so ordered; and the cause being heard before Mr. Justice Radcliff, on the 6th of October, 1801, a verdict was, on his charge, rendered for the plaintiffs.
    A motion was made to set aside this also, and grant a new trial.
    The facts were substantially the same as in the former cause, and the additional circumstances are noticed in the decision of the court, which was now delivered, the cause . having been argued at a former term.

       She was the daughter of the testator’s eldest son, Lawrence.

       Where the property and the person, or object of the bounty, are designated, a specific form of words is not necessary to create a trust. Therefore, “will and desire; desire and request; desire; it is my dying request;" raise a trust. Vernon v. Vernon, Amb. 4; Nowlan v. Nelligan, 1 Bro. C. R. 489; Pierson v. Garnet, 2 Bro. C. R. 38, 226. So “hoping.” Richardson v. Chapman, 5 Bro. P. R. 400. So “not doubting." Massey v. Sherman, Amb. 520; Wynne v. Hawkins, 1 Bro. C. R. 119. So “recommend," where the testator may command. Malim v. Keighly. 2 Ves. jun. 333; Ihe A0ttorney-General v. Davis, 9 Ves. jun. 546. See ibid 319, et seg. So if the persons intended be so described that the law can ascertain them, though not specifically named, as “relations, kindred.” Because the statute of distributions enumerates those held in law to be beneficially related. Hardinge v. Glyn, 1 Atk. 468, and the cases there. Palmer v. Scribb, 8 Vin. Abr. 289. So “descendants,” for they mean heirs. Crosley v. Clare, Amb. 397. So “ descendants living near a place.” Ibid. But “ all descendants" is too general So is “ continuing the bequest in the family.” Harland v. Trigg, 1 Bro. C. R. 142. So when the bequest is “ of what shall be left ” after a devise. Pushman v. Tilliter, 3 Ves. jun. 7. Later decisions have given to the word “family" the same construction as “relations.” Cruwys v. Colman, 9 Ves. jun. 319. In M'Leroth v. Bacon, 5 Ves. jun. 159, it was thought ¡hey might include a husband or wife. But at law, a devise in moieties, by the word “ family” was held void for uncertainty. Doe v. Joinville, 3 East, 172. It would bo injustice to the reader not to refer him to Mr. Finch’s note to Eales v. England, Pre. Ch. 200, 201.

        Buggins v. Yates, 9 Mod. 122, and Cunliffe v. Cunliffe, so far as they are cc/iim, the above decisions are not law.

   Per Curiam.

On the trial it was proved by the plaintiffs that they did then, and for about twenty years preceding, had lived on De Bruyn’s patent; that they had a house and orchard and 28 acres adjoining the same, as early as 20 years preceding, and that they held other parcels of land; that the patent was divided, in 1793, and the plaintiffs then took actual possession of the loci in quibus, which were uncleared wood lots, and that the defendants had cut- wood in some of them; that in 1796, the plaintiffs had leased parts of the lots contained in the declaration; that the plaintiffs claimed the whole of the lands in De Bruyn’s patent, under the will of Stephanus Yan Alen; that their mother was Hyletje, a daughter of Stephanus Yan Alen ; that in 1751, or in 1752, she lived where the plain-[*87] tiffs now do on the patent, and the ""plaintiffs then lived with her; that the land near the house was then cleared; that Hyletje died in 1767, and other parcels were cleared by that timQ, or at least by 1772 ; that one piece was cleared in 1761, and then in possession of the plaintiffs; that Stephen Yan Alen, the testator, had a son Cornelius who had a son Stephen, who had a son Cornelius, each of whom was the eldest son in succession.

On the part of the defendants, the will of Stephanus Yan Alen was produced, bearing date the 17th of May, 1740. It was proved that the testator left three sons, and that two of them died above fifty years ago without issue; that Maria was the daughter of Lawrence, the eldest son of Stephanus, and who died in the lifetime of his father; that Maria married, at the age of 20, one Herkemer, and in 1776 or 1777 went to Canada to her husband; that her husband died in 1795, and that ever since she resided in Canada. The defendants then offered a deed to them from Maria Herkemer, dated January 8, 1800, but this was overruled; that the defendants further proved, that in 1799, the son of Maria Herkemer offered the premises for sale to the plaintiffs for 1007 ; that the plaintiffs offered a price, but no bargain was concluded; that a few days after, one of the plaintiffs admitted that Maria' Herkemer was heir to one ninth of his land, the deed was then offered again, and rejected; the defendants further proved, that in 1751 or 1752, on a division of part of De Bruyn’s patent, and which was after the death of Stephanus, his eldest son Cornelius acted as agent for the share of Stephanus, and claimed, besides his own share under his father’s will, one third of the two shares of his two brothers who were dead; that Henry Yan Dyck claimed a ninth part of the patent, and that Hyletje, and the plaintiffs after her, claimed the whole share of Stephanus; that about that time Cornelius took possession of part, and paid four ninths of the costs .of an ejectment suit in defending the land, and that the plaintiffs paid five ninths of the costs; that on the division of the patent, in 1793, the share of Stephanus was designated as laid out for his representatives. It was further proved that the plaintiffs had offered 100?. for Maria Herkemer’s share, and one of the plaintiffs said Maria had a right to money, and not.land by the will; that at another time (about 4 years ago) one of the plaintiffs confessed he meant to buy a part of the premises of *Mrs. [*88] Herkemer; that Cornelius Yan Alen, the son of Stephen, who was the son of Cornelius, had for many years uninterruptedly cut wood in several of the lots mentioned in the narration, and that as well before as since the division in 1793; and that he, for several years past, had in possession, and still has, two pieces of land in the land allotted to the share of Stephanus Yan Alen: the deed of Mrs. Herkemer was again offered and refused, and a verdict taken for the plaintiffs.

It appears by the will of Stephanus Van Allen, referred to in the case, that he gave to his “ three sons, to wit, Cornelius, Jacobus and Ephraim, and their heirs, all Ms lands or share in the De Bruyn’s patent, each an equal third part, with a proviso or restriction that they should pay to his daughters Hyletje,_ Elbertie, Jannettie and Christina, and to his granddaughter Maria, (daughter of his deceased son Lawrence,) each 12?. 10s. in six equal payments: and that if any of the said children, or the grandchild, should die under age, or without issue, the portion of such child or grandchild to be divided equally among the survivors:” the testator further desired his said three sons, “ that in case any of his said daughters should be inclined to purchase of them the land in De Bruyn’s patent for a living for herself and family, that then they let such of his daughters have it at the same price they had it for.”

This controversy, upon a statement of facts substantially the same with that in the present case, was formerly brought into view before this court, and received a decision in April term, 1801. It came before the court upon a motion for a new trial for misdirection of the judge, who had charged the jury that the law was with the defendants, and who had admitted the deed of Maria Herkemer. A new trial was awarded by the court, and it is in consequence of such new trial that the present application is made.

In the former case it appeared that the plaintiffs claimed the loci in quibus as sons .of Hyletje, the eldest daughter of Stephanus Van Alen; that the defandants claimed under the recent deed of the widow Herkemer, and that her right arose under the will, she having survived the two [*89] sons of the testator, *both of whom had died without issue 55 years before the trial, when her right accrued, and that she claimed an undivided sixth part of two third parts of the testator’s interest in the patent.

The Court then decided,

1. That a deed from Oornelius to his sister Hyletje might be presumed from her entry fifty years before, and uninterrupted possession in her children since, according to the nature and situation of the land; and that this presumption was the more readily to be made since she had a right by the will to claim a deed, and had intimated her wish accordingly.

2. That if this was not so, yet that the deed of the widow Herkemer was void, for she being out of possession, and no demand or claim by her husband or her for forty-two years after she came of age, the jury ought to have been directed to presume an cutter, and that if ousted, she could not convey. The case in 1 Leon. 166. was referred to as proving that a feme covert, whilst feme covert, might be disseised, so as to render her deed before re-entry maintenance. The first inquiry that naturally arises in this case is, whether there be any change in the facts sufficient to change the conclusions of law that were drawn in the former case ?

1. With respect to the presumption that Hyletje received a deed from her brother Cornelius, the same facts are here to warrant it.

It appears that by the will of her father, an election was given to any of the daughters to purchase the premises, and a trust was raised in the will for that purpose ; that Hyletje entered upon the premises with her children as early as 1751, or 1752, and after her father’s death, and claimed the whole share of Stephanus; that she contiued in possession till her death in 1767, and that her sons have remained in possession of the loci in quibus down to the present day, and have also claimed the whole share of the testator; that this entry and possession of Hyletje must have been with the knowledge and assent of the other children, and have passed under their eye, for it appears that on the division of the patent in 1751, or 1752, Cornelius, the son of the testator, was present and claimed the whole of his father’s share, and took possession of part; that this possession must soon thereafter have been abandoned, since we find within the same year Hyletje in possession, *and this claim must soon thereafter have ceased, [*90] since we hear no more of it, and the claim of Hyletje remained sanctioned by possession; that the possession was such as the subject was susceptible of, it being understood that a large part of the premises was uncleared pine land, and from all these circumstances there arises a strong and unshaken presumption of right. A deed is justly, if not necessarily, to be presumed, and considerations of public convenience and sound policy will, under such circumstances of ancient and continued possession by colour and claim of right, require the presumption, We are therefore, clearly of opinion, that the decision in the former case applies .and governs the present one on the first point, and that the verdict is right and ought to stand, whatever may be our opinion as to the legal operation of the deed of Mrs. Herkemer. But,

2. We think that we are also bound by the former decision to consider the deed of Mrs. Herkemer as void, and that the same facts are stated in this case to lead to the same result. Her right, under the will, and upon the death of her two brothers, had accrued upwards of fifty years before the trial. Concurrently with the commencement of her right, Hyletje had entered under a claim to the whole share of her father, and under a right to elect and demand a deed for the same. This entry and enjoyment of the premises must have been adverse to the claim of her niece; and her possession, continued down in her and her sons, had every appearance of an exclusive and independent possession. One strong mark of exclusive owenership was the extension of the clearings from time to time, and this in pursuance of a claim to the whole share of the testator made by Hyletje and her sons. It does not appear that from the time of the commencement of the right of Mrs. Herkemer down to the date of her deed in 1800, a period of about fifty years, that she ever asserted her right, or received or claimed any share in the profits of the premises, and that an adverse claim of possession was constantly before her. These facts undoubtedly amount to an ouster and when the court in the former decision said that the jury ought to have been directed to presume an ouster the decision undoubtedly was, that the law raised this presumption, and that the jury were not at liberty to resist it; that it was a presumption of law arising from facts, and [*91] if so, it would not be the exercise *of sound discretion, it would be an idle and useless act, to remand this cause back to another jury, in order that the deed might be admitted, and then the jury might, under the direction of the court, presume an ouster, since we perceive that the facts require that presumption, since the law raises and draws that presumption from facts of which there is no controversy, and no other presumption can be warranted. The deed was illegal evidence, when it appeared that the grantor’s right, at the time of the execution of the deed, consisted in a right of action merely. The confessions of the plaintiffs made within a few years past, acknowledging the right of Maria by offers to purchase, whether made for the sake of peace, or from a conviction of her right, are not inconsistent with the fact of the ouster ; for, admitting her claim to have been turned into a naked right, these confessions might equally have been made. They do not, therefore, weaken the conclusion drawn, or resulting from the antecedent facts.

Our opinion accordingly is, that the defendants take nothing by their motion.

New trial refused.

       He claimed one-ninth of the patent, amounting to 900 acres, chiefly pine land.

       3 Durnf. 155, 169.

       Cowp. 217.

        Slyright & Page's cast

       Where the possession is old, and has gone according to the right set up, a deed necessary to the title will he presumed. Anon. 1 Tent. .257, Warren v. Greenville, 2 Stra. 1129. But when the possession is not ancient, and shown to be against the right claimed, a deed will not be presumed. Goodtitle v. Duke of Chandas, 2 Burr. 1065. Thus, if a surrender 200 years ago be shown, yet after a subsequent possession of 150 years under a rent stated in a parliamentary survey as freehold, a grant will be presumed even against the crown. Roe v. Ireland, 11 East, 280. So on a possession of crown lands, commencing by encroachment 55 years ago, if it be continued down within 7 years, a grant will be presumed, unless it appear that by statute, or otherwise, the crown could not grant. Goodtitle v. Baldwin, 11 East, 488. So after an abandonment of premises by a tenant, and 14 years’ possession, under a lessor who was entitled to enter on non-payment of rent, a re-entry will be presumed. Jackson v. Demarest, 2 Caines’ Rep. 382. But the non-payment of rent for nine years was held not to furnish evidence to make such a presumption. Jackson v. Walsh, 3 Johns. Rep. 226. The class of cases above referred to, seems to be no more than deductions from the rule of law, by which all things done are presumed to be legally done, unless the contrary appear; as that an apprentice deed, which was acted upon, shall, after a lapse of 30 years, be presumed to have been regularly stamped, though there be not any memorandum of such a stamp in the entries of the stamp office; (The King v. Long Buckby, 7 East, 45;) but where a right has not been acted upon, it shall, after a lapse of perhaps 20 years unaccounted for, be presumed to be extinct. Therefore, if in ejectment an outstanding title in a stranger be relied on, the defendant must show it to he a subsisting title under which possession has been had within 20 years, or it will be presumed to have been extinguished. Jackson v. Hudson, 3 Johns. Rep. 375. There is another class of cases, influenced by the doctrine of presumptions, arising from the rule, that all things which ought to have been done shall be presumed to have been done, unless, &o. Therefore, where the plaintiff showed title in his lessor under a devise to trustees, with directions to convey the estate in fee to the lessor at 21, and that he had attained that age, a conveyance from the trustees was presumed. England v. Slade, 4 D. & E. 682. But as the law never presumes a wrong, (see Williams v. East India Company, 3 East, 192,) a deed will not be presumed in violation of a trust, or even in favor of a possible breach, as where the trust is doubtful Keene v. Dearborn et al., 8 East, 248. A further rule to be attended to, in regard to presumptions is, there must be some fact in consequence of and in harmony with which the presumption may be made. Thus, if an alien enemy come into a country in time of war, and continues there without disturbance, a license shall be presumed. Maria v. Hall, 1 Taun. 37, (note.) So it a feme covert has for several years received the rents of her separate estate, an autkority from her husband will be intended. Doe v. Briggs, 1 Taun. 367. And whore an agreement to convey land dated in 1689, was shown, a conveyance was, -in 1809, directed to be presumed. Jackson v. Murray, 7 Johns. Rep. 5. But when the facts appearing contravene the presumption, it cannot be drawn; as when an insufficient deed to make a tenant to the prascipe is shown, a good one shall not be presumed. Keen v. Earl of Effingham, 2 Stra. 1261. Therefore, even after 20 years’ uninterrupted use of lights, a grant will not be presumed against a landlord not in possession, unless knowledge of the lights having been made, be brought home to him. Daniel v. North, 11 Bast, 312. The doctrines of admissions, extinguishments, implications and presumptions in law, would, to the scientific lawyer, afford am pie materials for a valuable work.

         The rule is stated, that as between tenants in common, &c., there must be an actual ouster. 1 Inst. 199, b; Smales v. Dale, Hob. 120. Therefore, the mere exclusive possession and perception of profits is not an ouster, (Fair-claim v. Shackleton, 5 Burr. 2604; Doe v. Keen, 7 D. & E. 386,) unless accompanied with a denial of the right to either, in the co-tenant. Doe v. Bird, 11 East, 49. But observe that the co-tenancy cannot be availed of by the defendant at the trial if hé has not entered into the consent rule specially. Jackson v. Denniston, 4 Johns. Rep. 311. But see Doe v. Croft, 1 Camp. 173,