text:
    Jackson, ex dem’ Norton, against Stiles, Grover Tenant.
    ALBANY,
    August, 1805.
    In ejectment, if the tenant swear to a good and substantial defence, the court will set aside a regular default, entered in consequence of the tenant’s in that the court was held at the circuit.
    RUSSEL moved to set aside the default and all subsequent proceedings, on an affidavit admitting due service of the declaration and notice, but adding, that be thought the supreme court, at which he was noticed to appear, sat at Salem, in the county where the lands ín question lie ; nor did know to the contrary till a few days before the circuit court, when he Was first informed that the supreme court did not sit at Salem, and that the court held there was only for the trial of issues joined in the supreme court, and that he had a good and substantial defence.

      Shephard contra,
    insisted that the sittings of the supreme court being regulated by statute, were matter of general notoriety, and therefore no excuse was shewn for the default. Besides, there had been a loss of a trial.
   Per curiam.

This is in ejectment: were we not to interfere, the possession would be changed. Take your motion on payment of costs.


source: Caselaw Access Project

license: Public Domain

text:
    Wilson against Guthrie.

      A regular default set aside of upon payment of cost, the defendant having supposed the suit in the common pleas, and having retained an attorney to defend there.
   ON an affidavit by the defendant, that when served with the writ in this cause, he supposed the suit to be in the common pleas, and had “ a substantial defence,” corroborated by the deposition of his attorney, that he was retained to defend upon information by the defendant that the suit was in the common pleas, and knew not to the contrary till he gave notice of retainer, the court set aside a regular default and subsequent proceedings upon payment of costs.


author: Kent, C. J.

text:
      Hinckley against Boardman.
    ALBANY,
    August, 1805.
    Where a verdict has been rendered in this court for less than 250 dollard, and afterwards set aside, the ordering supreme court costs is discretionary; but though none be specified, if it be on payment of costs, and the party obtaining the rule, serve a copy of a bill of costs of this court, with notice; of taxation, and the party served do not attend, on which an ex parte taxation takes, place, and supreme court costs are allowed and paid, it is a waiver of the right, if any, to insist on gorriinon pleas costs.
    RUSSEL, on an affidavit stating, that in the present suit, the recovery had been less than $250 ; that the verdict had. been set aside on payment oi costs, which had been taxed, at those of this court, and paid over, moved, on the part °f the defendant, that the taxation should be reviewed, and every thing received beyond the costs of the common pleas, returned.

      Shephard contra,
    read an affidavit stating, that after the rule to set aside the verdict had been obtained, he, as attor-uey to the plaintiff, made out the bill of costs, and submitted it to Mr. Russel, who mads objections to some items, all of which were immediately struck out. That notice of taxation was then duly served, but no person attending on behalf of the defendant, the bill was taxed ex parte, the costs received, and the allowance for the attendance of witnesses actually paid to the plaintiff.
    Spencer, J. When the motion was made for a-new trial, we were asked to grant a favor; the terms on which we would accord it, were in our disci-etion, and had costs been mentioned, we ought, in my opinion, to have allowed those of this court.
    Thomson, J. I do not think so. The rule was intended to be on payment of legal, taxable costs. It is not to be supposed, that a plaintiff should, on a defence, recover more than on a default.
    Livingston, J. When interlocutory matters are set aside, we ought not to look forward to what might be recovered, or back on that which has been ; supreme court costs appear to me the most proper to be awarded.
    Tompkins, J. I conceive when the verdict was set aside, it was on payment of such costs as were legally due. But I consider the defendant, by not attending the taxation after service of a copy of the bill of costs, to have waived all opposition to their amount.
   Kent, C. J.

He should have appeared and contested the taxing. His not doing so is a waiver of his right. Had it been otherwise, I should think the costs of the common pleas only were recoverable, though we certainly might have allowed supreme court costs had we pleased so to do. As things are, you can take nothing by your motion, and must pay the costs of resisting.


author: Per curiam.

text:
    Witmore against Russel.
    ALBANY,
    August, 1805.

    If a stipulation be given before motion made, to entitle to costs upon it, it should be entered,and a rule for judgment nisi taken out, and served with a certified copy of the bill of costs.
    ON an application for judgment, as in case of nonsuit, the defendant wished to include, in the costs now ordered to be paid, on stipulating, those taxed on a former stipulation, given without motion, but not entered with the clerk.
   Per curiam.

You should have filed your stipulation, entered a rule nisi for judgment, served a certified copy of the rule, with a taxed bill of costs, and made a demand of payment. You can take nothing by your motion unless you account for the not doing so.

N. B. This being done, the defendant obtained his costs* but the plaintiff had leave to stipulate again.


text:
    Nathan Leonard against Gideon Sunderlin.
    An affidavit for leave to amend a justice’s return in matters of fact, should specify them, that the court may judge whether ’they are material.
    SHEPHARD moved for leave to permit a justice to amend a return on an affidavit, stating that it was made put by one of the attornies in the suit, and on examination he finds it “ incorrect in point of fact, and defective as it “ existed before him.”
   Per curiam.

The affidavit is insufficient. It should have specified the points in which it was intended to amend, that we might .see whether the errors now existing, were material,


text:
      Jackson, ex dem’ Metcalfe, against Woodworth.
    The affidavit, to ground a motion for judgment of non-suit, ought to be by the attorney in the cause, and state that the cause was not brought to trial.
    THE affidavit for judgment, as in case of nonsuit in this cause, was made by the clerk of the attorney for the defendant, and though it stated a notice for trial, it did not allege that the suit was not tried.

      Weston for the plaintiff,
    relied on the above circumstances as conclusive against the application.
   Per curiam.

For the reasons assigned, you can take nothing by your motion,


text:
    Van Renselaer against Hopkins, Bail of Shelden.
    ALBANY,
    August, 1805.
    If the writ against bail be returnable so soon after service, that the defendant cannot, from the distance at which his principal resides, surrender’ him in time, the court will enlarge the period.
    EMOTT moved for time to surrender the principal on' an affidavit by the bail stating, that the capias, returnable on the first day of this term, was not served on him till the 22d of July; that Shelden resided YS miles west of him, and he himself near 300 miles west of Albany, to which place it was necessary to send for a copy of the bail-piece, so that it was impossible to make the surrender in due time, That the plaintiff had sued put a fi. fa. against the goods of Shelden, which, the deponent had been informed, and at the time verily believed to be true, was a complete exoneration from his liability.
   Per curiam.

Take your motion.


text:
    John Downing against George Backenstoes.
    A promissory note without words of negotiability, may, in an action by the payee against the maker, be declared on as a note within the statute.
    ASSUMPSIT by the payee of a promissory note, without words of negotiability, in which the plaintiff declared, as on a note within the statute ; and this was the only count in the declaration.
    Caines, on a general demurrer,
    , confessed, that if the case were to be determined on the English decisions, it . ... would be against him, but if it were res integra m this court, he had much to say.
   Per curiam.

The very point was settled in Green v. Long, April term, 1798, in conformity to the adjudications in Westminster-Hall. The plaintiff must have judgment.


text:
    Jackson, ex dem’ Robinson and others, against Munson.
    A conviction under the act, if after the signing the preliminary articles of peace, is void.
   MARGARET JOHNSON, daughter of Sir William Johnson, who was seised of the premises in question, was, in January 1783, convicted under the act of attainder. It was decided, that the attainder being after the preliminary articles of peace were signed, was void.

       Passed Oct. 1779.


author: Kent, C. J. Spenceh, J. Livingston, J. THOMPSON J.

text:
    Blasdell against Hewit, q. t. the Overseers of Kingsbury.
    ALBANY,
    August, 1805.

      A declaration for a penalty for selling liquor, contrary to the “ act to "lay a duty on “strongiiquors, “and for reg-"gulating inns "and taverns," ought to state where, the town where, time when, quality and quantity of liquor, and negative the liquors in the proviso in the 7th section.
    ERROR on certiorari to a justice’s court, in a qui tarn action for the penalties incurred under the seventh section of the act entituled, “ An act to lay a duty on strong liquors, “ and for regulating inns and taverns,” by which it is or-dained, “ That if any person shall sell by retail, any strong “or spiritous liquors, without having such licence as “ aforesaid, or if any person shall sell any strong “ spiritous liquors, to be drank in his or her house, out- “ house, yard or garden, without having entered into such “ recognizance as aforesaid, every person who shall be “ guilty of either of the offences aforesaid, shall forfeit, for “ each offence, the sum of twenty-five dollars : Provided al “ ways, that no person shall be subject to be prosecuted by “ virtue of . this act, for selling metheglin, currant-wine, “ cherry-wine, or cider, to be by such -person made, and “ which shall not be drank in his house, outhouse, yard or “ garden.” By the 16th section, the penalties are recoverable “ by any person who shall prosecute for the same ; one “ moiety, when recovered, to be paid to the overseers of. the “poor.” The declaration was “as well for” Hewit “ as M t^g overseers of poor, &c. that the now plaintiff “ did “ sell, or allowed to be sold, strong or spiritous liquors to “ be drank in his house, contrary to the form, &c. and " therefore,” “ the aforesaid Thomas Blasdell is indebted,” &c. To this the defendant demurred specially, “because “ it was not set forth to whom the said strong or spiritous “ liquors were sold, nor where and the demurrer being overruled, the cause went on by consent, as if upon the general issue, in which the jury found a verdict for the plaintiff.

      Weston, for the plaintiff in error,
    assigned the following reasons : 1st, That the action was in the name of the plaintiff below, and that of the overseers ; whereas, it ought, by the statute, to have been in his own. 2d, That though the overseers of the poor of the town were entitled, the decía - ration did not state time or place where the offence was committed. 3d, That it was in the alternative, “ sold, or al- “ lowed to be sold,” and therefore wanted certainty. 4th That the kind of liquors sold was not stated. 5th, That the declaration did not negative the selling to be of the liquors mentioned in the proviso. 6th, That the conviction was not set forth.

      Per curiam. The first point relied on for error, has been determined against you this term, in a cause under the act for the inspection of flour. The answer may therefore be confined to the other objections.
    Shephard., contra.
    By consenting to go to trial, the now plaintiff has waived all exceptions to the proceedings. As| to the last error urged, it is never required to state a conviction, in order to warrant a judgment.

       1 Rev. Laws, 484.

   Kent, C. J.

The act gives the moiety of the penalty to the overseers of the town in which the offence is committed ; this alone is fatal.

Spenceh, J.

The declaration wants time and place ; nor does it negative the qualifications of the proviso. For all of these reasons it is, therefore, bad.

Livingston, J.

It ought to have been shewn what liquors were sold, and perhaps to have negatived the others.

THOMPSON J.

The declaration is clearly defective on the last ground taken by Mr, Justice Spencer,

       16 Sec. 1 Rev. Laws 490.


text:
    Gardinier against Crocker.
    A clear mistake of the time when a writ is returnable, will, if merits be shewn, excuse a default, on payment of costs, and pleading issuably.

      W. Van Ness

    moved, in an action of assault and battery, to set aside the default and subsequent proceedings on two affidavits: one by the defendant, stating, that he thought the writ was returnable as of this term, and had a good and substantial defence ; the other by himself, that he had been retained to defend, but was informed the writ was returnable the first Monday in this August, and had not therefore given notice of retainer.

      Van Vechten, contra,
    stated the writ to have been returnable in May.

   Per curiam.

Take your motion, on payment of costs and pleading issuably.


text:
    Van Drisner against Christie.
    In real actions, motion must be made for judgment.
   IN dower, and all real actions, judgment cannot be entered without motion in open court.


text:
    William Meiks against Noadiah Childs.
    Practice to obtain bonds filed for security for costs.
   THE clerk cannot give up bonds filed for security for costs in an action where a non-resident is plaintiff; the application must be to the court, and the affidavit on which it is founded, should state the due taxation of costs, the name of the surety, and the non-residence of the plaintiff,


text:
    Benjamin M. Mumford against Peter A. Cammann.
    ALBANY,
    August, 1805.
    The rule as to changing the venue, by a defendant, on account of the residence of his witnesses, does not apply between the counties of King's & New-York.
    THIS was an application to change the venue from the county of King's, to the city and county of New-York, on an affidavit, that all the witnesses of the defendant resided in the city of New-York.
   Per curiam.

The rule we have laid down, as to allowing the defendant to bring back the venue, when his witnesses reside in the county to which it is to be removed, and the plaintiff does not shew he has any where it is laid, cannot apply to a case like the present. The court-house of the county of King’s, is so contiguous to the city of New-York, that there is no hardship in carrying witnesses from one place to the other. There is hardly a county in the state, in which the witnesses who attend atrial, do not travel further than they will in the present suit. Take nothing, by the motion.


text:
    Jackson ex dem’ Cramer, against Stiles, Williams Tenant.
    On application for attachment for costs on non-suit, for not confessing lease, &c. the affidavit must shew that there was authority to demand them given by the lessor.
   ON motion for an attachment for not paying costs, on account of the plaintiff’s being nonsuited, for want of confessing lease entry and ouster, the affidavit must state, that the person demanding them of the tenant, was duly au-thorised by the lessor of the plaintiff, according to the English practice.

         Run. Eject. 415.


text:
    Brandt ex dem’ M‘Cleland, against Burrows.
    A notice for judgment as in case of nonsuit, is not waived by a notice for a commission.
    SCOTT insisted, that the notice of motion for judgment, as in case of nonsuit, was waived by giving subsequent notice of an application for a commission.
   Per curiam.

The defendant knew you were entitled to stipulate, he therefore comes prepared, if you do that, to make his other motion. If you elect to have judgment of nonsuit against you, it is in your power. If not, you must stipulate, and then the motion for the commission will be granted.


text:
    Jackson, ex dem’ Lawyer against Stiles, Palmitier Tenant.
    Notice of motion to set aside proceedings gainst the casual ejector, and adimt the tenant to defend, is not bad because signed “ Attorney for “ the tenant.”
    QUACKENBOSS objected to the notice of motion to set aside proceedings against the casual ejector, and that the tenant might be admitted to defend, because it was subscribed “ Attorney for the tenant.”
   Per curiam.

There is nothing in the objection,


text:
    Stephen Reynolds against Daniel Bedford Daniel Herrick against Daniel Bedford.
    ALBANY,
    August, 1805.
    A demurrer to evidence is not a proceeding applicable to the 10 pounds act, and a justice may therefore overrule it, no joinder in demurer, or judgment prayed for. If a justice undertake to set out the oath he administered to a constable, and it vary from that prescribed, it is fatal, notwithstanding he state that he “ duly” administered it.

      ON a certiorari in these causes to a justice’s court, the errors relied on were, that in one it appeared on the face of the record, the justice overruled a demurrer to evidence, without any demand of judgment from the opposite party, on his having joined m it ; till which period, it was contended, there was no issue in law» That in the other, the constable, though said to be duly sworn, appeared not to have been so, as the oath set out was only, “ to attend the Í6 U said jury, and to keep them together in a private place, until they had agreed on their verdictand that in both cases the witnesses were sworn “ to maintain the action,” instead of,ic to declare the truth.”

      Cadey for the plaintiff,
    on the first point, cited 4 Bac. Abr. 137, and on the last, Day v. Wilber, 2 N. Y. T. R. 134.

       Old edition.

   Per curiam.

In the first of these causes, we think there is no error in the point relied on. The justice, in our opinion, was correct, in overruling the demurrer. The act conferring jurisdiction to justices of the peace, gives to either party the right of trial by jury ; and,when it is considered generally, that the justices cannot be much acquainted with the science of the law, it cannot be important to the parties litigant, to draw the examination of facts from the jury, to the court. An act of the last session, enables every party aggrieved, to obtain a special return of the facts ; and this we think, ought to supersede demurrers to evidence. They are frequently interposed to entangle justice in the nets of the law ; and we mean to be understood, that the inferior magistrate rightly overruled it, on the ground, that it is a proceeding inapplicable to suits under the “ act for the “ more speedy recovery of "debts to the value of twenty-five dollars.” The judgment in that cause must therefore be affirmed. In the second, it must be reversed, agreeably to the decision in Day v. Wilber. For the justice has undertaken to set forth the oath he did administer; and. as it is materially varient, the word “ duly,” cannot be of any avail.

       4 Sta. Laws 476. ch. 93.


author:
Kent, C. J.
      Livingston J.

text:
    John Clendining and John Adams against John B. Church.
    ALBANY,
    August, 1805.
    Neither a want of averring interest, nor the words of the insurance being “ policy to be “ proof of inter- “ est,” are of themselves evidence of a wager policy. On a wager policy, to entitle the assured to recover, the lost must be absolutely total; a technical total gives no right.

      THIS was an action on a policy of insurance on the schooner Neptune, from Wilmington, North-Carolina, to Kingston, Jamaica. At the foot of the instrument, was a written memorandum in these words: “ Warranting no- “ thing; policy to be proof of interest, and no insufficiency “ of papers to be of detriment to the insured.” The declaration contained no averment of interest in any one.
    At the trial, it appeared that the vessel, when pursuing the voyage insured, was captured by a Spanish privateer, and, on being chased the nest day by a British armed vessel, was run, by the prize-master, upon the rocks off the Island of Cuba» That while she lay there, she was boarded and retaken by the boats of the British, who got her off, after being much, injured in her bottom, and losing her and cables and keel. That they then carried her to Jamaica, where she was libelled and restored, on payment of one eighth of her value for salvage, but on being hove down to ]De examined, was found to be so much damaged, that to repair her wouxd cost more than the amount of the msur-rance, by which she was fully covered. In consequence of this, the captain, who was also owner, sold her for £120, Jamaica currency, to Messrs. Curry and Co. who repaired her, but what it cost did not appear. No evidence of abandonment was offered.
    On this testimony the plaintiffs rested their cause, and the counsel for the defendant moved for a nonsuit, because, as it was a wager-policy, and the Neptune did arrive, a loss had not happened; and allowing it to be an interest-policy, on which the plaintiffs might, notwithstanding the restoration, recover an average loss,' yet there was not any proof adduced to shew its amount. The judge inclining to this opinion, ordered the plaintiff to be called, and as he did not answer, granted the nonsuit.
    Application was now made to set it aside on the following grounds: 1st. That the capture by the Spanish privateer made the loss total, and entitled the plaintiffs to recover. 2d. That if it was an interest-policy, the plaintiffs were entitled to recover for a partial loss, the amount of which should have been submitted -to the j ury.
    Riker, in support of the motion.
    On a wager-policy, as there is no partial loss, a capture, though but for five minutes, creates a total one. On this subject the English decisions are not many, and those difficult to be reconciled. The first to which it will be necessary to call the attention of the court is Depaba v. Ludlow, Com. Rep. 361. In that case the vessel was, after capture, retaken; but the mere interruption of the voyage was held to give a right to recover. The same principle is found in Pond v. King, 1 Wils. 191. On a policy for time, the vessel was taken, retaken, and restored on salvage; yet the loss was ruled to be total. In Whitehead v. Bance, Marsh. 426, a similar decision was made. Pole v. Fitzgerald, Willes, 641, does not apply. That was not a case of capture, and the question here is, does a capture make a total loss ? On a wager, a capture gives a vested right, which subsequent restoration cannot defeat. On an interest policy, the rule is different, because it is a contract of indemnity, founded on property ; the restoration therefore, may affect the claim for a total loss, and make it only an average. No such reasoning can apply to a wager. On the second point, it is to be observe ed, that the words “ interest or no interest," do not necessarily make a wager policy. 1 Marsh. 99. That the present was a wager policy is not inferable, from there being no averment of interest in any one. It is not essential to aver interest, in an action on an interest policy. 2 Marsh. 591, citing Crawfurd v. Hunter, 8 D. & E. 13, where that point was settled on demurrer to the 4th count of the declaration. This then might have been an interest policy; the facts therefore, ought to have been submitted to the jury to determine the extent of the partial loss, as they, in themselves, afforded a means of ascertaining the amount.

      Pendleton and Hoffman, contra.
    The true principle on which wager-policies turn is, has there been a total loss of the' voyage ? Spencer v. Franco, Park 75. If not, a mere capture, which neither defeats the voyage, nor alters the property, gives no right of recovery. Dean v. Dicker, 2 Stra. 1250, acknowledges the same position. Lee, C. J. says, that had the ship been recaptured before carried infra prxsidia, the decision, which was in favor of the plaintiff, might have been otherwise. In Depaba v. Ludlow, the voyage was defeated by the interruption. So in Pond v. King, the insurance was for time, and the cruise totally lost. The same principle is recognised in Witherspoon v. Banks, Marsh. 406. We admit that in this country, actions on wager policies inay be maintained, and that if this be a wager policy, it was not necessary to abandon ; but if this be not a wager policy, then we contend the nonsuit ought to stand. The facts could not warrant referring the case to the jury. They had no criterion to estimate an average, and could not be allowed without a datum, to go by, to settle one by guess. Crawfurd v. Hunter, is not applicable to the case before the court. In that case the count demurred to, had words tantamount to an averment of interest. But whatever may be the English decisions on this point, our policies have a clause which renders it necessary. The underwriter contracts to pay only after proof of loss and interest. Against this maybe urged the memorandum. If so, then it is a wager policy, and within the arguments used on the first point, They are fully established by the decision in Pole v. Fitzgerald., which overturned the cases referred to by the opposite side, and established that on a wager policy, there could be no technical total loss. It is not requisite that the ship should actually perish. If she arrive at a port, not that of her destination, it gives a right to recover ; but when she does arrive there, a total loss cannot have happened, though a capture may have intervened.

      Riker in reply.
    The only reason why interest was ever thought necessary to be averred in a British policy, was to take it out of the 19 G. 2. c. 37, against wagering insurances. Therefore, where the contract is upon foreign property, no averment of interest is required, Nantes v. Thompson, 2 East 385. The determination in Franco v. Spencer, turned on die evidence not maintaining the count. The declaration stated a capture by enemies; and it was proved that at the time when the vessel was taken, preliminaries of peace were signed, so that there was, in fact, no enemy existing. To protect the insured against a capture ón a wager policy, the same words are used as in one on interest; on both, therefore, the construction must be the same.
   Per curiam, delivered by

Kent, C. J.

This must be considered in the light of a wager-policy. The words “ Policy to be proof of interest,” are not considered as being of themselves evidence of a wager-policy, 2 East, 390, although the statute of 19, G. 2. seems to prohibit policies with such clauses inserted, on the ground of their being wagers. Nor is the want in the declaration of an averment of interest in the plaintiffs, either in their own right or as trustees, to be considered as decisive evidence of no interest, since it has been ruled in the case of Nantes v. Thompson, 2 East 392, that such an averment is not requisite even in an interest-policy. But these circumstances taken in connection with a fact stated in the present case, that tíic captain was owner of the vessel, will determine the na-tore of die policy, especially as no agency or trust is any where pretended by the plaintiffs.

Assuming it then as a fact, that this is a wager-policy, the question is, whether the capture by the Spanish privateer amounted to a total loss ?

This was a bet upon the arrival of the vessel at Kingston in Jamaica. The perils which may have happened to the vessel on the voyage, are immaterial, provided she performed her voyage, for that determines the bet in favor of the insurer. It is stated that the vessel did arrive at Jamaica, and as no question is made about the particular port at which she arrived, we may intend that she arrived at Kingston. The intermediate capture was immaterial, as the voyage was performed before suit brought. This point does not, however, appear to be well settled in the books. Some of the cases, and particularly that of Dean v. Dicker, 2 Stra. 1250, go to prove, that even upon a wager policy, if the ship be taken, it is a total loss, however illegal the capture may be, and although the ship be taken or restored. Marshall, 424. But from what fell from Lord Mansfield, when speaking of the case of Pole v. Fitzgerald, in Goss v. Withers, 2 Burr. 695, and from what was observed by him, and the other judges of K. B. in Kulen Kemp. v. Vigne, 1 D. & E. 308, 310, the inference would rather seem to be, that a temporary capture, with a subsequent recovery and final arrival' at the port of destination, was not a total loss in the case of a wager-policy. This to me, appears to be the most advisable rule.

A temporary capture, in the case of an interest-policy, is a total loss only at the election of the insured, and unless he abandon pending the capture, he cannot make it a total loss. It is, therefore, not an absolute total loss, but a total loss at the election of the party. But in wager-policies, the loss should be absolutely and finally total, for otherwise a temporary embargo of only a day, without any other interruption of the voyage, would be a total loss, although the vessel should have arrived in safety. I the more readily adopt this opinion, because wager-policies ought not to be encouraged, and it is not pleasant that the time of the court should be occupied in discussing them.

Livingston J.

Though I concur in ththe patience of the bar, in stating the reasons that have led to this coincidence.

There can be no doubt, this was not intended as a gambling insurance. The policy is made “ proof of interest,” only to dispense with establishing that fact in the ordinary way. The nature of every insurance, whether on interest or otherwise, should perhaps always depend on the truth of the case, and not on any equivocal terms which may have been used for different purposes. Without determining, however, to which class this contract belongs, the nonsuit was in either case proper»

If of the gaming kind, as the vessel arrived at Jamaica, a total loss did not happen, in which event only can there be a recovery. It was strenuously insisted, that a capture even for Jive minutes, confers a right to recover on such policy, which cannot be defeated by a subsequent release and safe arrival of the property. Were we to sanction so extravagant a position, all insurances, especially during a war, would be converted into wagers, as the merchant on the slightest interruption, would receive payment for a total loss ; and also, if liberated, retain his property, the assurer himself not being entitled to salvage. It is astonishing that courts have ever intermeddled with wagers of any kind. It is not however for us to apply a remedy: this must be left to the legislature. In England this species of gaming is restrained by act of parliament ; and until our legislature provide the same wholesome checks, it is our duty not to hold out unnecessary encouragement to a practice, which, instead of promoting fair trade, the only legitimate object of marine insurance, is a direct incitement to the worst species of fraud. This we should do, were we to place the assured in a wager-policy, on a more favoured footing than those who have a real interest at stake, which is the direct tendency of the plaintiffs’ interpretation.

On an interest-policy, it is conceded, that capture for a time, is not a total loss, unless followed by abandonment while the restraint continues. If the cargo be valuable, or on its way to a good market, the owner will frequently prefer the chance of restoration to an immediate cession; but on the plaintiffs’ principles, a moment’s restraint fixes the underwriter of a wager-policy, although the property immediately after arrive at its destined port. I should be sorry if this were law, but it is not, and mischievous would be the consequences of a rule of the kind. It is of no use to enquire what length of possession after capture divests an owner of his property ; or whether the prize must be conducted infra prccsidia, or if an actual condemnation must intervene. It is now well settled, that the only question which can occur between parties to a policy is, whether there was a capture in fact, with this difference however, that on policies on interest, an abandonment may immediately be made, and the underwriter thus charged with a total loss ; but on other policies, there can be no abandonment to fix the party, and therefore a right to recover cannot depend on the single circumstance of capture, but on its consequences as to the future fate or destination of the vessel. As the assurer has no salvage, and cannot be called on for a partial loss, his undertaking must necessarily be, not that the vessel shall not be taken, but that she shall not be lost thereby, or ultimately stopped in her voyage. If she arrive safe, even after a capture, te wins, or rather does not lose the wager. Why, indeed, should a momentary obstruction by capture, any more than a detention to refit, after a fire or storm, be estimated a total loss ? The injury in the first case is often less than in either of the other. Were the insurer’s liability to depend on the naked fact of capture, how easy would it be, where there was an insurance on interest in the form of a wager, to induce a belligerent to possess himself of the property a little while, with the express view of charging the underwriter with a total loss. The assured might always with a little management win the wager, and at the same time secure his property.

But without further reasoning, the English authorities» cited by plaintiffs’ counsel, are directly opposed to his client’s pretensions. In Depaba v. Ludlow, the court did not proceed on the fact of capture alone, but on the “ damage “ which the plaintiff received by the interruption of his voy- “ age for the vessel on being recaptured, was brought to Harwich, and that too, not until after an action was comment e?d on the policy. It is not mentioned, whither the vessel was insured, but from the reasoningof the court, it could not have . Tr . , . .._ . , been to Harwich ; and then as she did not arrive at her destined port, the bet was clearly lost, and the defendant' ,. , , liable.

In Pond v. King, the insurer undertook that a certain privateer should cruise in safety three months ; the jury found she was prevented by capture, from cruising for that period, and judgment was rendered against him, not merely because of the capture, but of its effects, for the interruption of the cruise, which was the subject insured, is expressly made the ground of decision; but even this authority is shaken, if not overturned by a judgment of the House of Lords, which will be presently mentioned. In the case of Dean v. Dicker, at Nisi Prius, it does not appear whither the vessel was conducted after being cut out of a Spanish port, where she had been eight days ; of course it can form no authority here, and besides, it is very evident that Lord Chief Justice Lee was not governed by the solitary fact of a capture or short detention on the high seas, but considered the property as divested by being “ detained “ eight days in an enemy’s port.” It might, says he, have been otherwise, if the ship had been recaptured before she was carried infra preesidi a.

But if any obscurity remain after these cases, the question, how far a temporary interruption by capture amounts to a loss of the wager, the Exchequer Chamber and House of Lords have established conclusively in Pole v. Fitzgerald, that “ though a ship may be deemed for a time lost, yet, if “ she be afterwards recovered, a total loss has not happened ‘‘ within the meaning of the wager.” Such is Lord Mansfield's understanding of this decision, which indeed admits of no other, and contains in itself a complete answer to all that has been here urged in favor of the assured. In Kulen, Kemp, and others, v. Vigne, the arrival of the ship is regarded as the event insured by a wager policy, and although there might have been an abandonment, if it had been an insurance on interest, yet, “ as there was only a temporary " capture, we must,” says Lord Mansfield, “ consider what “ the truth of the case is between the parties and because the vessel might have prosecuted her voyage after she was liberated, the underwriter was not held liable. This vessel. &ad been detained in Spain, in consequence of a capture, more than two years, but as she might afterwards have gone on to Marseilles, the plaintiffs were deemed not to have 7 r , won the wager. 1 he insured here, I admit, were very hardly dealt with, for after a sale of the cargó, and a condemnation in Spain, which was not reversed until after a detention exceeding two years, it could not be expected that the vessel was, in contemplation of the parties, to proceed an ballast to Marseilles. Without going the whole length of this decision, which is no authority with us, it however establishes, as well as the other cases, beyond the possibility of doubt, that in England, the holder of a wager-policy cannot recover, if the vessel reaches, or might have reached, her port of destination, even after a detention by capture., or otherwise. The Neptune, it will be remembered, reached Kingston after a very short obstruction. Neither then, on the ground of authority, nor reason, can the plaintiffs’ claim for a total loss be sustained.

If this be an interest policy, the nonsuit is yet moré fice of difficulty. There being no abandonment during, cr even after the restraint, the loss, it is granted, is not total. The objection to a verdict for a partial loss arose at' the trial, from the total want of evidence as to its extent* It is not . . . N enough to prove an injury, but its nature and quantum should be ascertained.’ This must be in the assured’s power, and if he withhold, or neglect to produce the proper proof, a jury ought not to be permitted, at hazard of doing injustice, to come to a determination c^n vague and uncertain conjectures. No one upon this evidence, can say, whether a thousand dollars, or as many eagles, would have been an indemnity. As to the salvage, there was no proof whatever to what it amounted ; it was an eighth of the Nep-túneas value at Jamaica, but what she was appraised at, or deemed worth in that island, does not appear, and it was of course impossible to say what was paid on that accounts In trover for a ship, the value as well as the conversion must be proved. One vessel may be worth fifty thousand dollars,and another not as many cents. How then is a jury, with out proof on this point, to come to a proper result ? So the repairs of a vessel may cost a very large sum, or may not amount to as much per cent. as will entitle the assured to any recovery. To let a jury determine without some evidence of this fact, (for here was none at all) would be subjecting the defendant to an arbitrary assessment of damages, and allowing a plaintiff to take advantage of his own laches. On this ground, I directed the plaintiffs to be called at the trial, and see no reason to change my opinion. The plaintiffs must take nothing by their motion.

        Nantes v. Thompson.
        Com. 361. 1. Wils. 2. Str. 1250. Willes Rep. 641. 2 Burr. 695. 1 D. & E. 304.


text:
    Given against Driggs.
    Notice to appoint a new Attorney, need not be by rule of court, and 30 days is sufficient, but it must be personal or tantamount.
    AFTER a new trial had been ordered in this cause, the plaintiff, on the 30th of June 1804, personally served defendant with a written notice of it, requiring him to appoint anew attorney, as his former one had been promote to the Bench, and that in default of so doing, all subsequent notices would be served by affixing the same in the the clerk of the court. The defendant not having nominated any new attorney, the plaintiff gave notice of trial in the manner above mentioned, and, at the last Albany circuit, took an inquest by default, upon which judgment had been entered and execution sued out.
    Williams,
    on the above facts, now moved to set them aside, contending that the notice to appoint a new attorney, ought to have been by a rule of court ordering it to be done.

       1 Vol. 450.

   Per curiam.

In the case of Bennet adsm. Vielie, July term, 1802, it was decided, that the party must be warned or he is not bound to take notice of the proceedings, and in Harvey adsm. Hildrith, January term, 1803, we ruled that the defendant must have personal notice, or such as the court would deem tantamount. Our statute, like that of Hen. 4, requires a warning, and the personal service here, was a sufficient one, without any rule of court. The defendant was grossly in default, as nine months elapsed before the plaintiff went on. We think SO days a sufficient and reasonable notice in these cases. You can therefore take nothing by your motion.


text:
    Beadle against Hopkins.
    ALBANY,
    August, 1805.
    No notice of special matter is good, except under the gene-sal issue.
    IN covenant, under a plea of performance, the defendant gave notice of special matter, and the judge at the trial permitted equitable evidence to be Riven, upon which a verdict was taken for the defendant. The application was to set it aside and grant a new trial.
   Per curiam.

The motion must be granted with costs, to abide the event of the suit. Under the plea in this cause, die notice was inadmissible, and the evidence therefore improperly received. The statute requires the general issue to be pleaded, where special matter is relied on in evidence, under the notice our law permits.


text:
    Tower against Wilson, Sheriff of Washington.
    The nisi pri-us record is always amendaable by the issue roll, on payment of costs. Awarding a ve-nire to the proper officer on an, insufficient suggestion is, after verdict, cured by the statute of jeofails.

    SHEPHARD moved in arrest of judgment on the following grounds : 1st. That there was a variance between the issue roll and nisi prim record; the memorandum in the first being of January term, 1803, and that of the latter in 1804. 2d. That there was no special suggestion, that the sheriff of the county was interested, and no special award to the coroner, who appeared to have returned the venire.

      Foote contra,
    was stopped by the court.
   Per curiam.

The issue roll is allowed to be correct, and the circuit record is always amendable by it, on payment of the costs of the motion made. The second error is within the spirit of the statute of jeofails, which after verdict, cures the award of a venire to an improper officer, on an insufficient suggestion ; a fortiori if the award be to the right person. Take nothing by your motion.


author: Per curiam,

text:
    Jackson, ex dem' Colden, against Brownell.
    ALBANY,
    August, 1805.
    Where both sides have a right to notice a case for argument, and neither party brings it on tho' called, the judge’s order t® stay proceedings continues good over the term.
    WOODWORTH moved to discharge a- judge’s certificate to stay proceedings, because the plaintiffhad not brought on the cause to argument this term, according to notice, though there had been ample opportunity. He contended, that the certificate expired with the term, if the party ob=. taining it neglected to bring on the argument.
   Per curiam,

When the cause is of such a nature, that either side may notice for argument, both are equally in default if it be not brought on. The only mode in such a case to get rid of a judge’s order, is to give a counter notice, and when the cause is called on the calendar, to come Sward and demand judgment. Here each party has noticed, and neither one has moved ; the application muse therefore be denied. Had the cause been such, that both parties could not have noticed, then the present motion would have been right.


text:
    Anonymous.
    On an intended motion to set aside a report of referees, a judge’s order expires with the
    A similar application was made to vacate a judge’s certificate to stay proceedings, upon a report of referees.
   Per curiam.

Take your motion. I his case comes ex» actly within the exception in the last.


text:
    Caleb King against Mathew Fuller.
    .ALBANY,
    August, 1805.
    If a plaintiff in a justice’s court, allege that he " let" the defendant have a horse, in consideration of which the defendant "let" him have another, it shews with sufficient certainty an exchange, and not a bailment. If a former trial be pleaded in a justice's court in bar, and state the trial so that it appear it could not, according to technical rules have embraced the bar, the matter so stated, will be rejected as surplusage, and if the justice seem to have pronounced on that, which is thus rejected to support the plea, the judgment will be reversed. A set-off allowed, though improperly, in a former suit before a justice, is a good plea in bar on another for damages on the ground of a set-off; though if exception be originally taken against the set-off, it may be urged as in this court

      ON certiorari. The now defendant declared in the court below, that he “let the said Caleb have a certain bay horse, " and a note of hand of sixteen dollars, in consideration of “ which the said Caleb let let the said Mathew have a certain sorre^ horse, which the said Caleb warranted to be a sound “ and good working horse, whereas he was totally unfit for manner of business, to the damage,” &c. To this the plaintiff here, pleaded in bar, a set-off for these very damages, made by the defendant in a suit against him before another justice. Replication, denying the former trial, and alleging the illegality of the set-off. Rejoinder, affirming the former trial, and tendering an issue on that fact. Demurrer and joinder, upon which the justice ruled the plea insufficient, and without inquiry as to the fact of the former trial, went on to hear evidence on the point of damages, and pronounced judgment in favor of the plaintiff for twenty-five dollars.

      Shephard for the plaintiff.
    The decision of the magistrate on the point of law was erroneous ; for, on demurrer, fault.judgment ought to be against him who commits the first fault. The declaration here is clearly bad; it wants time and place. Besides, “ letting” a man have a horse, is not a sufficient consideration to maintain an action on a warranty; for the plaintiff below was a mere baillee, he sustained no injury from the unsoundness of the animal. The replication is also bad. In the next place, as there was an issue offered on the fact of the former trial, the justice ought to have awarded a venire on that point; instead of which he goes on to assess damages himself, on a matter in which no issue was pending-, under the idea that the rejoinder was bad.

      Weston contra.
    The declaration is substantially good, for enough appears to shew there was a demand, and term is to be overlooked in pleadings before a justice. Sub- , stance, however, is required, and the plea shews the set-off was of such a nature, that it could not have been received.

       The record throughout, had not the semblance of legal forms or proceedings.

   Per curiam.

It has been objected, that the word let, imports a bailment, and if so, that the unsoundness of the horse was immaterial, and not prejudicial to the plaintiff below. In reviewing the proceedings of magistrates, this court has decided that they will not require of the parties, who are to be presumed unversed in the forms of law, technical nicety, or legal precision. If the matter stated shew a good ground of action, it is all that is requisite. To test proceedings in justices’ courts by the rules of pleading adopted here, would be productive of the greatest injustice. The act giving jurisdiction to justices of the peace, requires of us, on certiorari, to pronounce judgment as the very right of the case shall appear, without regard to omissions, See. in mere matters of form. In common parlance, “ let” as used here, means exchange, and so the court will understand it.

With respect to the proceedings of the justice himself, the court will require a compliance on his part, with .the forms prescribed by the statute. If these have been departed from, and are not waived or cured by the statute of jeofails, the proceedings cannot be supported. This principle was adopted in the case of Day v. Wilber.

The opinion expressed, extends to the exception taken to the replication. It denies substantially, that any trial had ever been had on the matter stated as the ground of the action. It also alleges that it could not lawfully have been set off; this the court will reject as surplusage, and wholly irrelevant. But the last objection is fatal. After the defendant below had answered the replication, by alleging that the same matter had been tried, as stated in his plea, and tendering issue, the plaintiff demurred generally, and thereupon the justice decided in favor of the demurrer. There could have been no other ground for this determination than this ; that the rejoinder did not answer that part of the replication which stated, that it was unlawful for the plaintiff to have pleaded a set-off of this demand. That part of the replication we have been obliged to consider surplusage to support the replication itself, and it being so, an answer to it was unnecessary.

There has been injustice done by overruling the rejoinder, and thereby preventing the trial of a material fact, which, if true, ought to have barred the action.

"We must not be understood as determining, that damages arising from a fraud can be legally set off before a justice. If, however, it be pleaded, and is not objected to, and a jury pass upon it, the consent of parties thus to be implied,' will take away the error ; and it then becomes a bar to a subsequent suit. The judgment below must therefore be reversed on the last exception.


author: Kent, C. J. Livingston, J.

text:
    Cornelius W. Van Raugh against John Van Arsdaln.
    ALBANY,
    August, 1805.
    A discharge under the insolvent law of another state is no bar to a suit here, by a citizen of this state for a debt contracted within it, and who has not in any degree come in, under the proceedings under the insolvent act.

    ASSUMPSIT by the indorsee against the indorsor, of a note made in Rhode-Island, and indorsed to the plaintiff in this state, where he then was and now is a resident, by the defendant, whose established residence then was, and continues to be, in Pennsylvania, by the insolvent law which state, he was discharged in March, 1805. He did not include the plaintiff in the list of his creditors, nor mention the note in that of his debts, and the cause was issue long prior to his exoneration. Upon these facts it was submited to the court, whether the defendant could avail himself of the discharge in Pennsylvania, in bar of the present suit ?
   Kent, C. J.

This question arose in the case of George B. Ewert v. William Coulthard, which was decided inthi& -court, in January term, 1795, the plaintiff there, was a citi-aen of this state, and the debt was contracted here ; the defendant was a citizen of Pennsylvania, and pleaded a discharge under the insolvent act of that state, and the plea was overruled. Upon the authority of that decision, we are of opinion that the discharge stated m the case before us is no bar, and that the plaintiff is entitled to judgment. We give no opinion as to the operation of such a discharge, if the parties had been citizens of Pennsylvania, or if the debt had been contracted there, or if the plaintiff had given his assent to the proceedings under the insolvent law, or accepted any dividend of the defendant’s estate ; but, confining ourselves to the case before us, and to the antecedent decision, we declare only, that a discharge under the insolvent act of another state, will not take away the right of a citizen of this state to sue here upon a contract made here, and which is binding by our laws.

Livingston, J.

Supposing this question to be res inte-gra here, (which must also have been the understanding of the counsel of both parties) I had formed an opinion, and assigned my reasons at considerable length in favour of the defendant! having no doubt, after a very careful examination of the subject, that a cessio bonorum, under the laws of a state-where the debtor has his permanent domicile, ought to operate-as a discharge from his creditors in every pari of the world» To this opinion, which is the result of much reflection and research, I still 'adhere : but being recently informed, that a different decision has been made by this court in the case mentioned by the Chief Justice, I do not think myself at liberty to dissent from the judgment just rendered.

       At the time of the decision in Ewert v. Coulthard, the point had never received any direct determination in the English courts, although several cases look strongly towards it; but in Smith v. Buchanan, 1 East 6, the court of K. B. went the whole length of the present adjudication,


author: Livingston, J.

text:
    Samuel Penny and Joel Scribner against the New-York Insurance Company.
    ALBANY,
    August, 1805.
    The charterer of a ship, at so much per month, cannot on an insurance on his cargo, recover the extra sum paid during an embargo; such expenditure not being the subject of a genetal average, and not coverd by any words in the policy.

      ASSUMPSIT on a policy of insurance on a cargo valued at 4,000 dollars. The vessel was chartered to the plaintiffs for the voyage insured, at 400 dollars per month. The day after her homeward lading was taken in, an embargo was laid on, that continued two months and six days, at the expiration of which time it was taken off, and the vessel sailed on her voyage home. Whilst thus on her return, the assured, having received, notice of the imposition, but not of the removal of the embargo, made their abandonment, which was not accepted, and shortly alter, the vessel safely arrived. The plaintiffs originally churned for a total loss, according to the valuation in their policy, and also 1,600 dollars for four months hire of the vessel from the period of her first commencing to load, during her detention under the embargo, and until the final delivery of her loading in New-York. On the principle of these demands, an account was stated between the parties, and a verdict taken in favor of the plaintiffs for the balance, subject to the opinion of the court, whether it should stand, be reduced to any other sum, or entered for the defendants. The plaintiffs however, being, previous to the argument, informed of the decision of the Court of Errors in the case of Church v. Bedient and others, relinquished the idea of receiving for a total loss; yet they contended they were entitled to compensation to the amount of the money paid under the charter party durin g the existence of the embargo.

      Colden for the plaintiffs.
    We certainly are authorised to demand from the underwriters a compensation to the amount of the money paid for the hire of the vessel whilst embargoed. This is a damage within the words of the policy. We are to be kept indemnified from any loss by reason of restraints, or detentions. The detention was at a critical time ; when ready to sail. That therefore an injury has been sustained, cannot be disputed. It cannot be borne by the insurer on the ship; nor by him on the freight. Must it not then fall on the underwriter on the cargo ? for it was to bring home the cargo that it was incurred. It may be said that the property is not injured. But that is not the criterion. If the assured has been damnified, it is enough to entitle him to ask for reparation. In the case of ransom, the property is not deteriorated, yet the underwriter is liable. No objection can be made as to the nature of the claim, because an account is annexed to the case, for the express purpose of having it modelled as the court may think fit, and under a count for a total loss, a partial one may be recovered.

      Hoffman in reply.
    This is an attempt to charge the underwriter on the cargo, with expenses due on the freignt. it is no argument to say, because it is not to be exclusively borne by ship or freight, it must therefore be thrown on the cargo. The first claim was for a total loss. Finding this could not be supported, they come now, and ask the court to make that a ground for a partial loss which can, at most, be only a subject of general average. To adjust this the court have no data, and must step out of the policy, the pleadings, and the case. No particular interest can be charged with the expenses of detention. A doubt may be entertained how far those incurred in the present instance, are even a subject of general average. The whole results into this; the party has, under his contract, paid some hundred dollars more in one case, than he would in another.

      Harrison in reply.
    The expenses incurred by detention^ have been usually considered as charges against the freight, where not subjects of general average. This, however, is' a case sui generis, distinguishable from all to be found in the books. Where the freight is liable exclusively, a specific sum is to be paid for the carriage of the articles, and whether they arrive soon órlate, is immaterial to the owner of the goods, for he has nothing more to pay than his freight. When therefore he applies to the underwriter, the answer is you are not the sufferer j the freight has paid it. This does not apply here. Under this charter party, the owner of the goods is the sufferer by the detention, for he pays so much more in money, as the vessel was detained in time. This then is a loss on the cargo. The case, it is true, is novel. But considering a policy of insurance as a contract of indemnity, the plaintiff must, on the principles established as law, be entitled to compensation. Supposing however, this is matter of general average, there are data to shew something due, and then a new trial may be directed to ascertain how much.

         1 Caines's Ca. in Error, 21.

        N. 85. Tom. 2. p. 399. 1 D. & E. 127. 1 N. Y. T. R. p. 573. p. 279. 1 Vol. 631.

   Per curiam, delivered by

Livingston, J.

The subject insured- not being abandoned until it was in safety, that is, until three days after the embargo was removed, the plaintiffs, although ignorant of its liberation, cannot, consistently with the judgment of the court for the correction of errors in Bedient & Kimberly v. Church, recover as for a total loss ; nor can we, on the facts here disclosed, ascertain what is due to them for a partial loss, admitting a demand of that kind to be well founded. If entitled to any thing, it is to the de-fendants’ proportion of a general contribution towards reimbursing them for a sum, which as owners of the cargo, they paid in consequence of certain extraordinary expenses that accrued during the embargo ; but to make a calculation, we should know the value of sloop, freight and cargo. This not appearing, it is impossible so to modify the verdict as to do complete justice. If this cannot be done, it is said, that as this suit was brought in consequence of a former judgment rendered by this court, which has since been reversed, the parties should be permitted to go to a new trial, to ascertain the value of these different subjects, and the extent of the defendants' liability on the principle of a general contribution. This is reasonable, and I should readily accede to it, were the defendants chargeable with any thing on this policy but thinking otherwise, it is our duty to arrest the suit here, and not expose them to the expense of further litigation. It seems to have been conceded on the argument, that the plaintiffs, having contracted for freight by the month, were bound to pay even for the time the vessel was embargoed. This may be so, but I am inclined to think, that a detention of this kind, by a foreign prince, suspends the contract, whether freight be payable for the whole voyage, or by the month. Demurrage is certainly not payable during such restraints, and Pothier, in his treatise on charter-parties, says expressly, that' “ The owner of a vessel hired by the “ month, is not entitled to freight during an embargo.” Without, however, deciding a point, which has not been made, and admitting the sum thus paid, to have been justly due, the defendants cannot be called on to refund any part of it. This will necessarily lead to an enquiry, whether - ,the expenses arising out of a state of embargo, are to be defrayed by common contribution, or whether they be subjects of a particular average. That they are of the latter description, has been decided, after solemn argument, by the whole court of King’s Bench, in the case of Robertson v. Ewer, where it was held, that wages and provisions during an embargo, were not covered by a policy on the ship. This may be supposed inconsistent with our own decision in the case of Leavenworth v. Delafield, and therefore, as not forming a rule in the present case. But the two decisions are perfectly reconcilable; otherwise, for the sake of uniformity, the latter should be followed, unless manifestly incorrect, however respectable the other may be. There is, an evident distinction between a detention by capture and an embargo. In the former case, the charter-party is dissolved, and the captain (who is generally agent of all parties, to act for the best under every misfortune) reclaims both vessel and cargo, and, without being under contract, or obliged so to do, retains the crew, for the purpose of preventing an entire loss, and pursuing the voyage if the property be acquitted ; whereas he might dismiss them at once, and the underwriter be called on for a total loss. The expenses, therefore, incurred by a claim of this nature, being evidently for the general benefit, if not impliedly at the general request, and not the effect of previous stipulation or contract, which is at an end by the capture, it is but reasonable they should be defrayed in the same way. Ricard, in his treatise on the commerce of Amsterdam, assigns nearly the same reason for making a general average of wages in case of capture, and a particular average of them during an embargo. “ The " wages of a ship,” says he, “ detained by an order of state, ti shall not be brought into general average as in case of <c capture ; because, in the latter case, the crew remain to ct take care of the vessel whilst she is reclaimings and these a charges are occasioned with the sole view of preserving “ the ship and cargo for the proprietors ; but there is no “ room for sush pretence in the case of an embargo, as the “ sovereign who lays it, neither claims the ship or cargo, “ but only for political reasons prevents their immediate de- “ parture. Therefore it cannot be said, that the ship’s com- “ pany remained on board to prevent an entire loss.” The French ordinance declares, that such charges, during an embargo, shall be reputed as general average, if the vessel be hired by the month, but if freighted by the voyage, they shall be borne by her alone. Pothier, in his treatise above referred to, assigns a reason for this distinction, which is not very satisfactory, and therefore I shall not repeat it. From Emerigon, we also learn, that there are foreign ters’ though diere be a diversity of opinion among them, who hold all expenses consequential on an embargo, as particular averages. In this way, a person who has insured one species of property, can never be called on to make good a particular damage which may have happened to another, nor exposed to a loss not within the risk which he has assumed. On what pretence then, can an owner of a cargo call on its underwriter-, to make good any extra freight he may have paid for the carriage of it ? Pie does not undertake that the voyage shall be short or uninterrupted, but only that the goods shall eventually arrive safe ; and whether the transportation cost more or less, is a matter with which he has nothing to do. Whether the vessel encounter a tempest, or be embargoed in her way (if no abandonment be made during the detention) is to him of no consequence, so that the goods finally arrive, as was the case here, without damage, at their destined port, I am therefore for adopting the English rule in the case of an embargo, not on the ground of authority, the decision being posterior to the revolution, but as the most reasonable ; the most conformable to the understanding of the different classes of underwriters ; the best calculated to prevent confusion and embarrassment, and the most likely to throw upon each the loss which the particular subject insured by him, has sustained. Whether, therefore, the present plaintiffs were liable for freight or not, during the embargo, my opinion is, that they have no claim on the defendants, who underwrote their goods, for any part of it, and that judgment be rendered accordingly.


author: Thompson J. Livingston J.

text:
    Selah Strong and Richard Udall, Guardians of the Person and Estate of William Nicoll, an Infant, against Silas Smith.
    ALBANY,
    August, 1805.
    A traverse may be taken to any number of facts, if the whole of those facts make only one point necessary to a defence or claim, for a point in law is not single fact.
    TRESPASS for breaking the plaintiffs’ close at Islip, in the couniy of Suffolk, to which the defendant pleaded, 1st. That the locus in quo was the freehold of the trustees of the freeholders and commonalty of the town of Huntington, by whose command he entered. 2d. That the trustees being seised in fee of the locus in quo, demised to him for a year.
    Replication to the first plea, that the close was the freehold of William Nicoll, in the possession of the plaintiffs as guardians, and traversing the freehold of the trustees. To the second plea, that at the time when the trespass was committed, William Nicoll was seised of the premises in his demesne as of fee, in the actual possession of the plaintiffs, traversing both the seisin of the trustees, and the demise to the defendant.
    Rejoinder to the first plea talcing issue on the locus in quo being the freehold of the infant. To the second, a demurrer, assigning for cause, that the plaintiff had traversed “two " distinct and material allegations contained in the said se« " cond plea, to wit, the seisin in fee of the trustees of the " freeholders and commonalty of the town of Huntington, “ and also the lease and demise which is alleged in the said " second plea to have been made by the trustees of the free-" holders and commonalty of the town of Huntington, to " him the said Silas Smith, and therefore the said traverse is " multifarious double,” &c.

      Sanford in support of the demurrer.
    Every traverse should be to a single point. Co. Litt. 126 a. Bac. Abr. tit. Plea and Pleadings. H. Sec. 5. This principle shews the traverse to the second plea to be bad. Crogate’s Case, 8 Rep. 66, is, in the last resolution, a strong authority for the general position, that all issues must be single. The plaintiffs have traversed the whole plea, and had we gone to trial, we must have established the seisin and the demise, each of which is a several independent fact, traversable at the election of the plaintiff. Moor v. Pudsey, Hard. 316. The same doctrine is in Read’s Case, 6 Rep. 34, where it is expressly ruled, that when the defendant justifies through a stranger, the plaintifF may traverse the seisin or demise at his election. It does not say both. In the books of entries no precedent of such a traverse is to be found.

      Riggs and Radcliff contra.
    The traverse is the exact denial of the plea j and if the one be double, the other must be equally so. The result will be, supposing the demurrer good, that judgment must be for the plaintiffs, according to the well known rule, that on demurrer, judgment must be against him who has committed the first fault. It is true that a traverse, like an issue, must be to a single point; but a single point is not a single fact; for many facts may go to make up one entire, or single point of defence. Robinson
      v. Raley, 1 Burr. 316. Bolts v. Purvis, 2 Black. 1028, Com. Di. Tit. Pleader, E. 2. Here the point of defence is, the close being the freehold of the defendant. Both the facts which make this out, constitute one point. Did the negation of either fact singly, destroy the defendant’s title, then we had it in our power to traverse that, and admit the other. But as the denial of both is necessary to do away his point of defence, that the freehold is his, we, in traversing both, confine ourselves to one single issue.

      Sanford in reply.
    The rules of special pleading are, by admissions and avoiding to come to a single point. The doctrine contended for would destroy the whole system. To make the case in Burrows like this, there ought to have been a traverse to each fact stated in the plea.
   Per curiam, delivered by

Thompson J.

It is undoubtedly a sound and established rule in pleading, that a traverse is not to be multifarious, but to a single point. This however, does not determine what shall be deemed a single point within that rule. It cannot be a single fact. The rule I think well illustrated and exemplified in the case of Robinson v. Raley, 1 Burr. 316. That was also an action of trespass, and a number of pleas interposed. The replication traverses one of the pleas in the following manner. “ With-" out that, that the cattle were the defendant’s own cattle, and " that they were levant and couchant upon the premises, and " commonable cattle.” To this there was a special demurrer, assigning for cause, that the replication was multifarious. The demurrer however, was overruled, Lord Mansfield saying, " ’Tis true you must take issue upon a " single point, but it is not necessary that this single point " should consist only of a single fact. Here the point is the " cattle being entitled to common ; this is the single point " of the defence ; but in fact they must be both his own " cattle, and also levant and couchant, which are two dif-" ferent essential circumstances of their being entitled to " common, and both of them absolutely requisite.” Thus in the present case, the single point is the defendant’s right to enter the locus in quo. This right is set up as resulting from the two distinct facts of the seisin of the trustees, and their demise to the defendant, both of which were essentiaj to constitute the right. The seisin alone., of the trustees would have given no right to the defendant; neither would the demise of itself have imparted any, unless the trustees were competent to make it. If the defendant therefore, had traversed only one or the other of these facts, he would have tendered an immaterial issue, the trial of which would not have decided the merits of the case between, the parties. It is true, that in some of the very old cases, the court say, that any part of what the defendant makes his title is tra-versable, as in Hard. 317, exemplifying the very case now before us, it is laid down, where in trespass the defendant alleges a seisin in fee in a third person, and a demise to himself, the plaintiff may traverse either the seisin in fee, or the demise, at his election. But in no case which I have seen is it said, that he may not traverse both. Admitting, however, the ancient rule to have been, that he must traverse either the one or the other, I should consider that rule as altered by the decision of Robinson v. Raley, above cite d. The distinctions there made by Lord Mansfield, appear to me to be founded in good sense, and to warrant us in saying that although in the present case, the seisin of the trustees, and the demise to the defendant, are two facts, yet they make but one point, and the traverse is of course well taken. The plaintiffs must therefore have judgment.

Livingston J.

The merits of this case lie in a very narrow compass. A traverse, it is not denied, must be of a material point; so, neither can a plea contain a multiplicity of distinct matters, for every issue (and that applies to a plea, as well as to a traverse) must be single. By this, however, it is not intended, that a plea shall consist of only one matter of fact, but it may contain as many as may be necessary to constitute one defence. A special plea can hardly be a 1 t 0 V A % r% y, found, that is not -made up oí a variety of facts; all however tending to, and making parts of, the same point of defence. Here the point was, the defendant’s right to the premises, but to make out a lawful possession in him, it became necessary to state the several circumstances which constituted it, to wit: the seisin of the trustees, their demise, and his entry under it. On this plea, the plaintiffs might have taken issue ; but they preferred setting up a seisin in their ward, which being a matter different from that relied on by the plea, it became necessary to traverse the point oj defence conta-ne¿ -n ^ iatter. ⅛ SuCh cases, the only rational rule must be, that the plaintiffs may traverse all, any, or either of the material facts which compose the point of his adversary’s defence. This will not render the pleadings more complicated or intricate than if he puts them immediately in issue, by a total denial of them. A contrary rule, by driving the party to an election of traversing only one of the circumstances, would produce unnecessary bardhip. Whatever is traversable, and not traversed, is admitted.Why then, by this mode of proceeding, compel either party to admit several important facts, which the other may not be able to prove ? Thus, if the demise here had only been traversed, the seisin of the éorporation would have been conceded, and vice versa.

Crogate’s case did not turn at all on the point before us j and Read’s only establishes that the seisin, or demise, may be traversed; but how far they were both traversable, was not before the court.

The decision of Jones v. Ililchin, which was not cited, may at grgt appear favorable to the defendant, but it was founded on the authority of Crogate’s case, and both proceeded on a ground entirely different from that which is here taken. In both cases it became a question how far a replication or plea de injuria sua propria absque tali causa, was proper where the adverse party had “ asserted any right “ or interest in land.” It was decided in the negative, but what Lord Chief Justice Eyre says, in giving the opinion of the court, is deserving of notice. After reading the resolutions in Crogate’s case, he adds, “ Thus the rule is dis- “ tinctly laid down, that de injuria propria, is only to be “ received -where the defence set up is matter of excuse, “ and not where it asserts any right or interest. - But the “ reason is, not because it puts two or three things in issue, “ for that may happen in every case where the defence ari-- “ ses outof severalfacts, alloperating to one point of excuse: “ The reason is, because this plea is only allowed where an “ excuse is offered for personal injuries, and not even then “ if it relates to any interest in land.” The counsel too, who argued against the plea in Jones v. Kitchin, admitted, “ that if the several matters put in issue make together but one defence, they may be thus all put in issue together by de injuria suapropria.™ If so, why, by parity of reasoning, may not the same matters be traversed, if they really form but one defence ? The two following cases, which were not mentioned at bar, shew that this may be done ; but were we without authority, the thing, is too reasonable not to be permitted, nor can any one inconvenience flow from it.

In Wood v. Holland, Rolle, Chief Justice, held that the descent, as well as the disseisin, might have been traversed.

In Brake v. Kent, an executrix pleaded several judgments, and no assets ultra. The plaintiff replied they were kept on foot by fra ud. The defendant maintaining his bar, traverses that all or any of the judgments were kept on foot by fraudo This was held good, and yet on the reasoning of the defendant here, the traverse should have been confined to only one of the judgments.

S have no doubt, the replication is good $ but were it not, the plea for the very objections made to the traverse, would also be bad j so that in either case, the plaintiffs must have judgment; a for it would be very hard,” to borrow the language of Lord Chief Justice Willes, “to give judgment “ against a plaintiff, because he has only traversed literally Gt the defendant’s plea; for if the issue be wrong, the first fault is in defendant.

        Moor v.Pudsey. 1 Burr. 316. 2 Black 1023.

        Litt. 381. Salk. 91. 5 Rep. 66. 6 Rep. 24. 1 Bos. & Pull. 76.

        Stylle 344. Carth 125. WillesRep.410.


author: per curiam.

text:
    William Pinder against John I. Morris.
    WILLIAMS moved to set aside the judgment and execu- ,■ • .. aon m this suit, or to enter up satisfaction on the judgment obtained therein on a sealed note, upon production of a writ- ,. , c , ten discharge from the plaintiff, containing a complete release of all demands, costs, íkc.'and a receipt for the balance * 1 due, which the defendant swore he paid in full consideration of the note, and without knowing that any third person had an interest therein.

      Tiffany objected to the application, because the attorney had a lien on the debt for his costs, and might, by this species of settlement, be cut out. He contended also, that ’ the rule would be inefficacious, as the judgment entered was against Morrison, and the order of court would be in a suit where the defendant was named Morris,
    If a defendant has bona fide paid debt and c.°Jts toa P'a'n* tiff, the court will order satis-Action to be entered on to© judgment ob-gh the costs of the Jorneymaynot havebeenpaid, f.)r *ie llas, n° wen on the debt while in thede-fenfIant,shanc!s unless he give notice not to pay over, or sion to deiraud him.

      ALBANY,
    August, 1805.
   per curiam.

From the case of Welsh v. Hole, Doug. 238. sanctioned by Mikhell v. Oldfield, 4 D. & E. 123, and Read v. Dupper, 6 D. & E. 361, if the defendant pay to the plaintiff debt and costs, after notice from the attorney of the plaintiff not to do so, he .pays the costs in his owe. wrong, and Lord Mansfield said, the court could not go further. If the adverse party applied to the court to cancel the judgment by a set-off, then the court would take care that the attorney’s bill should be paid. In the case of Spencer v. White, April term, 1799, the court qualified the right of the plaintiff’s attorney, even, in the case of a set-off. The present motion must therefore be granted, as there is no pretence of notice to the defendant, or of any collusion between him and the plaintiff, to deprive the attorney of his costs. As to the variance between the names, this is a rule granted in the cause of Pinder v. Morris, and it will never be an authority for entering satisfaction on a judgment in one against Morrison.


author: _ . Per curiam.

text:
    Peck against M'Alpine.
    Adjourning a justice’s court for more than six days,- can-for ^rror^by him who has requested it.
    ON certiorari, the plaintiff relied on the justice’s having adjourned for more than six days.
   _ . Per curiam.

_ , , , , . It appears to have been so done on his own reffuest’ he *s therefore estopped from alleging it for error,


author: Thompson, J.

text:
    Zebulon R. Shephard against Austin Watrous.
    ALBANY,
    August, 1805.
    A submission to arbitrators is a good consideration for a note.If in an action for words, the matter in dispute be left to arbitration, It cannot, in an action to recover a sum they owed, be shewn that the words were not actionable.
    ASSUMPSIT by the payee against the maker of a promissory note for two hundred dollars, given under the following circumstances :
    The defendant, while under arrest at the suit of the plaintiff in an action of slander, made the note in question, to be delivered into the hands of certain persons, who were to decide upon the subject of controversy between them, and in consequence of this arrangement, was instantly discharged from custody; after which the arbitrators returned the note to the plaintiff indorsed 100 dollars.
    At the trial, the defendant offered to prove, that in the suit on which he had been originally arrested, the plaintiff had no cause of action.

      The judge deeming this evidence inadmissible, charged for the plaintiff, in favor of whom the jury found for the sum indorsed by the arbitrators. The case now came up, on a motion for a new trial, on account of misdirection at the circuit,. •

      Russel for the defendant.
    We shall rely on the want of consideration, and the manifest oppression, from the circumstances under which the note was given. Between maker and payee, the consideration is always open to inquiry, and as, from the case, it appears none passed to the defendant, the instrument cannot support an action. A note cannot be given upon the contingency of its becoming válid by what arbitrators may decide. The being discharged from custody will not, did it even appear a part of the consideration, make it better, for the note was previously made. A promise to pay money in consideration the plaintiff would withdraw a bill in Chancery is not sufficient to warrant a recovery. Tooley v. Undham, (fro. Eliz- 206, cited Esp. Di. 93. The defendant, when under arrest, could not legally make the note ; it was extorted by oppression, and taking an un» due advantage. Had money even been paid upon it, an action might have been maintained to recover it'back. Asta ly y, Reynolds, 2 Stra. 91a. Butter’s opinion in Cockshot-Vo Bennett, 2 D. and A. 766. Against opening the cause om which the note was executed, 'the reference to, and award, cannot be urged. In Steers v. Lashley, 1 Esp. Rep. 166, which was an action on a bill of exchange given for a balance awarded by arbitrators, the court permitted the defendant to impeach the note by shewing the consideration illegal. On the authority of this decision, the testimony offered ought to have been received, and the court therefore will grant a new trial to let it in.

      Shephard contra.
    There is no impeaching the award of arbitration, unless corruption be shewn. The consideration of the note was to abide an award. It is not necessary that a bond should be given for this purpose. A paroi submission is equally good ; and if it may be by parol, it may be by note, and the submission is the considei-ation for which it was given. Had there been only a verbal agree- and the referees had ordered 100 dollars to be paid, could it have been said that no recovery could have been had ? If not, then nothing can be urged against the present verdict. No unfair practices were shewn, and none are to be presumed.

      Sussel in reply.
    Had notes been executed by both parties, it would have altered the case, but here only one is given, and he is to pay at all events. If evidence of the nature of the matter submitted is to be shut out, an usurious transaction may be made the basis of a legal demand.
   Per curiam, delivered by

Thompson, J.

The present application for a new trial is made on three grounds. 1st. The want of consideration for the note on which the action is brought. 2d. That it was obtained by oppression and undue advantage. 3d. That the judge at the circuit excluded testimony which ought to have been admitted.

The want of consideration cannot be objected against the pote. There was an. agreement between the parties to submit to arbitration, a matter in controversy between them. Kyd on Awards, 7. 1 Ld. Ray, 248. Though this agreement was by parol, there can be no doubt but it was a good submission, and binding on the parties. We are to intend that a counter note was given, as no objection on that ground was made at the trial, and the agreement to submit was fully shewn. The note in question may be considered as the award of the arbitrators. It was conditional when made and put into their hands, to become consummated by their decision of the matter submitted ; and by such decision, it has become absolute for the payment of the money awarded to the plaintiff. The consideration, if any was necessary for the submission, was the discharge of the defendant from the arrest.

The second objection is equally untenable. Nothing is shewn in the case, that looks like oppression, or undue advantage. It is true, the defendant was under an arrest; but that of itself could not have been enough to avoid his acts, even had there been a final settlement, which, however, was not the case. There was only an agreement to submit the matter upon which he was arrested, to arbitration; the merits of which controversy, he had the right of contesting before the arbitrators.

With respect to the third point, we think the testimony properly overruled. The evidence offered was respecting the original cause of action, which had been submitted to, and determined by the arbitrators, with a view to open the whole merits of the controversy. This was certainly inadmissible. There is no rule better settled, or more consonant to good sense, than that which precludes parties from litigating on the original subjects of dispute, which have been fairly and legally submitted to judges of their own choosing, and an award made pursuant to such submission. Kyd 242. 1 Esp. Rep. 378. There are, however, exceptions to this rule, as where there have been some corrupt practices, or improper conduct on the part of the arbitrators. Nothing of that being presented in this case, we think the award final and conclusive. The opinion of the court therefore is, that the defendant take nothing by his motion, and that the plaintiff have judgment.

        Freeman v. Bernard.

        Bailey v. Lechmere.


text:
    Thomas Tredwell against Reuben Steele.
    ALBANY,
    August, 1805.
    IN covenant, by which the defendant agreed that “ he w would neither cut, or carry off the premises, or suffer u to be cut and carried off by others, any timber but from M the lands which then were, or should thereafter be clear- “ ed,” the plaintiff laid his breach, that the defendant u did “ cut and cany off the premises, other than such parts of {C the same as the defendant had, or has yet cleared,, divers a large quantities of timber, &c. .and did also suffer divers other persons to cut and cany away off the premises, “ other than such parts as the defendant' had., or yet has M cleared\ divers other, &c.”

      Shephard in arrest of judgment, said the covenant did not restrict from cutting wood'on parts then cleared, though by others.
    Under a covenant not to cut wood but from lands “ then “ cleared or “ which should “ thereafter be “ cleared,” if the breach be assigned in cutting on lands which the defendant had not cleared, it is bad, as they might have been cleared by others.
   Per curiam.

The breach is clearly bad j the fact assigned may be true, and yet the defendant might under the covenant have lawfully taken the timber, as it might have been from land cleared by others.


text:
    Thomas Bentley and others against Warren Smith and others.
    . ON a promissory note to Thomas Bentley, Allen Potter, John P. Becker, and Company, the declaration commenced in this way :
    A promissory jv>\.edoA.B.(C. though there be no otherpersons in the firm, cannot be declared tire Addition of ⅜ Company, viduaf^names must be stated, de^riptton SUof trading under otherw?se&it is bad on general demurrer.

      Albany, to wit: Thomas Bentley, Potter, John P. Becker, and Company, complain &c. To this a general demurrer.

      Foote insisted, that it was evident on the face of the re-corch ^at there were otherpersons not mentioned who ought to have been joined. Such a circumstance, if proved on a tr^ah would have prevented a recovery, and was equally fatal on general demurrer,

      C™ry, contra,
    was stopped by the court,
   Per curiam.

Stating that the plaintiffs named, and comPan7 complain, is acknowledging that other persons ought to sue. Did the defendants ever acknowledge there were no others ; this mode of declaring ought not to be suffered. Why did you not say Thomas Bentley, Allen Potter, and John P. Becker, trading under the stile and firm of T. B« A. P. J. P. B. and Company ? The demurrer is well taken, and the defendants entitled to judgment. But the plaintiffs may amend on payment of costs.


text:
    Hugh Moor against Roswell Ames.
    .An action will one justice, to recover back fineTmposedon a witness by ibi^cmitempt in a suit before ⅛™'
    ON certiorari. The suit before the justice, was to recover back a fine of $ imposed by the now plaintiff upon the present defendant, for a contempt in refusing to be sworn, or answer as a witness in a cause tried before him.
   Per curiam.

A justice is not liable to a suit for a judicial act, and the merits of the imposition of the fine, cannot pe overhauled before another justice. The magistrate ⅛ the first suit had exclusive jurisdiction to determine when the witness was in contempt.


text:
    Daniel B. Bradt against John George Cray.
    ALBANY,
    August, 1805.
    Tins oourt will not proceed ¿«is here.

      A BILL for exceptions had been sealed by the judges of the Common Pleas, and the parties attempted to bring on the argument, though no writ of error had been sued out.
   Per curiam.

Take back your cases. There is no Us pen* dens»


text:
    Nathan Leonard against Eli Freeman.
    ALBANY,
    August, 1805.
    IT appeared on the return to the certiorari, that the action in the court below, and in which a recovery had taken place, was instituted for expenses incurred in going to Albany, to swear to an answer to a bill filed by the now plaintiff, against the present defendant.
    The court of Chancery has exclusive jurisdiction over the question of costs accrued in that court.
   Per curiam.

The judgment must be reversed. The court of Chancery has the exclusive right to determine questions of costs in suits before it; and though the ground of the action might have been a vexatious bill, the justice could not have any cognizances


author: KENT, C. J.

text:
    Colden against Dopkin.
    R on the return! mons the de-tice without his journ "^n th® prayer of the mor^ftan1 six days, it is fa-ta*‘
   KENT, C. J.

This is a case upon certiorari, brought to reverse a justice s judgment, and submitted without argument. Several errors are alleged in the proceedings below, but it will be sufficient to notice only, that the justice adjourned the cause for more than six days without consent. The return states, that the defendant below was sued by summons, which was returnable on the 26th of July; that the parties appeared on that day and pleaded; that the plaintiff below prayed a day to prove his account, and the justice thereon adjourned the court to the 2d of August, on which day the plaintiff appeared in court, and the defendant was present, but said nothing, whereupon the justice, after hearing the proofs and allegations of the plaintiff, gave judgment for him.

Upon this case the justice had no authority to adjourn for more than six days after the day of appearance of the parties on the summons. The 2d section of the £10 act is positive, that the justice shall, upon the return of the summons, or at some other time, not exceeding six days thereafter, proceed to hear the cause, and in the presfent instance, the 2d of August, was the 7th day thereafter. There are other provisions in the act respecting adjournments; but none of them have any application to the present case, and there is nothing in the return from which we can presume any consent or acquiescence on the part of the defendant. The rettym contains pretty strong evidence, to the-contrary. On the day of the return of the summons, the defendant pleaded a special plea, and the plaintiff refused to reply, but called upon the defendant to plead the general issue ; which he refused to do, and then the adjournment took place at the prayer of the plaintiff; and on the day of adjournment, the defendant took no part in the proceedings, but remained a silent spectator. On this ground, therefore, of an adjournment beyond the time authorized by the act, the judgment below.must be reversed ; for where the act is positive in its directions, it must be strictly observed. The same point arose, and was determined, in the case of Palmer v. Green, in April term, 1799, and that decision being in point, governs the present.


author: Spencer, J.

text:
    Broome against Beardsley.
    ALBANY,
    August 1805.
    COVENANT on a sealed note, with a plea of non in= fregit conventionem.

    At the trial, after the jury were called, and placed in the jury-box, the defendant tendered a plea duly verified by affidavit, that he had puis darein continuance, under the act for giving relief in cases of insolvency, obtained his discharge, an exemplified copy of which, he produced. This being rejected as coming too late, he then offered in evidence, the discharge itself, as a bar to the plaintiff’s right of recovery. Against the reception of the testimony, it was insisted, that it was not admissible under the issue joined, nor without having been specially pleaded, or notice given. The points being reserved, a verdict was taken subject to the opinion of the court, whether it should stand, or a new trial be granted.

      Woodworth for the plaintiff.
    The plea, puis darein continuance, mustbe pleaded between the last, and the next continuance, into which it cannot be carried. Here the circuit was the next continuance, and the plea should therefore have been delivered before the first day. 3 Black. Com. 317. In no case can it be received after the jury are sworn. Paris v. Salkeld., 2 Wils. 138. The discharge could not be given in evidence, because the statute, 1 Rev. Laws, 434, allows of it only under the general issue, which is when the plea denies •r traverses the whole declaration. Imp• K. B. 324. That before the court does not do so, for it admits the execution ox the instrument.

      Boot contra.
    The plea may be tendered at any time be» fore verdict. Pearson v. Parkins, Bull N. P. 310. 7 3ac. Abr. by Guillim 358. The reasons why it must not be on the day in bank are to be seen fully stated in 4. Bac., Abr. 143, 4. From hence we may lay it down, that any time before verdict is not too late. In the very case cited from Wilson, it was ruled that the court were bound to receive the plea ; for at nisi prius it cannot be determined whether it be good or bad ; the party must be driven to his demurrer. On the second point it will be unnecessary to answer. A general issue is that which concludes to the country, and denies the declaration of the plaintiff.

      Woodworth in reply.
    Saying that a plea oí puis darein con= tinuance, may be received before verdict, amounts only to its not being admissible after ; not that it may be tendered at any time before. If the event take place, so that it could not be availed of earlier, the doctrine applies ; as if after the commencement of the circuit, and before verdict.
   Per curiam, delivered by

Spencer, J.

The case of Paris v. Salkeld, is decisive that a plea plus darein continuance is matter of right; and, if verified by affidavit, the judge at nisi prius has no discretion to accept it or riot, but is bound to admit it.

There is not a dictum to be met with that the plea was tod late. In the case of Pearson v. Parkins, cited in Buller’s Nisi Prius, 310, it was holden that it might be pleaded after the jury are gone from the bar, but not after they have given their verdict. The facts to warrant this plea, must have happened since the last, and before the next continuance. The last continuance is the return day of the venire facias, where the proceedings are in the ancient method ; the next continuance is the first day in bank thereafter, or the first day of the succeeding iei'rn. Continuances are from term to term. We are all of opinion that the plea was well pleaded and ought to have been received. The verdict must therefore be set aside without costs, and the plea tendered be filed nunc pro tunc, and be deemed parcel of the nisi prius record.


text:
    David Tower against Nathan Wilson.
    ALBANY,
    August, 1805.
    If a party serving a notice has Moí kept a copy, he may prove its contents by parol evidence* *
    THE only point was, whether a party who has served a notice, without keeping a copy of it, might give parol evi« dence of its contents ?
   Per curiam.

There was a notice served on the defendant to produce a Jt. fa. on the trial, or that the plaintiff would proVe it by parol. It appears that no copy of this notice was kepi. We think it might be proved by an affidavit of its contents. In this instance there is no other way to establish it, and the defendant has it in his power, by producing the original, to correct mistakes. In Tid'd’s forms, notices are proved, by affidavits of the substance of their contents,


text:
    Stillson against Sandford.
    Tfto’ the sums in tile several counts before a justice exceed 25dols. yet if a® one coant be for more, and the damages be laid at only 25 dols. it is within the jurisdiction of l Oh court. If it appear on the whole of the record that the cause before a justice lias been fairly tried, the judgrbent will not be reversed for' want of joining in issue or any technical error in- the pleadings.

      Shephard assigned as errors on certiorari, first, that ⅛ appeared on the face of the record, that the demand before the justice was beyond his jurisdiction. Secondly, that the cause was tried, though no issue appeared to have been joined.
    On- &e first point he said, the several sums in the various counts amounted to more than SIS, and were for different matters ; this, though the declaration did conclude within the sum authorized by the £lO act, was, he urged, erroneous.

      Per curiam. It has been decided otherwise in a case ⅛ Coleman, ✓

      Shephard.

    The plea, though beginning as a demurrer, was in substance a former recovery in bar, which the replication denies; but though there is no issue on the fact, the justice goes on to try.
   Per curiam.

Let the judgment be affirmed, Whenever We can possibly intend from the record that the merits were fairly tried, we will not examine or test by technical rules the formality of the pleadings.