author: Per Curiam.

text:
    Jackson, on the demise of Van Bergen and others, against Haight.
    If a plaintiff be prevented from proceeding to trial for want of papera, which he had an honest fair cause to expect, it will be sufficient to prevent an application for judgment as in case of nonsuit, but not to excuse the costa of the circuit.
    Scott, on an affidavit stating that this cause had been duly noticed for the three last circuits, and that younger issues had been tried, moved for judgment as in case of nonsuit for not proceeding to trial at the last circuit in Green, pursuant to notice.

      Ohamplin resisted the application,
    on a deposition setting forth that the papers necessary for- the defence had been left with him for eight months previous to the circuit, to use at the trial; but that they had been, two weeks before it was to have been held, taken from him by the person from whom he had received them, under a promise to return them before the time the cause would come on. That the title depended on the Oatskill patent; from the great length of the documents, and exemplifications in which, the expense, of cppies was so great as to render the saving it an object of importance. That in all other respects the defendant was ready for 'trial, and now relied on these circumstances being received as a sufficient excuse.

      Scott, in reply,,
    urged that the benefit of the papers might have been had by a subpoena duces tecum.

   Per Curiam.

We think the excuse sufficient to prevent a nonsuit, but not to relieve from costs; let, therefore, the defendant take nothing by his motion, on the plaintiff’s paying costs for not bringing the cause to trial at the last circuit.

Motion refused on payment of costs of the circuit.


source: Caselaw Access Project

license: Public Domain

text:
    *Jackson, ex dem. Salisbury, against Weed.
    If it appear the court would not have tried a cause at the circuit had the plaintiff been ready, judgment as in case of nonsuit will not be granted, and costs will be allowed only for the witnesses, up to the time when the determination rf the circuit judge was made known.
    Soott moved for judgment as in case of nonsuit for not proceeding to trial in the county of Ulster, according to notice, in tbis and several other causes depending on tbe Catskill patent.
    It appeared that at tbe, close of tbe circuit, tbe judge gave it to be understood be should try none of those suits, a case having been made, and tbe decision then pending in another cause resting on tbe same title, but this intimation was not given till towards tbe end of tbe circuit, and no attempt was made to bring on tbe causes on tbe first day according to notice.
   Per Curiam.

Tbis case is to be distinguished Irom tbe preceding, in which tbe plaintiff acknowledges be was ready for trial in all respects but tbe want of bis papers. It was therefore m some degree bis own laches in not procuring them, nor countermanding his notice, and the cause was at issue in another county from that in which tbe above intimation was given. But here, bad tbe parties been willing, tbe court would not have proceeded. Costs, therefore, for tbe attendance of witnesses on tbe first day is all that we shall order.

Motion denied.

N. B. — The court seemed to incline that if a number of issues depend on tbe same title, and a case is made in one, tbe plaintiffs need not continue to notice for trial, circuit after circuit. If, however, they should do so, though tbe non-decision of the cause in which tbe case was made might excuse judgment as in case of nonsuit for not proceeding to try, pursuant to notice, it would not exonerate frcm costs. •


text:
    Chandler and Wife against Trayard.
    An application for a new trial on account of newly discovered evidence is an enumerated motion.
    Scott endeavored to bring on, as a non-enumerated mo* tion, an application for a new trial in this cause, on an affidavit of newly discovered evidence.
   Per Curiam.

It is clearly an enumerated motion,, and cannot be heaid this day.


text:
    *Jackson, ex dem., Norton and others, against Gardner.
    An affidavit of service, stating it to be by leaving notice and copy on the table of the opposite attorney, is not good, unless it alsb set forth that there was not any one in the office.
    Van Veohten moved, on the common affidavit, for judgment as in case of nonsuit for not proceeding to trial, but the affidavit of service stated only that it was made by leaving copies on the table of the attorney’s office, about one o’clock in the afternoon*
   Per Curiam.

The affidavit is defective ; it does not set forth that there was no one in the office. The notice might have been slipped down without any intimation, and have remained there unobserved. To make such a service good, it ought to have been stated there was not any one in the office. The defendant can take nothing by his motion.

Motion denied.


author: Per Ouriam.

text:
    Bain against Thomas and Geeen
    No agreement between attorneys can be noticed unless reduced to writing. See 1 Caines’ Eep. 148, n. (a.)
    Russel moved for judgment as m case of nonsuit.

      Blanchard resisted tbe application on an affidavit stating a conversation, which he considered as an agreement to waive the irregularity.

      Russel wished not to rely on the rule respecting written agreements, could the conversation be substantiated.
   Per Ouriam.

The court cannot take notice of agreements between attorneys, unless reduced to writing. If it is intended to waive the rule on this subject, the motion must be withdrawn ; otherwise judgment of nonsuit must be entered, unless tbe plaintiff stipulate and pay costs.

Motion granted nisi

        Parker v. Root, 1. J. R. 320; Combs v. Wyckoff, 1 Cai. R. 147; Shadwick v. Phillips, 3 Cai. R. 129; Dubois v. Roosa, 3 J. R. 135; Brandt ex dem. Palmer v. Borrian, 3 Cai. R. 131; Griswold v. Lawrence, 1 J. R. 507; Browes v. Wellington, 1 Sandf. E. 664.


author:
      Per Curiam,.
     Spencer, J.

text:
    Palmer, Schuyler and Nelson against Mulligan, H. and N. Moody and Gates.
    If two causes turn on the same point, and a verdict be given in one on which a case is made, it is enough to prevent judgment as in case of nonsuit for not proceeding to trial in the other, or a stipulation, but will not excuse costs..
    Tan Antwerp, on the common affidavit, moved for judgment as in case of nonsuit for not proceeding to trial.

      Woodworth, contra,
    stated, that this was one of two.causes depending on tbe same point. That in tbe other, tbe verdict bad been given against tbe plaintiffs, contrary to tbe opinion and charge of tbe judge before whom tbe cause bad been tried, for which reason tbe present suit had not *been brought on, and a case was made in that which bad been heard, and was now before tbe court.

      Van Antwerp, in reply.
    A case ought to have been made in tbe other cause; as it has not been done, it is a waiver of any intention to rest on tbe point in the other; tbe plaintiffs must, therefore, pay costs and stipulate, or we must have our j udgment.
   Per Curiam,.

You are entitled to costs, but as there is a sufficient reason for not proceeding to trial, we shall not oblige tbe plaintiffs to stipulate.

Spencer, J.

I think they ought to stipulate. There ia a verdict in favor of the defendants, which, till the contrary is shown, we ought to think correctly given.

Motion denied.


author: Per Owriam.

text:
    Bradt against Way and Wife.
    If a canse Be submitted to arbitrators before a circuit, and an application' afterwards made for judgment as in case of nonsuit for not proceeding to trial, the plaintiff will be entitled to costs for resisting the application.
    Van Antwerp moved for judgment as in case of non-suit for not proceeding to trial according- to notice.

      Van Yeveren read an affidavit stating,
    that previous to the circuit, arbitration bonds had been entered into by the parties in the suit, and an award made.
   Per Owriam.

Let the defendant take nothing by his motion, and pay the costs of resisting this application.

Motion denied with costs.

N. B. It seems that whenever the affidavits contra disclosed circumstances that clearly show the application noticed will be ineffectual, costs for resisting will follow the denial.


text:
    Stocking against Driggs.
    If issue be joined before a justice, a trial had, and the judgment be rendered, it ought to specify it to have been on “hearing the proofs and allegations," or it will be bad on error brought.
    Error on a certiorari upon a judgment in a justice's court.
    From the return it appeared that the action below was brought against the now plaintiff, as the maker of a promissory note for 20 dollars; that after a plea of non assump-sit, the defendant below prayed an adjournment, which being granted, the plaintiff Driggs appeared on the day given. The record then went on thus : “ And the defendant not appearing, although solemnly called, I the said justice proceeded on the producing the said note by the said plaintiff, and '"gave judgment for the plaintiff on said note, for the sum of, &c.

      Williams, for the plaintiff.
    The return shows that the justice proceeded -without examining any witnesses. This judgment is founded on the simple production of the note. This, in no court, is sufficient to entitle a plaintiff to recover, still less in that of a justice.

      W. Van Ness, contra.
    As the note was produced it must be intended it was proved..
   Per Curiam.

The judgment ought to have been “on hearing the proofs and allegations” of the parties. 1 Rev. Laws, 497. The judgment must, therefore, be reversed, for it was error in the justice to give judgment till he had prooí of the note.

Judgment reversed;

       In a justices’ court the plaintiff must prove his case before he is entitled to judgment, even although the defendant makes no defence; nor can a plaintiff enter judgment on default of the defendant. Muscott v. Miller, 1 Code Rep. 123; Smith v. Falconer, 1 Code R. 120. Contra: see Everett v. Lish, 1 Code R. 71. As to justices’ power of entering judgment, see art. 8, tit. 4, ch. 2, part 3, Rev. Statutes; see Code 1851, § 53, [sec. 46,] p. 22; art. 8; Bromaghim v. Thorp, 15 J. R. 476; Martin v. Moss, 6 J. R. 126; Gale v. Chace, 3 J. R. 147; Hubbard v. Spencer, 15 J. R. 244.


author: Kent, Ch. J.

text:
    The People against The Judges of the Court of Common Pleas in and for the County of Washington.
    The affidavit for an attachment against judges of an inferior court for disobeying a mandamus ordering them to seal a bill of exceptions, ought to show that the persons served are those who ought to sign.
    Emott moved for an attachment against the defendants for not obeying a peremptory mandamus, commanding them to sign a bill of exceptions. See vol. 1, p. 511. The affidavit did not slate the service to have been when the court was sitting, or the persons on whom made. . -
    Champlin, for these reasons, objected to the application".
   Kent, Ch. J.

It ought to appear that the persons who were served, were those who ought to have sealed the bill. Nothing can be taken by the motion.-

Motion denied.


text:
    The President and Directors of the Columbia Turnpike against Woodworth.
    A person merely riding through a gate of the Columbia turnpike, is not. liable to the penalty of the ninth section, unless it be accompanied with force and violence.
    This was an action brought for the penalty, under the' ninth section of the act incorporating the Columbia turn-”' pike road, for simply riding through a gate without paying toll, without any force or violence. The question was, whether the action was maintainable.
   Per Curiam.

The act had in contemplation only forei-ble and violent passings-: the plaintiffs may sue for their toll, but this certainly is not a case within the penalty of the section relied on.

Judgment of nonsuit.

       See present practice as considered in 3 Howard’s Rep.


text:
    *Masterton, gentleman, one, &c. against Benjamin.
    If special bail be duly entered, but notice thereof and of justification be not given till after the arrest of the bail, proceedings on the bond will be staid on payment of costs. See 1 Caines' Rep. 56.
    Tan Wyck moved to stay proceedings on a bail bond, under the following circumstances :
    The writ in the original suit was sued out in last August vacation, returnable in the November following. Special bail was filed on the ninth of December then next, but notice of it not given. On the 5th of May after, a cap. ad resp. was issued on the bail bond returnable in the then May term, on which the bail in the principal suit were taken. On this, notice of bail having been filed was given-with an offer of justification, which the plaintiff, being satisfied of their competence, waived. On this, the defendant, on the 6th of June, served the plaintiff with an order from the recorder of New York, to show cause before him why the proceedings on the bail bond should not be staid, and upon service, the plaintiff, without acting upon the order, agreed to stay proceedings till the decision of this court could be had.

      Williams, contra,
    insisted the application ought to have been made the last term, and not to the recorder. There was therefore a laches not accounted for.

      Van Wyclc, in reply,
    cited Oole. Cas. Prac. 57, 58 • Berry ads. Mies; Cromp. 75; High, on Bail, 54, 55.
   Per Curiam.

The case in Coleman is decisive. Let all proceedings on the bail bond be staid on payment of costs.


text:
    The People, on the complaint of Bennett, against King.
    If the proceedings for a forcible entry and detainer do not state the complaint to have been seised, it is fatal; so also, ut sesnb., if the bill be found by 24 grand jurors, or if the defendant be not permitted to traverse on his voluntary appearance.
    On certiorari, upon a conviction for a forcible entry and detainer.

      Gold, for the defendant,
    moved to' quash the conviction, and that a re-restitution issue,.for the following reasons: 1. For want of certainty in the description of the premises, they being described only as “ tenements and improvements,” without naming the county in which situated ; 2. Twenty-four persons were sworn upon the grand *jury who found the bill, so that more than twelve were necessary to the finding; 8. Because a challenge to a grand juror for having given a bond of indemnity (see Trelawney v. Thomas, 1 H. Bl. 208,) to the complainant, was overruled; 4. Because the defendant was .not brought into court before restitution awarded, to traverse the indictment; 5. Because when the defendant voluntarily appeared and oifered to traverse, he was' refused; 6. Because it is not alleged that the complainant was seised or possessed of the premises.

      Henry, contra,
    opposed the issuing 4 writ of re-restitution, because the term under which the defendant claimed had expired. '
   Kent, Ch. J.

The inquisition and proceedings below must be quashed, and re-restitution be awarded. The last objection is fatal, within the decisions of this court, in Beebee ads. The People, in January term, 1802, and Shaw ads. The People, August, 1803. Vol. 1. p. 125. I think the second and fifth also are equally fatal. As to the objection that the term is expired, and neither party have title, we cannot inquire into, and decide by affidavit in this way on the title or rights of the parties: the complainant below has nothing to do with that. He must .give up the possession irregularly obtained, put the defendant in statu qno, and then proceed legally to the question of title.

Conviction quashed.

Re-restitution awarded.

        People v. Shaw, 1 Cai. R. 125; see Rev. Stat. vol. 2, p. 508, s. 3, 6, 11; People v. Van Nostrand, 9 Wend. 52; see 4 Black. Com. 148; 1 Hawk. 274; 11 J. R. 504; 9 Wend. 51; 11 Wend. 151; 13 J. R. 349,; 1 Hall, 240. As to complaint, &c., see 2 R. S. p. 508, § 3, and suhsequent’sections; 10 J. R. 304; 13 J. R. 158. .


text:
    Mann against Marsh.
    If a debtor do not direct the application of a payment, his creditor may place it to what account he pleases.
    The court ruled that where a person pays money to a creditor, who has demands against him on two accounts, the creditor may place it to which he pleases, unless the debtor direct its application.

       See decisions relative to the application of money paid on account, Clark v. Burdett, 2 Hall, 191; Hall v. Constant, 2 Hall, 185; doctrine considered and discussed In case of Stone v. Seymour, 15 Wend. 19; Paterson v. Sale, 9 Cow. 747; Seymour v. Van Slyck, in Error, 19 Wend. 19; 3 Sumn. R. 98; 9 Wheat. 120; Allen v. Culver, 3 Denio, 284; Cowperthwaits v. Sheffield, 1 Sandf. Rep. 416; Niagara Bank v. Roosevelt, 9 Cow. 409; Baker v. Stackpoole, 9 Cow. 420; Van Pansselear Ex. v. Roberts, 5 Denio, 410; Pattison v. Hull, 9 Cow. 141; People v. County of New York, 5 Cow. 331; Roberts v. Garnie, 3 Cai. R. 14.


author: Per Ouríam.

text:
    Marscroft against Butler.
    If a prisoner be not brought up for his discharge under the insolvent law till the. last day of rlie term, and his creditor then oppose him on an affidavit of showing probable cause of impeaching the fairness of his inventory, the' court will remand to the next term.
    The defendant Rad applied for Lis discharge, under the insolvent act, on the first Thursday in term, but no mea sures had been taken to bring him up till the last day. The plaintiff then moved for time to oppose, on an affidavit, stating that notice of the application had come to him only on the second day of the then August term. That one Benjamin Prescott, of Massachusetts, a material ^witness to prove the falsity of the defendant’s inventory, and that he expected to • be able to obtain his testimony.
   Per Ouríam.

The prisoner must be remanded till the first day of the next term. We do this with regret, but the act is -too imperative to admit of discretion. As the defendant did not apply to be brought up at an earlier day, it is in some degree his own laches. Let him be brought up next term.


author: Kent, Oh. J.

text:
    The People against Barrett and Ward.
    That a judge has, in a criminal case, ordered a juror to he. withdrawn, is no cause for arresting the judgment on a subsequent trial for the samo offence.
    At the last circuit court, held at Salem, in the county of Washington, the defendants had been indicted, • arraigned, and had pleaded not guilty. After this the District-Attorney moved the court for leave to withdraw a juror, which was granted without the defendant’s consent. On a subsequent day they were again brought up, on the same indictment, and found guilty.
    Russel, on these facts, submitted whether the court can, after a prisoner has been arraigned and pleaded, order a juror to be withdrawn without his consent; and whether if he be s.o withdrawn, the defendant cannot avail himself of that circumstance in arrest of judgment.
   Kent, Oh. J.

This point underwent a very full discus sion in the case of Olcott; it was then determined that a judge's having ordered a juror to be withdrawn is no cause for arresting the judgment on a subsequent trial for the same offence.

         See post, 304, S. C., and the decision here overruled.


text:
    M’Cabe against M’Kay.
    Frivolous demurrer. Enumerated motion. Practice.
   It was ruled in this case, that an application for judgment on a frivolous demurrer, is an enumerated motion, and it was also, at another day, in this same suit determined, that if the notice of motion specify it will be grounded on the frivolousness of the demurrer, it will give the applicant a priority before other enumerated causes, and entitle him to his judgment on reading the affidavit of service, and of general notice for argument, if no opposition be made.

       See 2 Cai. Rep. 66; Lipe v. Becker, 1 Denio, 568.


text:
    *Tremper against Wright, who is impleaded with P. Turner, administrator of E. Turner, deceased.
    If an administrator, by his plea in this court, admit assets, on which thera is a regular judgment entered, it will not be set aside, to let in a plea of a judgment confessed in the common pleas, after filing the plea in this; not even though the judgment taken on the assets admitted, be for a few cents more than in strictness appear to have been acknowledged.
    Assumpsit against administrators.

      Slosson moved to set aside the judgment obtained in this cause for irregularity, and that the defendants be let in to plead a judgment recovered in the common pleas.
    The affidavit on which the application was founded, set forth, that on the 2d of November, 1802, a plea was filed in this cause, by the defendant Wright, stating a debt by .specialty, for 14 dollars and 75 cents due from the intestate to one Cornelius Cole, with interest from the 14th June, 1800, remaining unsatisfied, and plene administravit, except as to 702 dollars and 80 cents, and the aforesaid debt: that on this plea the plaintiff, on or about the 1st of February, 1803, entered in the rule book of the clerk of this court, in Albany, the following rule: “The defendant, James Wright, having by his plea acknowledged assets unadministered in his hands, to the amount of seven hundred and two dollars eighty-one cents, ordered judgment therefor on motion of Mr. Gardinier, and also, on like motion, interluctory judgment for the residue, and that a writ of inquiry issue.” That after filing the plea aforesaid, to wit, on the day of January, 1803, in January term of that year, a judgment for 157 dollars and 12 cents damages, and 15 dollars and 15 cents costs, was recovered against the deponent in the common pleas for the county of Ulster, in an action against him, as administrator aforesaid, on a simple contract debt due from his intestate, which judgment he did not know ought to have been pleaded to the above suit.
    The judgment, he said, as it appears on the record, is taken for twenty-eight cents too much, as it ought to have been entered on the assets, confessed for no more than the residue of these assets, after deducting the amount of the specialty and interest. This being a manifest irregularity, the court will, in favor of administrators who cannot otherwise be remunerated, set aside the proceedings, for the purpose of letting them in to plead a judgment to which they will otherwise be liable de bonis propriis.

    Gardinier, contra,
    made a preliminary objection to the affidavit *of service of notice; which stated it to have been on a clerk of his in his office; he insisted that the name of the clerk ought to have been stated, that he might have known whether it was his clerk or not.
   Per Curiam.

It is sworn that the service is on your clerk, which is fully sufficient.

Gardinier then read an affidavit, by which it appeared that the capias in this suit issued on the 15th June, 1802, and was returned, in the July term following, cepi corpust as to the defendant "Wright. That the capias in the common pleas, though returnable in-July, 1802, was not filed until the 10th of November following. That the declaration in this court was filed on or about the 8 th of September, 1802, that in the common pl'pas'not till the 26th of November, and that the judgment in the common pleas was by confession; that a writ of inquiry in the present cause had been duly executed ; the damage assessed to 1,075 dollars, and a record of the judgment thereon duly signed and filed on the 23d of November last. From this, he argued, the presumption was, that the suit had been first commenced, though if otherwise, which it might have been, the defendant ought to have shown it. But after-filing a plea on the 2d of November, admitting assets, he ought not to be permitted, on the 7th of January following, to suffer a judgment by confession, on a demand of no higher nature than that in which he had acknowledged assets. Independent of this, the application was too late. The twenty-eight cents were among the minimis, of which non curat lex. The judgment was regular for the assets confessed, and for the residue, guando acciderint.

Per Curiam. The proceedings on the part of the plaintiff have been perfectly regular, and therefore no cause shown for the interference of the court. The interlocutory judgment was necessary to liquidate his demand ; it after-wards becomes peremptory for the sum confessed, and for assets in futuro as to the residue.

Motion denied.


author: *Per Curiam.

text:
    Cross, Jun. against Hobson.
    If a defendant do not plead his discharge under the insolvent law, this conn will not afford relief on a summary application.
    This was an application to be discharged out of custody the defendant having been exonerated from" the demand under the insolvent law.
   *Per Curiam.

The defendant can take nothing by his motion. In the cause of Caldwell v. Graham, decided in January term, 1803, we determined we would not help an insolvent who omitted to plead his discharge as he might have done.

Motion denied.

       See case of Shaw v. Wilmerden, 2 Cai. R. 38; Van Valkenbergh v. Dederick, 1 J. C 133; see Billings v. Skutt, 1 J. C. 105.


text:
    Van Dyck, q. t., against Van Beuren and Vosburgh.
    When the court is divided, judgment must go according to the verdict. But if an intimation for a special verdict has been given, and the bench be afterwards full, a second argument will be ordered, if the special verdict be not agreed to.
    A CASE had been made in this cause for the opinion of the court, but they being divided, no decision was made, and the plaintiff, having entered up judgment on his verdict, sued out an execution.

      Williams moved to set aside this execution, on an affidavit stating that the application to this court was undetermined.

      Van Ness, contra,
    read an affidavit, stating the division of the court, and that by the rules of practice he was there fore entitled to the benefits of his verdict.
   Per Curiam.

We admit the-general position, but as two of the judges whq sat when this case was argued were disposed to recommend a special verdict, unless the parties now agree to one, we shall order a stay of proceedings till a further argument.

1ST. B. — It was mentioned to the court, that a case was now pending in error, between the same parties, in which the very point now in question would receive a determination.


text:
    Gardinier, Gentleman, one, &c. against Buel.
    A notice to declare, plead, &c., need not specify “or that the default wlh bs entered,” but may say generally “ or judgment."
    This was an application to set aside the judgment of non-pros entered in this suit, on an affidavit by the plaintiff, stating, that on the 6th of J une last, he was served with a copy of a bill of costs and notice of taxation, from whence he concluded a judgment of nonpros had been entered against him, but if any had been so entered it was without notice of any intended motion for that purpose, except what was derived from a notice served on him on the 24th of January last, of the entry of a rule in the common rule book of the clerk of this court, requiring him to declare before the end of February term then next, “ or that judgment of nonpros would be entered,”

      * Williams, on behalf of the plaintiff.
    The rule in this-cause ought to have been “ that the plaintiff declare or his default be entered,” and on such default, judgment of nonpros would have been regular. Whenever an act is to be done by one party, on non-performance of which he will be in default, and the other party entitled to an advantage in consequence of the omission, the rule ought to express that “ unless, &c. his default will be entered.” On such a rule the next step is the entry of the default; and then follows the entry of the judgment; for the plaintiff is not bcur.d to declare till called on regularly. 3 Burr. 1452. Cole. das. Prac. 47, 48.

      Woodworth (Attorney-Gen eral)
    read an affidavit of the defendant’s attorney, contra, by which it appeared that in July, 1803, he sent by the mail a notice of his being retained in that cause; that notice of a declaration being filed had never been given; that on the 10th of December following, a rule for judgment of nonpros was entered in the common rule book, of which notice was given on the 24th of January last; that of this notice an affidavit was made and filed in the clerk’s office on the 11th of May last, on which the plaintiff’s default was entered, and four days after, judgment of nonpros entered. This, Mr. Attorney contended, was the regular practice, and that the default, being only a consequence and legal effect of the neglect of the party, needed not to be mentioned. Inserting it as a mere matter of surplusage not required by the rules of this court. Besides the want of notice of filing a declaration is decisive against the application according to the determinations- of this court.

         West v. Radford. Notice to plead need not be given within the same time that a declaration must be filed.

         Oudenarde v. Van Bergen, that a default must be entered to warrant an inteilocutory judgment.

   Per Curiam.

The defendant is regular in every respect. The plaintiff can take nothing by his motion.

Motion denied


text:
    Bodwell against Willcox.
    Notion oí motion need not specify the place where to be brought on.
    In this caso an objection was taken that the notice of motion did not specify “ at the city-hall of the city of Albany,” but was only for the first day of the term, without designating the place.
   Per Ouriam.

The notice is sufficient. Every one knows where the different terms are held, and the party himself evinces that, by coming here to oppose it.


text:
    *Cole against Grant. The Same against King. Cole et Ux. against Grant and King. Cole against Grant and King.
    Where there are joint and several suits against the same defendants, and costs allowed them in some, but damages assessed against one, in another, the costs allowed them in all may be set off against the damages recovered, but not against the costs in that suit, the plaintiff’s attorney having a lien on them.
    Costs had been allowed to the defendants in the three first of these causes, to 26 dollars and 58 cents, and in the last also, to Gideon King, to 14 dollars and 84 cents, but in the last cause damages had been assessed against Grant to 20 dollars besides costs, an l Cole was unable to pay the costs taxed against him.

      Russel,

    on an affidavit disclosing the above facts, moved to set off the costs allowed the defendants against the damages and costs recovered by the plaintiffs in the last.
   Per Curiam.

Let the defendants have leave to set off their costs in the three first causes against 20 dollars damages recovered by the plaintiff in the last. The costs of the plaintiff’s attorney in the last suit not to be included in the set-off, as he has a lien for them.

        Spencer v. White, April, 1799; 2 Bla. Rep. 867, 869, 871; 4 D. & E. 123; see also Brown v. Cuming, ante, 34, n. (a,) and Schemerhorn v. Schemerhorn, 3 Caines’ Rep. 190, n. (a.)


text:
    Jackson, on the demise of Spilsbury and others, against Watson.
    The claim for the value of improvements under the act of the 5th of April, 1803, will depend on the report of the circuit judgo, to whom title must bo shown. An offer to pay the appraised value made by the plaintiff beforo suit brought, will entitle him to costs.
    This was an application to be paid for the value of improvements pursuant to the provisions of the act of the 5th of April, 1803, entitled, “ An act grafting relief to certain persons claiming “ title to lands in the counties of Gayugu and Onondaga;” that till the improvements were paid for, execution on the writ of possession might be staid, and that the judgment on the verdict obtained might be entered without any costs of increase.

      W. Woods, in support of the motion, read an affidavit, stating that the patent for the lands, to recover which the action was brought, was in the name of Jacob Spilsbury, who died previous to the 27th of March, 1803. That the defendant, in 1797, settled on the premises under a Iona fide purchase, for the consideration of 887 dollars and 50 cents, and was in possession. That the improvements had not been appraised, nor had the value of them been tendered or paid.
    Hildreth, contra,
    read an affidavit, mentioning that previous *to bringing the suit, an offer was made to pay the value of the improvements. He urged also, that nothing was disclosed to the court evincing a claim in fee, or that the estate of the defendant was such as would, according to the act, entitle him to the value of his improvemerits. But admitting it was, it ought to be made appear in a legal manner. This could not be by. the mere affidavit of the party. It must be proved by the same evidence as titles are, in other cases, substantiated. That this not being done, the defendant had not made out any right to what he claimed.

      W. Woods, in reply.
    The acts points out no particular mode, and this has been adopted.
   Per Curiam.

Let the plaintiff have leave to perfect his judgment with costs to be taxed, and let all other proceedings be staid, that the defendant may have it in his power to apply to the chancellor, under the second section of the act, as he is entitled to the benefit of its provisions. See Jackson v. Bush, 3 Johns. Rep. 512, and Jackson v. Seaman, ibid. 495. As, however, the plaintiff, previous to the commencement of his action, offered-to'pay the value now demanded, we think him entitled to his costs, and we wish it to be understood, that in future, the claims of defendants to the value of their improvements under this act, will depend upon the report of the circuit'judge


author: "Per Curiam.

text:
    The Overseers of the town of Germantown, in Columbia County, Appellants, against The Overseers of the poor of the town of Livingston, Respondents.

    Testimony of the declarations of a person as to owning a slave, cannot ba received to render a parish chargeable when the person himself might have been produced.
    This was a case from the Columbia sessions, submitted by consent without argument. The facts were these: Two. justices, on complaint of the overseers of Germantown, had ordered Sarah Bridgend, a negro woman 80 years of age, to be removed to the town of Livingsten, and adjudged her settlement to be there. From this order there was an appeal to the sessions, who received testimony of the declarations of one Philip Rockefellow, that she was formerly his slave, bought in the town of Livingston, and manumitted by him about 16 years ago, but they refused to admit Rockefellow himself, adjudged the negro chargeable to Germantown, and ordered her to be maintained there, reversing the order of the justices.
   "Per Curiam.

The order of the sessions reversing the order of the justices must be reversed. The admission of the declarations of Philip Rockefellow, after he owned the slave, is too loose and uncertain to charge the town of Germantown, It would be of a very dangerous tendency. Better proof of the fact could be had. Was Rockefellow then in possession of the woman, it might be otherwise. The sayings of one inhabitant, to charge a whole town, might be mischievous, and would be very liable to abuse, especially if better testimony cau be had.

Order of sessions reversed.


author: Per Gu/dam.

text:
    Van Antwerp against R. & J. Ingersoll.
    If on a plea- of set-off in the common pleas the sum for which judgment U rendered be under 25 dollars, the plaintiff must pay costs to the defendant.
    In actions in the common pleas, on demands not exceeding 200 dollars, to he certified on the record by the judge if the plaintiff recover under 25 dollars, he pays costs.
    This was a question of costs by consent submitted to tbe court. Tbe facts were, that in an action in tbe common pleas, on a bill penal for 60 dollars, to secure two instal-ments, tbe defendant pleaded non est factum, with notice of setting off a receipt, wbicb was allowed as to one instalment, and left a balance under 25 dollars due to tbe plaintiff.
    Tbe point was, wbetber the plaintiff should pay costs to tbe defendant.
   Per Gu/dam.

Tbe plaintiff must pay costs. 1 Rev. Laws, 530. This was a plea under tbe act authorizing set-offs. 1 Rev. Laws, 347.' Tbe statute is positive and peremptory that judgment must be for the balance only. The penalty, therefore, is immaterial on tbis point, for tbe judgment is tbe test by wbicb tbe costs are to be determined.


text:
    Strowell against Vrooman.
    If there be a Us pendens in tho common pleas, in which there has been m decision, this court will not take up the point on a ease made and submitted by consent.
    In this action, wbicb was still pending in tbe common pleas for Saratoga, a motion had been made in tbe court below in arrest of judgment, on wbicb no decision bad been pronounced. The counsel, however, on both sides, agreed to make a ease of it, and submit the matter to the determination of this court.
   Per Curiam.

This practice is increasing, and becoming grievous. It is time it should be arrested. We ought not to decide cases, unless there be a lis pendens here. We cannot otherwise enforce our decision, and the Very point may come up again. We therefore must refuse taking up the case.

       Though there be a Ms pendens, a judge at nisi prius is authorized in refusing to try it, if the issue be such as a court of law ought not to entertain. Therefore, Lord Loughborough would not permit a cause to be brought on, where the matter in dispute was the number of chances in playing an illegal game. Brown v. Leeson, 2 H. Bl. 43. And Lord Ellenborough followed hia example, where the cause of action was a wager on an abstract point of practice. Henkin v. Gerss, 2 Camp. 408; 12 East, 247, S. C, an action not Deing maintainable on a wager on a point of law in'which the parties have not any interest.


author: SPENCER, J.

text:
    *Schermerhorn, Mason and Bishop against Tripp, Jun.
    If a tavern he kept in the house of a justice, and for his benefit, though the .license be in the name of another, who also lives in the house, he is within the 20 th section of the 10Z. act, and liable to trespass for issuing execution, having no jurisdiction. Plaintiff also before him, and constable,executing the writ, are equally liable if they join in pleading general issue. On a joint plea in trespass, no separate justification can be set up.
    Error from the common pleas in Rensselaer county. The suit below was trespass de■ bonis , asportaiis, against a justice of the peace, a constable, and a plaintiff, in a suit before the justice under the 101. act, for taking the goods of the defendant, in an execution on a judgment rendered by the justice. The defendants all joined in a plea of not guilty.
    The evidence adduced was, that the justice lived in a tavern where he officiated as the tavernkeeper, made out the bills, and received payment for them, but that the justice did bis business in a small out-room, and the license for the house was taken out in the name of the justice’s son. This, however, it appeared from the justice’s own declarations, was done to avoid the operation of the 20th section of the act. 1 Rev. Laws, 502. On this the defendants below demurred to the evidence. The court having given judgment for the plaintiffs, the cause came up on a writ of error, in which the general errors were assigned.

    Foote, for the plaintiffs in error,
    submitted the case on the facts presented by the record.

      Woodworth, contra,
    relied on the words of the act, and the testimony being such as to bring the justice clearly within them. If so, as they all joined in the same plea, they are all equally responsible. For where, in trespass against several,- all unite in a plea of not guilty, the separate justification which one might have pleaded, is gone! 2 Wils. 884. 2 Stra. 993'.

       See Sess. L. 24, § 165, e. 20. Low v. Rice, 8 J. R. 409; Clayton v Per Dun, 13 J. R. 218.

       The reason is because the plea being entire, cannot be good in part and bad in part, an entire plea not being divisible; consequently, if the matter jointly pleaded be insufficient as to one of the parties, it is so' in iota Earl of Manchester v. Vale, 1 Sauud. 28, n. (2,) and the eases there.

   SPENCER, J.

The same point has been decided in this court in the case of Percival v. Jones, which was an action Drought by a resident freeholder, under the 3d section, (1 Rev. Laws, 492,) against a justice, for apprehending him on a warrant.

Woodworth Was stopped by the court.

Per Curiam. From the evidence below it was conclusively shown, that the justice (Schermerhorn) was, in fact, a keeper of a tavern, or lived in one. If so, he had nc jurisdiction to try the cause, (1 Rev. Laws, 502, s. 20,) and as the constable (Mason) joined with him and the plaintiff in pleading the general issue, they are all equally trespassers. Had the constable *pleaded separately, he would probably have been excused ; but he has now involved himself with the others, and we cannot separate their fates.

.Judgment of the common pleas reversed.


author:
      Per Guriam.
     Livingston, J.

text:
    Gould ads. Spencer. The Same ads. Tillotson. Ward ads. Spencer. The Same ads. Tillotson.
    If the names of two attorneys appear on the writ, subsequent proceedings may be in the name of one alone. Interlocutory judgment may be entered at any day after default, and before writ of inquiry executed.
    In these actions, which were for libellous publications on the plaintiffs, in a paper entitled “ The Corrector,” judgments had been entered on default, and writs of inquiry executed.

      James S. Smith, moved to set aside the defaults,
    and inquisition of damages on an affidavit made by himself, stating, that by the writs sued out in these causes, Woodworth and Osborn appear to have been the attorneys on record for the plaintiffs, but that the declarations were endorsed with the name of Osborn only. That the rules also, which had been entered in these causes, were signed by the name of Osborn only, and this, without any order of court obtained for that purpose ; and that the interlocutory judgments had been entered only four days before execution of the writs of inquiry.

      Woodworth, (Atlorney-Gfeneral,) contra,
    insisted, that when a plaintiff nominates two or three attorneys, whose names appear on the writ, any one may alone sign and endorse all proceedings in the suit. Otherwise, in case of death, a new attorney must be appointed. But in the present case it was known, that after suing out the writs in these causes, he was nominated to the office he held, and therefore could not act as an attorney where the people are not concerned. On the last point, if the notices be regular, the entry of the judgment may be any time before inquiry executed.

       A party cannot plead in the name of a firm. Per Lord Ellenborough, in Bunn v. Guy, 4 East, 195.

   Per Guriam.

If the proceedings were not correct by being in the name of one attorney only, yet the defendants show no excuse for not applying at an earlier day of this term. This is fatal to their motion. Besides, it is sufficient if one of the attorneys appearing on the writ, continue to endorse and sign the proceedings. It must be presumed the defendants *were not misled, but knew they were the parties meant by the- original suit. As to the second objection, there is no force in it. The settled practice is to allow of notice of inquiry being given at any time after default, and it is enough if the interlocutory judgment be entered at any day before execution of the writ of inquiry.

Livingston, J.

I concur in the decision of the court on the question in this case. But I do not say, if two persona be attorneys on the writ, one may go on with the proceedings in his name singly. Were one to die, then the right to carry on the suit would survive. On the points now .before us, I consider the appointment of Mr. Woodworth ■ to the place of Attorney-General, as a species of civil ■death. Therefore, on the present occasion, I agree with ■the opinions of my brethren. The defendants can take nothing by their motion.

Motion refused.


author:
      Per Omiam.
     Kent, Ch. J.

text:
    Schoonmaker against Trans.
    If a late decision be made of which counsel is not apprised, the court will in some cases allow of its being urged as an excuse for not making an earlier application. Under special circumstances a justice’s return may be amended after errors assigned.
    This was an application for a rule on a justice of the peace to amend his return, by inserting the evidence he overruled in a cause before him.

      Smith read an affidavit showing that the cause had been brought up by certiorari, errors assigned and joinder. He sontended, therefore, the application was too late.
    Jones, contra.
    If we have been too late, it arises from a mistake of a decision of the last term, in which we thought the court had ruled they would order a return to be amended by -setting forth the evidence overruled, when that evidence was the only reason on which the judgment could be impeached. No report is as yet furnished of this adjudication, and the knowledge we have of it is hearsay.

         The practice of granting rules on justices to return the evidence has, since the provisions by statute for that purpose, (Dodge v. Coddington, 3 Johns. Rep. 141,) nearly superseded the amending the return. The rule seems to be, that wherever the testimony might influence the decision, the court will order an amendment, or that it he returned; as by inserting evidence, which had been rejected of a former trial for the same cause of action, Felter v. Mulliner, post, 384. But where the fact if returned would not vary the judgment of the court, it will not be ordered. Keeler v. Adams, 3 Caines’ Rep. 34. If the justice in making his return has been imposed on by the attorney, leave will be given, upon notice of the motion and affidavit of the fact, to amend according to the truth of the case; (Simpson v. Carter, 5 Johns. Rep. 350,) but the court will not order a justice to amend his return contrary to what he has sworn; (Keeler v. Adams, ubi sup.) nor, after a precise and specific return to all the facts in the affidavit on which the certiorari was granted, will they order him to amend his return on facts in a subsequent and supplementary affidavit; (Butler v. M‘Intyre, 2 Johns. Rep. 182,) nor will they tako notice of facts returned from hearsay, as the justice must return from his own knowledge; (Mosely v. Landon, ibid. 193,) therefore, error cannot be assigned on such a part of a return. Id. ibid. See Durkee v. Bracket, 1 Caines’ Rep. 501.
      All affidavits to amend a return as to matters of fact, ought to state then^ that the court may judge of their materiality. Leonard v. Sunderlin, 3 Caines’ Rep. 136. As to misprisions, it seems never too late to apply for an amendment. It will be granted after argument on the errors assigned, and tlie judgment of the court pronounced; (Day v. Wilber, post, 375,) so if in the errors assigned after joinder; (Moore v. Bacon, 3 Caines’ Rep. 83,) and after a rule to assign errors, a mis-statement of the form of the action may he amended by the affidavit on which the certiorari was granted. Knapp v. Palmer, 1 Caines’ Rep. 486.

   Per Omiam.

We presume the counsel ignorant of the decisions of May and February terms last past, by which we allowed rules on justices, ordering them to return evidence in special cases. This therefore, is a sufficient excuse for the court to interfere at this late stage of the causo.

Kent, Ch. J.

I dissent from this opinion. The counsel are bound to know the law at their peril. The court did not make any new rule, but only applied principles ai-read}'- known to new cases. It is a good rule, and ought to be enforced, *that after a party assigns errors, he waives all objections to the sufficiency of the return.

Motion granted.


text:
    Dennis and Williams against Ludlow.
    Whether a vessel which moves down a river on the route in a voyage insured has actually sailed on it, is a fact depending on circumstances and the quo animo. If she has not taken her captain on hoard, it is á presumption that she has not commenced her voyage, though all her papers, clearance and lading bo taken in. The nautical day .begins at twelvo o’clock at noon. On a warranty depending on a matter of fact, the jury are the proper judges.
    This was an action on a policy of insurance on the body of the brig Brothers, Brown, master, valued at 4,500 dollars, at and from Savannah, in Georgia, to Martinique. In the margin of the policy was written “ sailed early in October at the bottom of the instrument were inserted the following words: “A brigantine Brothers, Captain Parsons, it is said, has been spoken with at sea with a sick crew, warranted not to be the brig Brothers insured by this policy.”
    At the trial, the subscription of tbe policy, the interest, abandonment, a sailing on the voyage, and that the vessel had never been since heard of, were admitted. That Williams, one of the plaintiffs, was then at Savannah, and Dennis, the other, in New York, and continued there till the 7th of November, when the policy was effected, were facts acknowledged to be true.
    The plaintiff also admitted that the bills of lading for the cargo were dated on the 14th of September, and the clearance on the 15th.
    By the testimony adduced under a commission issued to Savannah, it appeared that the vessel, about tbe date of her clearance, dropt down from tbe wharf with a pilot on board, to a place called Pive Fathom Hole, about three miles from the town of Savannah, That the crew were then all healthy and adequate to the ship’s duty. That from’thence she went about eleven miles further down the river to a place called Cockspur. That, both at Five Fa-tbom Hole and Coekspur, vessels of heavy burden finish their lading, and at the latter often wait for orders and overhaul their rigging. That the brig in question lay there sixteen days, on account of the sickness of the master, who on the evening of the 30th went on board, and sailed on the first or second day of October, on the voyage insured. That, in the opinion of one of the persons examined, Cock spur has always been considered as in the port of Savannah, and he ‘^should think a vessel not out of the port of New York, till after she had left Sandy Hook.
    The defendant on his part read in evidence a letter from the captain to the plaintiff Williams, dated the 30th of September, on board the brig Brothers. This epistle commences with these words: “ At last, my dear friend, Mr. Williams, I am at sea, with all hands sick except two, and in a few days expect to get my men once more on their legs ; they are all better to-day. The pilot says he shall charge six dollars extra for dropping to Five Fathom Hole, which I think unjust.” On the trial the defendant, after due notice, called on the plaintiffs to show an account of pilotage against the Brothers which had been presented to the underwriters as one of the documents in proof of loss. The plaintiffs alleged it had not been returned, but the judge admitted evidence of its contents to be given, on proof being made of its having been submitted to the insurers, though no testimony was adduced to show by whom it was written. The heading of this bill was thus : “ James Brown’s bill of pilotage of brig Brothers. Took charge the 13th September; detention on board from the 13th to the 30th September.

      dols. cts.

      “ At two dollars per day, - - 32 00
    Vessel drawing 11 1-2 feet water, - 16 50 .
    Dropping to Five Fathom Hole,” - 6 00
    54 50

      The judge charged that if the vessel had not a competent crew when she sailed on the voyage insured, the un* derwriters were not liable. That the captain’s letter, was, in his opinion, more to be relied on than the testimony under the commission taken so long after the occurrence of the facts it stated. That in his opinion, the vessel could be considered, within the intention of the parties, as sailing on the voyage insured only from the time of her final putting to sea from Cockspur, and what that time was, was a matter of fact to be determined by the weight of testimony, of which they were the competent judges.
    Upon this direction, the jury found for the plaintiffs, and the defendant moved to set aside that verdict.

      * Pendleton, for the defendant.
    The learned judge before whom the cause was tried, misdirected the jury as to the compliance with the warranty, respecting .the sailing of the Brothers; because, when she broke ground with her clearance, cargo and papers on board in the river, she commenced her voyage, and the period of her departure must be dated from thence. If this be not so, ^he in fact went to sea on the 30th of September. Thus says the captain’s letter ; thus the calculation from the bill for pilotage': 16 days from the 13th of September make exactly the time, allowing one day for going to Five Fathom Hole. This, as evidence adduced by themselves, in support of their claim, is c.onclusive. Secondly, there was an undue concealment in not communicating that the vessel was detained two weeks in the river, this being proved to be material, from the health of the erew of another brig of the same name having been made a subject of warranty. The warranty of the vessel’s sailing has not been complied with, whether we consider her departure from Cockspur or the wharf the true criterion. That it was not in October is evident. The Captain says on the 30th of September he was at sea, and this letter in which he so says was shown to substantiate the loss. This, then, was previous to the day of departure warranted. ¥e contend that the judge was incorrect in his charge as to what shall be deemed the time at which a vessel sails on a voyage insured. When she has all her cargo and all papers on board, she must be considered as on her voyage from the time of making sail outwards. In Bond v. Nutt, (Cowp: 601,) on an exactly similar point, the whole question turned on whether the vessel was “ on her voyage homeward.” Cowp. 606. There, notwithstanding she, in strict terms, but not in law, deviated a little, for the purpose of meeting with convoy, the underwriter was liable, because her first departure was within the policy. So in Earl v. Harris, Doug. 343, 357; Thelluson v. Ferguson, ibid. 346, 361. On the point of concealment there can be very little doubt. The fact of all the hands being sick, but two, was known to Williams; the knowledge of one partner must, 'in this case, be the knowledge of both, especially a,s it was from such partner that the orders for insurance came, and the date *of Brown’s letter shows, that after its receipt, the instructions for insurance must have been forwarded.

      Biggs and Hoffman, contra.
    So far as matters of fact aro concerned, the jury have determined, and by their verdict it is evident they decided, that the vessel sailed according to the warranty, for that was the point submitted to them. It is a matter of fact as to time; that time they have found to be “ early in October.” If we suppose, what is very natural, the 13th to have been mistaken for the loth, which, as the clearance is on the 15th, is a reasonable supposition, then the 16 lay-days will bring it exactly to the time; 16 and 15 make 31; and on the 1st of October, the pilot swears sbe sailed. If tbe captain wrote his letter on tbe morning of the 1st of October, as all sailors, when at sea, compute by tbe nautical day, it would be tbe 30th of September. They begin their day at 12 o’clock at noon, con sequently, it does not determine till 12 o’clock in tbe next day, which is 12 hours after our day has run. The first day therefore, of any month is, to a sailor, 12 hours after that day has commenced, according to the reckoning of a landsman; because the computation at sea is from the meridian observation, from 12 to 12 in the day; but on shore, from 12 to 12 at night. It is manifest, then, the first part of a sailor’s day is one day behind that of the landsman ; and the last part of a sailor’s day is one day before it. This the jury took into consideration, and found accordingly. The true point of time at which we say a voyage commences, is that point at which a vessel weighs anchor, with the idea of no longer stopping. Everything else is in preparatorio. It is in evidence that the going to Cock-spur was for the health of the crew, and to wait for the captain. That vessels load there, and it is considered as in the port of Savannah. To say when a vessel, loaded and cleared, moves from a wharf is a commencement of a voyage, would be to say, if a vessel draws into the stream she is on her iter. A departure, with' intent to proceed, can never be asserted before the captain is on board. The case shows that did not happen till the 30th of September. In Park, 338, it is expressly said, that a vessel is not deemed to have left the port of London till she has quitted Gravesend, 20 miles below the place from whence she sails; because to that extent the port of London '^reaches. At Cockspur, therefore, the voyage commenced. The climate of Savannah, and the constant weakly state of the crews at the period when the Brothers sailed, is matter of general notoriety, and therefore need not be communicated. Garter v. Boehm,, 3 Burr. 1905; 1 Bl. Rep. 593, S. C. No concealment of a material fact can therefore be pretended ; and the testimony is con-elusive that the Brothers was a healthy vessel. The argument derived from the bill for pilotage can have no kind of weight; because the only reason why parol evidence of a paper can be given, is, that the party served with notice to produce it, has it in his possession. Nothing of that kind appears here. Besides, it was not evidence, nor would it have been so, had a regular protest been made.

      Harison, in reply.
    A protest is not repeived as evidence, because it is supposed the captain can be produced. It has been decided that a paper produced by a person, though not allowed to be evidence for him, was conclusive against him. If so, allowing the letter not to be regular testimony, it is by the act of the plaintiffs in bringing it forward made good. It is to be remembered, too, they were partners ; that the knowledge of the one was the knowledge of both, and on this account, as all that Williams knew is not pretended to have been communicated, there was an undue concealment. Whether the ship sailed pursuant' to the warranty, depends on what shall be the time and place of departing on her voyage. She must be considered as on her route from the instant when she begins to move towards her port of destination with an intent so to do. Otherwise, in a large port, such as New York, the policy, if it be from the port, will not attach during a period that may be as replete with danger, as any part of the voyage. This would expose all our commerce to be at the risk of the merchant, for the whole length of the ■ river, down to the Hook. The reason why a vessel sailing from the port of London may be said not to leave it till she passes Gravesend, is, that she there takes on board her last paper, the cocket. That reasoning will not apply here.

        Grozart v. Smith & Smith, sittings at New York, 17th November, 1802, before Livingston, J. The plaintiff had given in the amount of his freight claimed, to have his proportion of an average against the underwriters ascertained. On notice to produce it, and the adjustment, he did not comply. Parol evidence admitted, and the learned judge seemed to think him concluded by his statement.

   Kent, Ch. J.

delivered the opinion of the court. The defendant moves for a new trial on the following grounds:

1. Because the time of sailing was when the vessel broke ground at Savannah, with her clearance, - cargo, *and papers on board; 2. Because in fact, she went to sea on the 30th September; 3. Because tbe brig bad a, sick crew, and was detained in tbe rive? two weeks, and these facts were material and ought to have been disclosed, they showing that she was not competently equipped when she sailed. It is admitted as a fact ascertained since the trial, that William Brown, when he wrote the letter stated in the case, was part owner of the brig; and further, that the vessel cleared out at the customhouse at Savannah, for Martinique, on the 15th of September, 1799. 1. As to the inception of the voyage (see Henshaw v. Mar. Ins. Co., post, 274,) by sailing from the port of'Savannah, or from Oockspur; this will depend on the quo animo, or bona fide intent of the party. In the present case, it is very clear the voyage did not commence till the vessel left Oockspur. She left the port of Savannah for a temporary purpose, distinct from the object of the voyage, and the captain was left behind sick. I have no doubt that the sailing in the policy,' when accompanied with the explanatory facts, meant the going to sea from Oockspur. 2. With respect to the real truth of the case, whether the vessel did actually sail from Oockspur prior to the 1st day of October or not; and whether, when she sailed, she had a crew, in point of health, competent for the voyage, there is undoubtedly a contrariety of evidence, and a difficulty in arriving at a satisfactory conclusion. On the one side there is the written testimony of the captain’s letter, and the account of pilotage from James Brown (supposing it to be a true paper) in favor of the allegation, that the vessel must have sailed prior to the time stated in the warranty. On the other side, it was proved by the pilot who conducted the vessel to sea, and supported by the testimony of two other pilots who attended him, that the vessel did not leave Oockspur before the 1st of October. In deciding on the preponderance of these contradictory statements, I feel and acknowledge the force of the remark of Baron Gilbert, that written testimony must, from the nature of man, be of higher credit in the scale of probability; but on the other hand, there are just criticisms to be made respecting these papers, which must bring them down to a level, at least, with the underwritten documents. One is, that seamen reckon at sea from noon to noon, and would naturally date *a letter written at sea before 12 o’clock of the 1st of October, as of the preceding day; and another is, that the pilotage bill was probably mistaken as to figures, and that the 13th was intended for the 15th. If so, that account will correspond with the allegation that the vessel sailed on the 1st of October; and the reason to infer this is, from the facility with which such a mistake as to those figures may arise, and from the fact, that the bills of lading were not signed till the 14th, which would bring it a day after the sailing according to the one construction. The facts respecting the crew’s health seem to be involved in equal uncertainty, and as these were all questions of credibility and fact, proper for the decision of the jury, which were fairly submitted to them, and there is no reason to suppose any new light can be thrown on the subject, and the best informed man may, and would, probably, differ as to the facts, we are of opinion the verdict ought not to be disturbed. "We the more easily adopt this opinion when we consider that the principal point in the cause, whether the vessel did actually sail on the 30 th September, or 1st of October, is a matter of summun jus, and is to be reckoned among the apices of the law, rather than a part 'of the substantial merits of the case; therefore the defendant takes nothing by his motion.

New trial refused.


author: SPENCEB, J.

text:
    Roget against Merrit and Clapp.
    On an agreement to accept notes in payment of goods sold, if before delivery the notes turn out bad, a tender and refusal of them is mr payment, uniese the vendor agreed to run the risk of their being paid.
    This was an action for not delivering 220 barrels of flour, according to agreement. On the trial the following appeared to be the circumstances of the case:
    The plaintiff, through the intervention of a broker, known to be acting for him, about the 18th of January, 1800, asked the defendants if they would sell the above quantity of flour for the note of Joseph Lyon. They replied, they would give an answer if he would call the next day. He called, and produced a note of Lyon’s for two thousand two hundred and fifty dollars, drawn in favor of one John Palmer, and endorsed by him in blank. At the same time the agreement was made by the defendants *to sell, and a memorandum of the sale given to the broker, in this form:
    “ 220 barls. S. Flour,
    !< $10 — $2,200'-For Lyon’s note,
    “ 1 mo. 18th, 1800, “ Merritt & Clapp.” '
    "When this was done, it was understood that the difference between the note and the value of the flour should be paid by the defendants, but the note was not delivered over to them. Shortly after they met the broker, and asked him why he did not take away the flour; to which he replied, the plaintiff was not yet ready for it. In a few days the broker called on the defendants, and demanded the flour, tendering the note at the same time. The defendants, however, refused to deliver it, alleging, as a reason, that the maker had failed the day before. When the note was thus tendered, whether it was endorsed or not by the plaintiff, did not appear, though at the time of trial his name was on it, but in a great measure obliterated.
    The declaration contained three counts. The first, on a special agreement, made on the 18th of January, 1800, to deliver 220 barrels of superfine flour, at 10 dollars per barrel, to be paid for in a note of one Joseph Lyon, bearing date the 7th of November, 1799, payable five months after date, with an averment of a tender and refusal, on the 30th of January, 1800. The. second count, on a sale of 220 barrels, &e. to be paid for in a similar' note, in consideration of which sale, and a promise of the plaintiff to pay in such a note, the defendants promised to deliver, with an averment of a tender and refusal. The third count on a sale by the defendants to the plaintiff of 220 barrels of superfine flour, at ten dollars per barrel, with an averment of an .offer to pay, demand and refusal.
    The general issue being pleaded to all the counts, a verdict was taken for the plaintiff by consent, subject to the opinion of the court, whether it should stand or a nonsuit be entered.
    Hamilton, for the plaintiff.
    Whenever a specific thing is to be exchanged for another thing, after the agreement is completed, the article, that is, as it were, the price of the purchase, is at the risk of the vendor, and the goods sold at that of the vendee. This is a principle both in *the Roman and our law. Just. lib. 3, tit. 24, s. 3, fob 78; 2 Bl. Comm. 446; 449. Exchange is where one thing is to be commuted for another, and such was the case here: a note was to be given for the flour, not money to be paid; therefore, the loss from the note's proving bad to be borne by the defendants.

      Piker and Harison, contra.
    The principles relied on do not apply. The plaintiff cannot recover on either of his counts. The first and second are not maintained by the evidence. The first is on an agreement to pay a certain specific note of the precise sum; the written agreement or memorandum refers to no such note. The second can as little be maintained; it states the sale to be for a similar note: the evidence as, that it was to be paid for in one of 2,250 dollars, and the difference to be paid by the defendants. In Penng v. Porter, 2 East, 2, the court of king’s bench held that a contract to deliver 40 or 50 bushels of wheat, at the option of the plaintiff, must be declared on in the alternative, and not as an absolute contract, though the plaintiff had elected to deliver only forty. That case, and those to which it refers, establish the evidence in this to be fatally variant. On the third count there can be no recovery, for there was not a particle of evidence in its support. Besides these objections, the contract is void under the statute of frauds, for the memorandum or agreement was signed only by one party, and therefore, though obligatory on them, could not be enforced against the plaintiffs: this renders the whole a mere nudum pactum. The cases on stock contracts evince this; for though one may sign, obliging himself to sell, that, without a counter instrument binding the other to accept, creates no bargain. In addition to the authority from East, we rely on the anonymous case from 1 Lord Kaym. 735, and the references there made.
    Hamilton, in reply.
    The only object of the statute of frauds was to afford written evidence of a contract. Both from the words and the principle of the act, it is unnecessary both parties should execute. If one sign and deliverer over, it is enough ; especially when the person to part with the principal thing, the subject matter of sale, is he who signs. It has been decided, that the mentioning in a letter that a party had agreed to do a thing, is a '^sufficient signing within the statute, though there was no specification of what was to be done. Yin. Abr. tit. Agreement. Therefore, any note or memorandum is sufficient to take it out of the statute. A signature alone will Bot, without consideration, create a contract, it is true; but if a contract is disclosed by the signature, then the consideration may be shown — here it appears. Though a special agreement must be strictly proved, yet that strictness is not a literal strictness, but only as to essential circumstances.

        Queen, whether the delivery would have altered the case, without an actual agreement to take the chance of payment. See 7 D. & E. 65, the words of Lord Kenyon.

         Where a sale of goods is made at a certain credit, to be then paid for in a bill at a certain date, and no particular bill is specified, it means a bill accepted by the vendee; therefore, in an action by a vendor for not giving a bill in pursuance of such a sale, the plaintiff must prove that he drew a bill on the defendant, who refused to accept, and the circumstance that the defendant was insolvent and had dishonored his acceptances is not a dispensation to the plaintiff. Reed v. Mestaer, 2 Com. on Cont. 229.

         A note, bill or draft, which turns out to be unproductive, if given ic payment, may be treated as a mere nullity. Packford v. Maxwell, 6 D. & E. 52; Owenson v. Morse, 7 D. & E. 64.

       The -words are, “ made and signed by the parties.”

       See Clark v. Wright, 1 Atk. 12, contra, and the authorities there.

   SPENCEB, J.

delivered the opinion of the court. On the part of the defendants, two objections were raised to the plaintiffs recovery: 1. That in.neither of the counts is the contract set forth correspondent to the proof, and that therefore there is a fatal variance; 2. That the contract between the parties is a nudum pactum and within the statute of frauds and perjuries. The opinion I am about to give not being founded on either of the objections taken, it will be unnecessary to enter into a minute examination of them. To support the first exception, the defendants’ counsel rely on that part of the proof, whereby it was agreed that the defendants should pay the difference between the flour and note. This undoubtedly was an essential part of the contract, and, according to the rules of pleading, ought to have been stated. The second exception appears to me untenable, and the true answer was given to it by the plaintiff’s counsel: tbe statute of frauds requires, m certain contracts, a memorandum to be signed by the parties to be charged; if there are acts to be done by both parties, and the one who is to perform a principal part (as here the delivery of the flour, sign, and it is accepted by the other party, there can exist no doubt but that such contract would be mutually obligatory. In this case, I hold that there was a valid contract, executory in its nature ; but before the period of its execution arrived, the consideration agreed to be given by the plaintiff wholly failed, by the insolvency of Lyon. The offer by the plaintiff to pay in the note of a bankrupt, was not an offer of payment. In the case of Owenson v. Morse, 7 D. & E. 64, and Puckford v. Maxwell, 6 D. & E. 52, it is recognized as settled law, that upon an agreement to accept notes in payment, if before the delivery of the articles *purchased, the notes turn out not to be good, a tender of them is not to be considered a payment, unless it was part of the agreement to take them as such, and to run the risk of their being paid. It would be highly inequitable for the plaintiff to recover in this action, when the defendants have received no manner of consideration on the contract. We are therefore of opinion, that, on the merits, the defendants are entitled -to judgment.

Judgment of nonsuit.

       The same point was ruled in The People v. Howell, 4 Johns. Rep. 296, and Johnson v. Weed and another, 9 Johns. Rep. 310, and further, that a receipt in full is not a proof of an agreement so to accept them. But though there be such an agreement, if| at the time it be entered into, the vendee give a fraudulent representation of the responsibility of the maker of the note, the vendor may still consider it as a nullity, and proceed on the original contract. Wilson v. Foree, 6 Johns. Rep. 110. The law is the same, though the payment be in bank notes which prove forged, notwithstanding the vendee passed them innocently. Markle v. Hatfield, 2 Johns. Rep. 455. Eor a note is not payment unless duly honored. Even when the above circumstances do not occur, it merely suspends the right of action till due, at which period, if not satisfied, the party may resort to his original cause of aotioB. Putnam v. Lewis, 8 Johns Rep. 389.


author: Livingston, J.

text:
    R. and H. Stewart against M. Eden, executrix, and J and M. Eden, executors, of M. Eden, deceased.
    If a maker of a note cannot be found when it is due, evidence of that is sufficient to support the general averment that the note was presented, and payment refused. If the endorser of a note dated in Now York, have a house there, and also one on York-Island, notice of non-Dayment left at his house in New York is good.  If a holder of a note release one of several joint makers, excepting from such liability as he may be under to the endorsers, those endorsers cannot, in an action against them by such holder, set up such release in discharge. If the endorser of a note die before it fall due, and the holder in an action against the executors state that the endorser promised in his lifetime to pay, it is fatal, and on such a count a recovery cannot be had.
    This was an action by endorsees, against tbe executrix and executors of tbe payee endorser, on a joint promissory note, made in New York, by Waring and Medcalf Eden, one of tbe defendants in the suit.
    The declaration was in the common form, stating a demand on the makers, their refusal to pay, notice to the deceased in his lifetime, his liability thereon, and assumption to pay; but nothing special was alleged. To this plane administraverunt, and non assumpserunt were pleaded; on the latter of which issue was joined, and to the former the plaintiffs replied they had not fully administered. The several signatures being admitted, the plaintiffs, to prove the demand on the makers, gave in evidence that the note, was, on the 8tb of November, 1798, the day wben due, presented at tbe store of the makers, but no person being there, the porter who demanded payment went into an upper room, where he was informed that Waring and Eden were out of town, but that a young man opposite was their clerk. The note being then presented to him, he said, instructions to pay it had not been left. The day after this a notice in the usual form was carried to the dwelling-house of Medcalf Eden, the endorser, which was fouild fastened up, and on this the bearer of the notice rolled it up, and put it into the keyhole of the outer door. It was admitted that the deceased,. Medcalf Eden, shortly after the note was made, retired to his country seat, four miles from the city of New York, where he died on the 18th of September, 1798. That the will, under which the defendants acted, was not proved until the 19th day *of December, 1798, before which period the plaintiffs knew not of any will, or who were executors ; and that the defendant Martha had never intermed-dled with the affairs of the deceased, though enough had been left by him, at his country seat, to pay the bill in question, but that it had been sold under executions against the other executors, to satisfy debt due from them in their own rights. It appeared also that the plaintiffs, on the 17th of June, 1801, executed to Henry Waring, one of the makers of the note on which the present action was founded, an instrument in which, after reciting the note, the following discharge was contained:
    “In consideration of one dollar, to us paid by Henry Waring, we do hereby absolutely release and discharge him from all claims, suits, and demands which we have against him, on.account of the note of which the above is a copy, excepting always, that he shall be responsible tc the executors and executrix of Medcalf Eden, deceased, and to them only, we guarantying him against any suits to be brought on the same, by any other person or persons, obtaining the note in any way, except from the executor's or executrix, and tbis release or discharge shall not be construed to affect our claim in any manner against the said executors and executrix.
    • (Signed) “E. & H. Stewaet.”
    On the trial, the counsel for the defendants raised the following points:
    1. That the proof, as adduced by the plaintiffs, did not support their declaration; because it is in that stated, that at the time the note became due, it was shown and presented to the makers and payment demanded of them; whereas the testimony was, that they were not to be found, and therefore a variance between the fact stated and the evidence given.
    2. That the count states notice of non-payment given to the endorser, by reason whereof he became liable to pay, assumed, and refused, which could not be, as the endorser died before the note was due.
    8. That the discharge and release to Henry Waring, one of the makers, was an exoneration m law of the endorser, and consequently of his executors.
    *4. That notice of non-payment ought to have [*123] been at the country house of the endorser.
    5. That as Martha Eden, the executrix, never intermed-dled with the estate of the testator, against her judgment de bonis testaioris only ought to be entered, and she not held responsible in her own right. .
    It was agreed, however, that a verdict should be taken for the plaintiffs; but that if the opinion of the court should be for the defendants, upon either the first or second points, a nonsuit to be entered: if for them on the third and fourth points, or either of them, the defendants to have the verdict entered for them; and if, on the testimony as admitted, the court should think there was no evidence to charge the defendant Martha Eden personally, then the judgmentto be de bonis testaioris.

    Hiclcer„ for the plaintiff.
    On the first point made by the defendants, it is sufficient to say, if a maker of a note, 01 drawer of a bill, cannot be found, or has deserted bis country, a demand at his place of residence is sufficient. Kyd, 88, (edit. 1795, p. 138,) who for this cites Malyne. The same position is in Chitty, 99. It may be still urged that the demand is not duly alleged, and for this will be cited Baley, 109, but the decision there has been overruled. In Saunderson v. Judge,

       2 H. Bl. 511, it is said by the court, “it is not necessary that a demand should be personal; it is sufficient if it be made at the house of the maker.” Therefore, if it be on a servant, a wife, or a child, it is enough, and the manner need not be stated. On the second objection, though we admit the endorser died before the bill was due, yet as the assumption of an endorser is only a conclusion of law from the facts, it is never proved; it is a mere formal averment. If a drawee be dead, the presentment should be, I confess, to his representatives; and the same reason applies to an endorser. But that is only in case the representative lives at a reasonable distance. Chitty, 71. But if there is no executor, then notice at the house of the deceased is all that can be given. Chitty, 131, 132. As to the third ground taken, there is not any thing better established than that there must be an actual satisfaction of a bill or note by the maker or drawee, to discharge the parties antecedent to the holder. An ineffectual execution against the maker ; nay, Getting him out from execution on a letter of license, is inadequate to work a discharge. Hayling v. Mulhall, 2 Bl. Rep. 1235. Bayley, 87, 88. Chitty, 182, 183, to the same effect. But it will be said we compounded. The only reason why a composition with a maker or drawer releases the endorsers, .is because it takes away the remedy of the holder. Ex parte Smith, 3 Bro. Ch. Rep. 1. This argument cannot operate here, for the right of the defendants is expressly saved. It is to be recollected that Waring, the person released by the plaintiffs, was a partner with Medcalf Eden, one of the executors, and if the act of one partner is the act of another, and that of one executor the act of all, then, from the privity of the situation h'e occupied, a consent may be implied on the part both of the makers and defendants. The not presenting at the house in the country, which is fourthly insisted on, must fail, because the endorser was not to be sought for at both his dwelling-houses; for if a presentment at one is bad, a presentment at the other would be equally so, and two bad presentments can never make a good one. On the last point, if the defendant Martha Eden had a good defence, it ought to have been pleaded separately; but as she has joined with the other parties she is concluded. Middleton v. Price, 1 Wils. 17; Esp. N. P. 336; Philips v. Biron, 1 Stra. 509. These, it is true, were actions of trespass, bul the principle is the same.

      Woods and' Harison, contra.
    The case cited from II Blackstone mentions the declaration to have been in the usual form ; the one now before the court we say is not.so, and for that we adduce a precedent in 1 Went. Plead. 307, referring to Carth.509, where the words “ non fuit inventus" are used, and this is the authority Bayley relies on in page 109. This principle is particularly laid down in Bushton v. Aspinall, Doug. 654, 680, where the court say, that though a declaration may omit an inference of law, when it sets forth premises to warrant that.inference, yet, when it does not state those premises, the court cannot make the legal inference. This reasoning and authority fully establishes the second objection, for the executors could not assume unless applied to. The precedents in Went. Plead, on this very point, show the form that ought to have been adopted, and the manner in which the notice to the defendants should have been expressed. A promise to a tdstator *will not be maintained by showing a promise to his executors. Dean v. Crane, 1 Salic. 28. The forms of pleading, therefore, require that the notice to the defendants should have been set forth. The fourth point speaks for itself. The country residence of the endorser was known, and if the law requried the notice to him to be given there, a fortiori, would it in the case of his representatives.- But our principal reliance is on the release.- In Kelloclc v. Robinson, 2 Stra. 745, taking part payment from a maker of a note was held a discharge of the endorser. The exception in the writing executed by the plaintiffs was merely to enable them to sue the defendants. It was a nominal exception, and then, on the principle of English v. Darky, 2 Bos. & Pull. 61, this species of exception will not destroy the effect of the release in exonerating the makers. The same doctrine is found in Evans, on Money Had and Received, 163, 170. Besides, it is a maxim, that where an exception goes to destroy the substance of an instrument, the exception is void, but the instrument stands good. So here, the exception is for the sake of defeating the legal operation of the act done. On the fifth point, the strict rule of practice may, perhaps, be against us; but as it is evident, on the face of the case, that the devastavit was not by Martha Eden, perhaps judgment (if any is to be rendered against the defendants) ought, as to her, to be only de bonis testatoris, for the devastavit of one executor is not the devastavit of another. Toller’s Law of Exec. 342.

      Hamilton, in reply.
    The notice to the maker must be held good, because every person in his situation is supposed to promise that his note shall be paid at the place where dated, unless the contrary appear on the face of the instrument. I remember a case, where a person not resident in tbis city drew a note, which was protested and recovered od, though no inquiry was made elsewhere. This is the law of France on this subject, and it certainly has all the advantages of convenience. If so, then on his not paying when demanded, the endorser became liable, and it is enough to state the right according to legal operation and effect. Minet v. Oibson, 1 H. Bl. 569 ; Bishop v. Hayward, 4 D. & E. 470. The release, as it is called, is not so ; it is not under seal; it cannot be in any form pleaded as a discharge. Not as an accord and satisfaction. In short, to substantiate it,*chancery must be resorted to. That the exception is destructive of the instrument, may perhaps be urged by Waring, but surely not by Eden. But the instrument is not defeated by the exception; it was a contract in which Waring agreed to remain liable to the defendants, and therefore the exception is in affirmance of the intent of the parties.

       Want of demand on the acceptor or maker will bo excused when he cannot be found, and may be given in evidence under an averment that the note was presented, &c. Herring v. Sanger, 3 J. C. 71; see Root v. Franklin, 3 J. R. 207; Cumming v. Fisher, Anth. N. P. 1; Anderson v. Drake, 14 Johnson, 114; Woodworth v. Bank of America, in Error, 19 J. R. 230; Contra: S. C., 18 J. R. 315; Ogden v. Cowley, 2 J. R. 274; Scofield v. Bayard, 3 Wend. 488; Cayuga Co. Bank v. Hunt, 2 Hill, 635.
      If tile endorsee of a note be dead at the time it becomes payable, and there are executors or administrators, known to the holder, notice of nonpayment must be given to them; they represent 'the testator or intestate. Merchants' Bank v. Birch's Exr's.; 17 J. R. 25; see Willis v. Green, 5 Hill, 234; Cayuga Co. Bank v. Bennett, 5 Hill, 236.

       In this case the note was made payable at the banking-house of Saun.* derson, and the question was, whether a demand there was not good. Thí court held it was, and sufficient proof of the general averment of having been presented to the maker for payment. «

         In that case it was ruled, that a holder of a note receiving from the maker part payment, and security for the residue, with an exception of a nominal sum to enable him to sue the other parties, released all the endorsors.

       There certainly could be no difficulty in pleading this as an agreement and satisfaction.

         As one of the executors was one of the makers of the note in question, quaere, whether any action could have been maintained by them against the makers. See Mainwaring v. Neuman, 2 Bos & Pull. 120.

   Livingston, J.

delivered the opinion of the court. II the maker, when' a note falls due, cannot be found, nor payment demanded of him personally, should not the declaration state that fact specially, instead of averring, generally, “ that the note was presented and payment refused ?” This is the first question made in this cause. It is agreed, that the plaintiffs might have stated what particular diligence they used, in lieu of alleging, as they have done, that the note was “ presented to the maker, and by him dishonoredbut it has been most usual to pursue the latter course, and no good reason can be assigned for departing from it. Under an averment of the note’s being presented, the party has hitherto been permitted to give evidence of any diligence which is deemed equivalent to an actual presentation of it to the maker. Precedents are generally this way, and if in some, the whole matter intended to be insisted on as evidence of a demand be set forth, it only proves that either form is good. In Saunderson and others v. Judge, 2 H. Bl. 510, the declaration stated that “ the note was presented to the maker for payment.’’ No demand, however, had been made of him, for he had absconded, and could not be found. The judge, therefore, nonsuited the plaintiffs, supposing an actual demand necessary. This nonsuit was set aside, although it was contended, as here, that the plaintiffs, having averred that the note was presented to the maker in person, ought to have been held to proof of that fact. The court disregarded this objection, and recognized the principle that due diligence in the holder to obtain payment, without an actual demand, is good evidence to support such averment. It is true, that in Bayley on Bills, p. 110, it is said, “ that if a note be alleged to be presented, and payment refused, evidence cannot be given of the maker’s not being found but this is a decision at nisi jprius, on which it would be capricious to alter a practice of declaring, *vvhich has been pretty uniformly followed, since the introduction into general use of bills of exchange and promissory notes. The case of Starke v. Cheesman, from Carthew, so much relied on by defendants, prove nothing more than that it is sufficient to aver that the drawer of a bill was not found, without stating that inquiry had been made after him, and that such form of declaring is good. This is not disputed.; but it does not follow that no other form will do. My opinion therefore is, that the present averment was sufficiently supported by testimony, that the makers, on inquiry at their store, could not be found; and that payment was therefore demanded of a clerk, who said they were out- of town, and had left no instructions to pay the note. 2. Ought notice of the maker’s default to have been sent to the endorser’s country house ? The note being dated in New-York, the maker and endorser arepre-Burned to 'have resided, and contemplated payment, there. It is admitted, indeed, that tbe endorser did reside in tbe city at tbe time of its date, for it is stated, that shortly thereafter be went to bis country seat, shutting up his house in town. We must talce care that, while proper diligence be imposed on the holder of negotiable paper, we do not exact from him every possible exertion that might have been made to affect an endorser with knowledge of its being dishonored. If he has done all that a. diligent and prudent man could naturally and fairly do under like circumstances; if the law has prescribed no certain way of sending a notice in the given case ; if the endorser’s own conduct has rendered it somewhat difficult to determine in what way the notice ought to be given; and especially, if from what has been done, it may reasonably be presumed that notice has reached the parties concerned, we should be satisfied, and not ask for more. Endorsers, therefore, cannot complain, if notices of this nature are permitted to be left at their houses in town notwithstanding their removal into the country during the hot months. It is more reasonable that they leave a person in town to attend to their business, than that the holders of their paper be put to the trouble of finding out to what part of the country they have removed and sending after them. It is also probable, especially when the distance between the two houses is only four miles, as it was here, that some communication "will be kept up between them, and that a letter left at the dwelling in town will not be long in finding its way to the country. I speak now of a temporary residence in the country; for a permament removal from the city might render a different course necessary. Nor was it fatal to direct the notice to the endorser himself; for as it was not known whether he had made a will, nor who is executors were, until long after, it was full as probable that it would reach the parties interested by this address as by any other; some one of the deceased’s family would either open it, or see it safely delivered to an exeeutor. The notice, therefore, was well served, and its address proper. 8. What is to be the effect of the writing given to Warning, one of the makers of this note? The defendants cannot complain of this transaction, nor should they be permitted to derive any benefit from it, unless their remedy against the makers, or either of them, be affected by it. If we understand this paper according to the obvious meaning of the parties, and its own import, (and why should it not be so understood ?) we may give to it every effect it was intended to produce, without impairing any right of the defendants. The plaintiffs were willing to release Waring, but only on condition of his remaining liable to the representatives of the endorser, and to those to whom they might pass the note. This was necessary to secure their own recourse on the executors of Eden’s will. Nor is the exception repugnant to the main object of the release, if it may be so called; for Waring might have set-off against Eden’s estate, and therefore be willing to remain liable to his representatives. This instrument, therefore, is no bar to the present suit. 4. Ás Medcalf Eden died long before the note became due, it is contended that- the evidence not only does not support the promise alleged to have been made by him, on the 8th of November, 1798, which was after his death, but shows that it was impossible he could have made it. Averse from nonsuiting the plaintiffs, and thus turning them round to another action, we have been anxious to overcome this objection, but after the best reflection it appears to us fatal to the present suit. Although, when the holder of a note has done all that is required of him, the law implies an undertaking on the endorser’s part, yet where the condition on which *tkis promise arises happens not until after his death, the assumpsit devolves on his executors, to avoid the absurdity of a dead man’s contracting The assumption, as here laid cannot be made good by relation to the date of the note, or endorsement, for it is not merely'because of his endorsement that Eden was liable. There must first be a default in the maker, and certain acts done, or diligence used by, tbe bolder. It is accordingly stated in tbis declaration, tbat by reason of a demand of tbe maker, and non-payment by bim, and notice thereof to Eden, be became liable, and being liable, he promised, in bis lifetime, to pay, &e. but it appears in evidence tbat Eden bad been dead near two months before be is said to have made tbis promise. There can be no necessity for declaring in tbis way, when it would have comported with the truth, and answered as well as to have stated a notice of non-payment to tbe defendants, and an assumpsit by them. The only case in any degree resembling tbis, is tbat of Deane v. Crane, in 6 Mod. 309. An executor bad declared on a promise made to bis testator above six years before the action brought, on non as-sumpsit infra sex annos; it appeared tbat the defendant bad made a promise to the executors, after the testator’s death, but before any action was brought; all tbe judges agreed, on tbe case being referred to them, tbat tbe evidence did not support tbe declaration, but that tbe executor should have declared on a promise made to himself; so neither here does the evidence support the declaration, which should have been on a promise made by the executors. A non-suit must, therefore, be entered in conformity with the agreement of tbe parties. This renders it unnecessary to say what judgment should be rendered against Martha Eden, because, if another action be brought, she can plead separately, and thus avoid her present embarrass ment. Tbe other points have been disposed of to prevent their being brought up again in the next action.

Judgment of nonsuit.