author: Thom?son, J.

text:
    James W. Payne against Joseph Eden.
    ALBANY,
    August, 1805.
    ASSUMPSIT by the holder of a promissory note, made and indorsed under the following circumstances,.
    The defendant being about to take the benefit of the il act, for giving relief in cases of insolvency,” applied ■to John H. Hurtin, one of his creditors, to sign his petition. This he agreed to do, on receiving, for the amount of his debt, a note payable 60 days after date, leaving a blank for the date, to be inserted after the discharge was obtained. In consequence of this, Eden signed the note on which the present suit was brought, and Hurtin without annexing any affidavit of his debt, put his name, which was the very last, to the petition; though, exclusive of him, there was q sufficiency in number and value to exonerate the defendant. Four days after Eden had obtained his discharge, Hurtin filled up the blank left for the date, as if the note had been then given, and indorsed it over, in trust for one of his relations, to. the plaintiff. At the period when it fell due, the defendant was applied to for payment, and promised be would discharge it, admitting it to be justly owing.

      An action will notiieona note given, with a blank for the date, on consideration of signing an insolvent’s discharge, and to be filled up after his exoneration, though, subsequent to its being so filled up, the maker promise to pay it, and have a sufficiency in number and value without the payee, such note being void in its creation, and not capable of being set up by a subsequent promise. A note indorsed to a third person in trust for the benefit of some relative of the in-dorsor's is, in an action by the indorsee, open to the same objections as if the suit liad been bv the indor-
    Upon these facts, the judge advised a verdict to be taken for the plaintiff, subject to the opinion of the court, how far the action was maintainable ; and that it should be referred to the jury to determine, on what consideration the note was given. This being acquiesced in, they found for the plaintiff, but that the note was made by the defendant, previous to his discharge under the insolvent law, and in consideration of the payee’s agreeing to sign his petition, for a debt of the same .amount, as that specified in the note.
    The case now came before the court, on this single point, whether the action was maintainable or not ?

      Jioyd, for the plaintiff.
    Every note of hand carries within itself, prima facie evidence of a good consideration j and though, as between maker and payee, this may be en_ quired into, yet in the hands of a third person, the investigation is, unless suspicious circumstances intervene, in general shut out. This is the common rule ; if there are, any exceptions, which take the present case out of it, they must be shewn by the other side. But allowing the note to have been originally bad, the promise to pay it, made subsequent to the discharge, has rendered it good. A debt from which a party is released by a certificate, or operation of law, continues to exist in foro conscien,tice, and is revived by a promise to pay. The reason is, the duty remains though the remedy be gone. This principle applies, with equal force, to a security for a debt. What is there to take, this out of the common case, of a blank indorsement, or a blank signature, left with a person, to be afterwards filled up? It can never be impeached, on account of the consideration between the original parties, for it takes .ef? feet from the filling up and delivery. ' The present question is not within the rule of the authorities that may be addu - ced ; for, without the signature of Hurtin, there was.a sufficiency, in number and value, to give Eden his discharge. There could, therefore, be no fraud on creditors, as Hur-pin was the last who signed.,

      Caines nciá Woods, contra.
    General principles are against the action. To support it, would be to defeat the provi-sicns of tbe act, the objects of which are, equality of payment, and exoneration of the debtor. Both in the present instance, would be equally contravened. The note is void, as a fraud against creditors. Cockshot v. Bennett 2 D. & E. 763. Jackson v. Duchaire, 3 D. & E. 55!. Jackson v. Domas, 4 D. & E. 763. 'Shirley v. Martin, Excheq. 14th Nov. 1779. Holland v. Palmer, 1 Bos. & Pull. 95. No recovery, therefore, can be had on either a bond or note, given on such a consideration. Sumner v.' Brady, 1 //. Black. 647. To say that there has been no fraud here, because there were signatures enough without Hurtin, and that he did not swear to his debt, is no answer to the authorities cited.
    Decisions are to be framed on the br.oad principles of general law, and the spirit of the act is to govern. By the 3d section, a creditor is not to receive any thing “ in ac¿ iionP This, it is true,' is confined by the words of the act, to creditors swearing to their debts. But the case before the Court is within the spirit of the law, and, therefore, to be decided by it, ‘s lest,” according to Lord Coke in Tzvynes case, “ the good provisions of the law, by a ic little addition and evil intention, should be defeated.” A further reason may be added ; if the note was given in consideration of Hurtin!s signing the petition, then, if he did not sign as the law requires, the consideration has failed; and the action cannot be maintained. Besides, the note was void for want of consideration, as without Hurtin there was number and value, and his nanie therefore useless. So absolutely void are securities, of this nature, that moneys had and received, will lie for what has been paid on therm Smith v. Bromley, Doug. 696. (n.) ; nay; so jealous is the law on these points, that an agreement to give additional security for a composition, cannot be enforced; Leicester v." Rose, A East, 372. It is not merely as a fraud on creditors,that securities of this nature are void. They are so, from a species of duress, under which the debtor is supposed to be. Sumner v* Brady, and the ■ other cases referred to. These principles are" not the result of statute law; for to use the words of Lord Mansfield, “ it was wrong before any provision wah made by statute against it.” Smith v. Bromley already-citedi That the note is in the hands of a Pers°n, is immaterial; for when an instrument k void in its creation, it is not available in the hands-of even a bona fde holder. Lowe v. Waller, Doug. 765. It is true, this decision was under, the statute against usurp But the principle is the same, whether an instrument bi void by statute or common law. For, when a statute adds one thing more to the list of illegal contracts,- it; does not make a new rule of law for that particular-thing, but only refers one more case to be governed by old principles. ' The promise, therefore, to pay the note, could hot render valid the instrument on which this suit is founded; for according to Buller, J. in Cockshot v. Bennett, 2 D. h F. 763. “ if tc the security were void, no subsequent promise can set it “ up, for it must be recollected, that the promise which “ is relied on, is to revive the note.” A distinction, therefore, is to be taken between the debt and the security. The first was lawful in its creation, 'the other never had legal existence. Therefore, added Buller, ‘fr this is not “ like the case of Trueman v. Fenton.”

       This reasoning applies to the argument of signing and indorsing blank paper ; that is not illegal, but the giving the note by the defendant, was against law, at the time he delivered it, and could not be made good by any ex post facto act. A further reason may be assigned against the jus tertii. It does hot appear that the plaintiff gave any value ; he is admitted to be a trustee for a relation of the payee. This throws-an air of suspicion on the whole transaction, and láys it Open to the same inquiry, as if the suit was between Hurtih and the defendant. Grant v. Vaughan

       Miller v. Race.

      Riggs in reply.
    The cases cited are exceptions to the general rule, that' a promissory note ought to be paid«The question is, ■ is this such a case ? On the score of fraud, every argument has been anticipated, but on the point of duress, it remains to shew the reasoning of the other side does not apply. So long as there is a deficiency in number and value, the debtor may be said to be under duress, but when the petition is subscribed by the proper number of creditors, whose debts amount ter the sum required by the act, that duress müst cease, and the deduction fail. There is nothing therefore, to prevent maintaining the suit. The note must be taken to have been delivered, only when it was perfected ; that Was,- after the bankruptcy; : , . r , . , , and the promise to pay", made it good by relation to that time. - . y •

       1 Rev. Laws, 428.

         Cowp. 544.

       4 Burr. 1516.

         1 Burr. 452.

   Per-curiam, Delivered by

Thom?son, J.

This action, I think cannot he sustained. The consideration for which the note • in question was given, undoubtedly Was, that the payee should become, under the insolvent act,. a petitioning creditor, for the maker, though for a debt' bona jide due. Why the defendant, under -the circumstances stated in the case, should be induced to give the note, is not easily discernible. He had a competent number of petitioning creditors, without Hurtin, But, whatever the reason might have been, the, inducement for giving the note, according to the facts stated in the case, was, that Hurtin should become a petitioning creditor* I consider the transaction to have been founded in fraud, and against the policy of the insolvent act. Although others might not have been induced to be-come petitioning creditors by Hiirtirls example, yet md-tives of humanity might have influenced them to it, for the purpose of extricating the defendant from his embarrassments, and which they ought, and probably would have withheld, had they supposed him liable to any of his creditors after his. discharge. If this note be valid, Hurtin not only- secured to himself a benefit not common to all the creditors, but will receive more than the amount of his demand. He receives the dividend of the insolvents estate, which, for any thing that appears, might haye been twenty shillings in the pound, and besides, recovers hie whole debt against the defendant, on the note. This would be a fraud upon the other creditors; for, if Hurtinrs demand be extinguished by the note in question, the dividend of the insolvents estate, among his other creditors, must be increased. I therefore view the transaction in no other point.of light, than as founded in fraud, the note.consequently void in its creation, and being so, the subsequent promise will avail nothing. Contracts not founded in fraud, qr on.immoral considerations, may be revived by subsequent promises, though before such promise, there was no legal remedy. This, however, applies only to cases where the contract is voidable, and not where it is absolutely void* In such cases, no subsequent promise can revive it. It is a' mere nudum pactum. ' Hue tin's debt was annihilated by the defendant’s discharge under the insolvent act, and he was under no obligation in equity or good conscience, to pay the debt, so as to raise a consideration for the subsequent promise.

I take it for granted, from the admissions stated in the case “ that the note in question was held by the plaintiff as “ trustee, and for the benefit of some relation of John H. HurtinJ that we are to consider the cause in the same point of view, as if the original parties were now before us. Under these circumstances, the opinion of the court is, that the defendant is entitled to have judgment.


source: Caselaw Access Project

author: Per curiam.

license: Public Domain

text:
    Joseph Ely against Harman Van Beuren.
    ALBANY,
    August, 1805.
    After verdict-in a justices court in an action foe a penalty, it Will be intended that the offence proved, :was such as warranted ally declared . ior, and there;fore all form in the declaration asuit, if only.a penalty be mantled, it will, after verdict, be intended the res-.due was waiv-fend-uit^below cannot for error, that erwhhan might have been sued fact, ^winch*is ho offence, and mage? appear noitohavebeen for,C"and only maiter of ag-giavation. '
    ON CERTIORARI. The suit below was under the . . 15th section or the act concerning slaves and servants, to recover the penalty of 12 dols. 50 cts. for trading with the , ° . slave of the plaintiff. The declaration was for only 12 dols.” cts> stating the trading to be to.the amount of two dul-00 _ , and that the defendant had also innoculated the child 0f ⅛⅛ slave.
    The errors submitted were, first, that the kinds of goods §⅛! Were not set forth. It might have been liquor ; and then, under the 15th section, the penalty was only five dol-2dly, that the plaintiff should also have declared for the treble value of the. articles traded in ; the action having ¡jeen for onfy jiajf Gf the forfeitures incurred, for the two J sums of 12 dols. 50 cts., and the treble value of the goods, ma‘ce but.one penalty.' 3dly,that the inoculation .complain-of, was no offence.

       1 Res. Laws, 618.

   Per curiam.

We must, after trial, intend, that the trad-was shewn by proof, to be within the loth section, and tras not for strong liquor. As to the suit being for only a Pari ihe penalty, it is clear that the plaintiff was entitled to wJjat he did demand, the 12 dols. 50 cts. ; he might have waived the treble, damages, as. he had a right to do,'and the defendant below cannot complain that the plaintiff has re* covered less than he might have sued for. The parties ap-peare¿ ay the tria}, and no-objection Vas taken to the form 1 . ,. ... of the declaration; eyery informality 01 .it is, therefore, cui-ed ; and we must now intend the substance of it vas proy’ ed. The inoculation, therefore, was idle and null. It was . • , i • i i*. but mere aggravation, ana, as only a single penalty was recovered, it is evident no damages were given on that account. Affirm the judgment.


text:
    John D. Petrie against Jewit Woodworth.
    Where a name appears to be a foreign one, a variance of a letter, which, accordingto the pronunciation ofthat language, does not vary the sound, is not a misnomer. Declaring for 'damages “ on ac- “ count of not “ fulfilling a contract fora “ lot of land” in a certain place, is before a justice, sufficiently certain.
    IN ERROR on certiorari, the exceptions were, 1st, that the defendant below pleaded in abatement, a misnomer, in being sued as Petris, instead of Petrie. 2d, That the declaration was uncertain and insufficient.
   Per curiam.

It was not a misnomer. It was the same surname, with the mis-spelling of one letter. The pronunciation would still be the same in French, as the name seems' to import. It may also be well inferred from the return, that it appeared to the justice, that the defendant was as well known by one name as the other, if they be different; and such a replication to such a plea is good. The second objection has no weight. The declaration is goGd enough. It was “ for damages, on account of the defendant’s not “ fulfilling- a contract for a certain lot of lease land, lying in. German Flats.” We are of opinion that the judgment be affirmed.


text:
    Gabriel Manny against James Dobie.
    ON CERTIORARI. The defendant below refused to plead, on which the justice awarded a venire, which was now assigned for error.
    justice to award a venire, on a default, or when a.defend-not
   Per curiam.

, , I he judgment must be reversed.' The award of a venire was erroneous. It cannot be done on a judgment by de.fault, or where the defendant does not plead. An issue must be joined.


author: Tompkins, J.

text:
    Jonas Smith and Henry A. Delamater against James Richardson.
    ALBANY,
    August, 1805.
    GOLD moved to set aside the report of referees in this suit, on an affidavit stating, that it was instituted to recover damages for a breach of contract, in not transporting 5000 staves, belonging to the plaintiffs, from Chaumont, in the •ounty of Oneida, to one Lssejtyne’s, on the river St. Law

      rence, in consequence of which, the plaintiffs themselves, undertook to do it, at an unusual season of the year; and in the attempt, the raft was cast away, and 60© staves lost. That under these circumstances, the referees, in assessing the damages, estimated them at the full value which the staves would' have brought at the Montreal or §>uebeck market, and reported 341 dollars due. This he contended was, ⅛ the first place, an improper rule to go by: for should even the defendant be liable for the amount of the staves lost, it could be only for so much as they were worth, on the spot where they lay. But secondly, he argued, that the report ought to have been for damages merely on account pf the breach of the contract, which was to transport for 37 dollars, without any regard to the property in question ; especially as the plaintiffs had, by their unwarrantable con, duct, exposed it to unusual and excessive risks.

      ^ ⅛ ¿ónse-quence of a ' fracHn °notC°n transporting conveyance and lost, damages cannot be recovered for their value at the port of destination, nor ■will they be allowed for interest lost in con-quence of'not being in cash for them at the time when they otherwise would have been sold.

      Emott contra,
    urged, that the action, as appeared from the declaration, demanded damages for five several reasons ; 1st, For goods sold and delivered, gd, For the loss of 600 3taves. 3d, For the breach of the contract, in consequence of which, the staves could not be delivered in season, and thereby the plaintiffs suffered from a depreciation in the market. 4th, For aloss and injury sustained, in being oblig.ed to transport in an unfavourable and dangerous season, at greater hazard and expense. 5th, By way of interest on the priee of the staves, from the time when they would have been disposed of, to that at which they were actually lost. That therefore, the report might he founded on the value of the goods sold, and as the sum at which the referees assessed the damages, might have been the actual loss to the plaintiffs, by not having their property at market in due season, the application ought not to be granted.

      Gold ⅛ reply.
    The goods sold and delivered, were furnished in payment of the 37 dollars consideration money, for .transporting the staves. Besides, on a contract .where the sum paid was so small, it is contrary to all reason to make the party to perform, insure the articles against the hazards of the voyage, and that too, at ail unseasonable period. Nor. can he, with greater propriety be called on to compensate for a loss of market; for, had he entered on his ^undertaking, non constat, the staves would have arrived-
   Per. curiam, delivered by

Tompkins, J.

The affidavit, on the part of the defendant alleges, that the cause oí ac-iion presented by the plaintiffs to the referees, was the nonperformance, by the defendant, of a contract to transport staves belonging to the plaintiffs.

For the plaintiffs it is alleged, that evidence was ad* duced by them, in support of five grounds of action. The' first ground, it was incumbent on the plaintiffs to prove, id order to make out the consideration for the defendant’s promise, which is stated, to have been goods sold and delivered ; and the other four grounds grow out of the special contract. The affidavits are, therefore, reconcileable,

I am inclined to think, the referees have adopted an incorrect principle, in fixing the damages of the plaintiffs»The price s which the articles to be transported, might have brought at the Quebec, or Montreal market, is too uncertain and unreasonable to be admitted as a rule of damages $ neither ought the referees to have taken into the account, interest upon such price. It also appears, that, upon the defendant’s failure to fulfill his engagement, the staves were taken into the possession of the plaintiffs, and lost by them in attempting to transport them, at an unusual and very dangerous season» It is therefore questionable, whether the entire loss of the staves is not attributable to the imprudence and default of the plaintiffs ; but even, if the defendant is answerable for them, the value of the staves at Ghaumont, and not the possible market price at ¡Quebec., or Montreal, ought to have governed the referees. I am, therefore, of opinion, the defendant ought take the effect ef his motion»


text:
    The People against Smith.
    ALBANY,
    August, 1805.
    PENDLETON, having on a former day, obtained a .yule to shew cause, why an attachment should not issue against, the defendant, for appropriating- money collected for his client, who was in prison, now moved to have it made absolute, and in support of the application cited, Sayi Sí. 169» 4 Burr* 2060» Stra, 621» & l Bum 654»
    Woods,, contra,
    insisted the proceeding was unwarranted 5 that the money was retained for costs and other dé* manc^s’ anc^ ^ Slicb a measure was adopted, it would be placing an officer of the court in a worse situation than any other citizen, as be would thus lose the benefit of a trial byjury.

      Tf an attorney withhold the money of his c ient, (hiscourt will afford relief in a summary way, without driving the client to an action»
   Per curiam.

There is no doubt of the authority of the court to proceed against attornies, for misbehaviour in this summary way. The case in Say. 169, is in point. The defendant’s conduct has been so very improper, that we are bound to interfere. We accordingly, by a special rule direct, that he exhibit to the clerk of the court, in New-Tork, within ten days, his counter demands for costs, and, if any balance appear due on liquidation of the accounts, that he pay it in twenty days, or the attachment issue.


author: Livingston, j.

text:
    Jackson ex dem’ Borden Wilber against Charlotte Brownell.
    ALBANY,
    August, 1805.
    A sheriff’s sale of lands under void/ because on a judgment confessed on a bond given by a man otherwise in debt, and the obligee declare he means to befriend the obli-> niil/U<oneS ⅜ whom is accepted as the purcbaser nn-der the cxecution, without pacing the sheriff the conside- and^he^ntiv’ of the obligor possession n as before. Aider ‘bond^waYnot for an actual
    IN EJECTMENT, 'the lessor of the plaintiff made tí» ⅛ ivnc’ier a sheriff’s sale, by virtue of a /?. fa. issued on a judgment against George Brownell, signed the 5 th of August, igoi in a suit, instituted before October term, 1800. The r . , . ' deiendant relied on a stile, by virtue of a ji-fa. upon ajudgment by confession, on a bond for 4000 dols. dated the 1st J 7 of October, 1800, to one Bradford Richmond, under whom she held.
    Upon the trial it appeared, that Richmond himself, was a man °* n0 ProPerty; but that he, having been deputed bv several persons to recover debts due them from George groxvneH had taken from him a bond and wai-rant of at- ’ torney for the various amounts, on which the judgment by ccmfüssjon had been obtained, and bad settled with the ere-ditors of Brownell, for their respective demands, by giving own responsibilities. That, however, on the day of sale, no money consideration wasseen to pass from the defendant» who was the daughter of the obligor, to Richmond, he only acknowledging her bid, and giving a receipt for 4000 dols. for which sum, there was a report she had given her notes.’ That, from the conduct of BrowmlPs family at the vendue, there seemed to be no uneasiness of mind at the circumstance of his property being sold ; on the contrary, they appeared anxious to bring as much under it as possihle and that, since the period of sale, the family of the obligor bad resided on the lands in question, without any apparent alteration in the manner of working and conducting them, from that which was before observed, in addition to these facts, it was in testimony, that, previous to the auction, Richmond had expressed himself in a very friendly way, with respect to the obligor, by saying, he did not wish to injure him, and intended to give him a chance.
    From these circumstances, it was contended the sale was fraudulent, and the judge charged, that if the jury believed the bond and warrant of attorney were given to Richmond, upon an assurance, or understanding, that on the consequent sale which might take place, some favor or benefit should be shewn or allowed to Brownell, or his family ; or that there was any secret trust or confidence between Brownell and Richmond,, for that purpose, it wmuld be evidence of fyaud against creditors ; and, although the amount for which the bond was given, was due, their verdict ought to be for the plaintiff, in consequence of which they so found.
    It was now submitted to the court, whether the judge had not misdirected the jury, and the verdict, they in con- . sequence rendered, ought not to he set aside ?
   Per curiam, delivered by

Livingston, j.

Were it certain that the jury proceeded on the ground of Richmond’s demand being fictitious, we should not disturb their finding. The probability, however, is, that they acted under a belief of Richmond’s having promised, or that there was an understanding between the parties, that, in the disposal of his property, favor should be shewn to Brownell and his family. This would hare been in conformity with that part of the direction of the learned judge, who tried the cause, which is supposed to be incorrect. Whether it were so or not, will now be examined. Such understanding, with respect to personal property, it is conceded, would have been fraudulent; but it may well be doubted, whether the considerations, which govern cases of this kind, apply to real estates. These arrangements between debtor and creditor* are not deemed fraudulent, hecause of any illegality in the transaction, as it regards the parties themselvesl but on account of their tendency to deceive, and impose on third persons. It were a cruel policy in any cod? of laws, to interdict every species of favor to ⅞⅞ unfortunate debtor, under the penalty of vacating all securi» ties taken on those terms. On the contrary, a creditor may be as indulgent, and shew what favor he pleases, as the Price obtaining security, on land, for a doubtful debt: care must only be taken, that there be no secret -understanding constituting a trust in the creditor, in derogation or con_ trovention of the ostensible alienation, or the transfer will be deemed a cover, by which other creditors will not be prejudiced 5 or, in other words, a change of estate will not, under such circumstances, be considered as having taken place. But nothing of this kind occurred here. It is not de» nied that the land passed, by the sheriff’s deed to Richmond., nor pretended that he holds it in trust for Brownell, or any of his family, but only that he had no right to obtain judg-mcnt, on a promise to permit them to remain in possession, on terms of particular favor. In this promise, I perceive nothing illegal. If Richmond's debt were in danger, and he could not obtain judgment on his own terms, he must sub» mit to those of his debtor, who., in giving a new security, had a right to make the best bargain he could, so that others were not defrauded, What was to have prevented. Richmond's taking a mortgage for his debt, on this very property, payable on the death of Brownell, and with an express agreement that the latter should enjoy the premises during his life, or for a shorter period ? or receiving an absolute deed, in extinguishment of his debt, under an agreement to give a lease immediately to Brownell, for one or more years, or as long as he might live, at a pepper-corn per annum ? Agreements of this nature can only be impeached on a supposition that there is no difference between such cases and that of Tzvync. A moment’s consideration must convince us of the contrary. Besides, that Twyne was prosecuted on the 13th Eliz, cap. S. for making and publishing a fraudulent gift of goods, notqne of tb,e badges of fraud, there relied on, exists here.

1st. The gift in that case was general, without excepting apparel, or any thing of necessity. Here was no gift qt all, but a judgment which could only be satisfied by a subsequent public sale, and of so much property only, as might be viopth the debt?

2d. Tzvyne’s debtor continued in possession, used the goods as his own, and thereby, defrauded and deceived those with whom he traded. This could not happen here. The defendant held the premises under Richmond, and paid rent. But if she had occupied them gratis, possession of real property is not considered as such evidence of tide, as to give the occupant a credit in consequence of it. The party may be a tenant of the lowest grade, or the property may be incumbered beyond its worth, which is often the case, long after the mortgager’s possession continues. The reason, therefore, why possession of goods (which is generally the only criterion of this species of property) after sale, is considered fraudulent, fails altogether when applied to lands.

3d. In Twyne’s case, the gift was made hi secret. This transaction was as public, as matter of record, and a sale at auction could make it.

4th. It was also made pending a writ. This doesjnot appear to have been the case here. A debtor, after suit by one creditor, has undoubtedly aright, where no bankrupt laws interfere, to confess judgment to another, or to give him any other preference or security he pleases. All that appears here, is, that Meeker’s suit was commenced before the third Tuesday of October, 1800, and that the bond to Richmond, was executed the first day of that month, so that the latter may have been prior to any Us pendens against Brownell.

The two last indicia of fraud in Twyne’s case were, a trust between him and his debtor, and the gift’s stating on its face, that it was made honestly, truly, and bona fide. Neither of these marks appear here.

My opinion, therefore, is that no assurance by Richmond, to shew favor to Brownell, or his family, as far as it respected his real estate, or any secret trust or understanding between them, for that purpose, can avoid the judgmént or sale made under it. It will always be borne in mind, that a conveyance was not to be made by Brownell himself to Richmond:, which would have put it in his power to. aliene a valuable estate, for a trifling debt, but that it was. tQ proceed, and that after public advertisement, from ⅞ public, and sworn officer. At this vendue, any one could bid, and his other creditors might have prevented the land selling for less than its value. _ Not having done this, they have no right to complain of the price, or of the indulgence shewn to the former proprietor, or his family. There must be a new trial, with costs to abide the event of the suit.


author: ' Spencer, J. Thompson, J. Livingston,'J. Kent, C. J. Tompkins, J.

text:
    Jean E. Liotard, Daniel W. Crommelin and Benjamin I. Crommelin against John Boonen Graves.
    ALBANY,
    August, 1805.
    If a vessel be destined for a port which is suspected to be blockaded by theJBritish,with directions to call at a particular place for the orders of the correspondent residing at the blockaded port and to whom she is unqualifi-edly addressed, ilis not a breach of duty in him to order the vessel to his own port; and if she be taken in going there, and condemned for being guilty of a breach of block ade, the correspondent, if he appear to have acted in good faith, will not be liable. On an open account current interest is not allowable, unless by the custom of the trade or pviva'ea-' grcemeut.
    •ASSUMPSIT to recover the balance of an account current. The amount of which was allowed to be just, provided the plaintiffs were entitled to compound interest on the annual rests, and had not made themselves liable for the value of a cargo consigned to them by the defendant and George Barnewall. To ascertain these points, the case which had been referred to arbitration by consent, now came up for the direction of the court On the points of law, all objections as to the right of setting off the misfeasance of the plaintiffs being waived.
    From the voluminous correspondence spread before the court, and-admitted as true, the following appeared to bq the facts principally reliéd on.
    Upon the 24th of July, 1798, the plaintiffs received á letter from the defendant and his then partner, Mr. Vos-, dated the 14th of June preceding, which said, “ We have “ found a ship which shall be the bearer of 51 casks, &c. o It is the brig Columbia, which it is thought will sail the u 24th instant. The insurances will be made here, but “ our underwriters would not do it, unless with the clause “ that the war risks shall terminate with the dropping of the “ anchor in the Texel. Therefore be cautious, and take “ seasonable measures to cover us if there should be an open' “ rupture between you and your sister Republic and this' u Republic, which in our opinion is unavoidable. Per- “ haps the concerned will let her run into Hamburgh for your orders, which give in every event to Bout Co, ■ o' for the vessel and cargo are under our direction. Should .<c the one, or the other come to you, prepare yourselves tp o expedite her with all dispatch, with 200 pipes of gin, t£ (preferably from ShhnmeT) and such other goods as we “ shall advise you. If we have any thing in your hands “ be careful, in the name of heaven, to get it out of the “ country before a confiscation of our property may take “ place.” In consequence of this letter, the plaintiffs on the 4th of August, wrote to Bouí £s? Co. thus. “ Messrs. “ Vos & Graves of New-Tork, have shipped on board the “ brig Columbia, SI 8tc. intended for us. From the man* “ ner in which these friends write us, it is possible the ves- “ sel may come to you, but they signify to us positively, “ that the captain must follow the orders we shall give you: “ if, therefore, he arrive in your port, and the winds re- “ main as at present, which circumstance naturally drives “ the English off our coast, you will have the goodness im- “ mediately to order him for this place, where he will enter “ without hindrance, as has lately been the case with other “ American vessels. But for the purpose of your orders reaching the captain without delay, we request you to “ transmit them to him at the mouth of the river, so that he “ may receive them immediately.” These instructions were punctually followed by Bone £f? Co. who, on the arrival of the Columbia at Cruxhaven, forwarded to Weeks, her master, the directions given by the plaintiffs. On receipt of them, Weeks, unwilling to comply with their contents, repaired to Hamburgh (after forwarding a letter from the defendant to Liotard Co.) to converse with Boué is> Co. on the propriety of adhering to the orders, and Bone £? Co. advised waiting eight days, to afford an opportunity of communicating with Liotard Co. on the occasion. This Weeks refused to do, unless Bouí Co. would give him a-written injunction to that effect. They declining to do-this, he, in obedience to the directions transmitted by Bous Co. sailed for Amsterdam, though he knewit to be blockaded, and was, on the 20⅛ of August, taken by a British frigate, and sent into Tarmouth. On the very day of the capture, the plaintiffs received the letter, forwarded to them by Weeks, from Cruxhaven, dated the 30th of June antecedent, in which the defendant and his partner say, “ the brig Columbia, Benjamin Weekst master, with her “ .cargo, bound to your port, we have consigned to you ; “ but from motives of precaution, and with the consent of . “ the underwriters, she will touch at Hamburgh for your 44 orders; Immediately on receiving the present, you arc “ to ascertain, 1st. Whether your ports are in a state of 44 blockade ? 2d. Whether American property will be 44 safe in your port, and on shore, during the Columbia's 44 stay with you. If you have the least apprehension res-44 pecting the latter, or if the former is actually the case, “ the Columbia is to unload and sell her cargo at Hamburgh, “ and your friends must dispatch her immediately for this “ place, with 100 pipes gin, &c. Confiding in your good “ judgment, to act for the best of our interest, we re-44 main,” &c.
    Upon the 21st of August, the plaintiffs wrote to Boué ft? Co. the following letter. 44 We have, since our last, 44 received the honor of your’s, of the lfth instant, by 44 which we learn, with much pleasure, that the ship 6⅛-44 lumbia, B. Weeks, of New-Tork, is safe arrived in your 44 river. We find, that having received your letter at 44 Cruxhaven, he had left his vessel there, and proceeded 44 in person to see you, for the purpose of receiving your 44 orders. That, notwithstanding his disinclination for 44 going into the Texel, on seeing your orders, he prepared 44 to return to Cruxhaven, and try his luck. It would af-44 ford us much pleasure, if he proceeded to enter. How-44 ever, if we had received sooner the letter, last forward* “ ed us from Messrs. Vos c£? Graves, we should, con-44 sidering the modifications therein contained, of their 44 former orders, have requested you to ascertain precise-44 ly, whether he could have proceeded through the Wad* 44 den. If not, you might have procured him other pa* 44 pers, and sent him to the port of Delfziel, taking care to 44 give him a good pilot to carry him there. If, at the re-44 ceipt of this, he shall not have yet sailed, you may still 44 try to prevail upon him, to adopt this measure, which 44 will likewise be proper, in case he happens to be sent off, 44 on attempting to enter our ports. But if you can no ways 44 induce him to do so, then you may unload the cargo, 44 and send it to us, through the Wadden, as soon as pos-44 sible, and we will avail ourselves of the same channel, 44 and send him his return cargo, of which we will give 44 you the particulars. We thank you for the precision “ with which you have executed our orders.” Upon the 27th of August, the plaintiff received from the defendant and his partner, a letter, dated the 29th of the antecedent y«;ze, saying, “ We have the pleasure to inclose a bill of lading 44 and invoice of the cargo of brig Columbia, Benjamin “ Weeks, master, bound to your port, and on our account 44 consigned to you. Please to dispose of the same to the best 44 advantage, and lose no time in reloading this vessel with 44 150 pipes gin, &c. As to the quantity, you may add or 44 diminish so as to make the invoice amount to about 50 44 or 55,000 dollars, and whatever the sales of the outward 44 cargo will amount more, you will place to account, &c. 44 Should the forementioned goods not fill the brig, you 44 may augment the gin. You will be careful to advise us 44 by different opportunities of the probable amount of the 44 return cargo, and the time when she is likely to sail, in 44 order to make insurances here. We inclose a price cur-44 rent for the information of you and your friends, which 44 will enable you to augment or diminish in the quantity of 44 those articles we order, according to the price it bears 44 with you, not losing sight of our intentions to have the 44 Columbia return with a full cargo, and respecting French 44 brandy we have to observe, that we would give it the pre-44 ference to gin, if a pipe of the former was to cost 25 per 44 cent more than the latter. There are 70 shooks of 44 casks, which formerly held gin ; if there is time suffi-44 cient to have them coopered, we would rather have the 44 gin you send, started in them, as it keeps the spirit clear, 44 or you will have it in your power to dispose of them to 44 advantage. Captain Weeks may be in want of some new 44 rigging and sails, with which please to supply him, but 44 let all needless expenses be avoided. Relying on your 44 zeal for our interest we remain, &c.” Soon after this, the news of the capture of the Columbia having reached the plaintiffs, they entered into a long exculpatory correspondence with the defendant, who received from Bout Co. a detail of the transactions, shewing that no blame could attach on them, as they did no more than communicate the orders they received. The whole however terminated in tbe defendant’s claiming irora the plaintiffs on condemns . c . ,. , . . . , , tion 01 the snip ana cargo, their prime costs with charges, giving them credit for the sums received from the insurers America, after deducting law expenses, and debiting them with the amount of the subscriptions of those underwriters who had failed. The right to sail for Amsterdam, though- blockaded, had been acknowledged by the opinion of counsel taken on the subject, and communicated to the parties in the suit.
    It was agreed that the grounds of the sentence of the British court of admiralty, as stated in the case of the Columbia, Weeks master, in 1 Rob. Ad. Rep. 154, should be used as evidence, in the same manner as a regular exemplification of the decree. If the plaintiffs were not liable for. the value of the vessel, &c. then it was admitted the defendant would be entitled to half the amount of certain policies effected by Liotard ft? Co. in Amsterdam, and responsible for advances to Weeks, and other disbursements in London, while prosecuting the claim and appeal there ; but, on the other hand, should they be answerable, it was conceded the policies would enure to their benefit, and the advances and disbursements be at their door.

      Riggs for the plaintiffs contended,
    that they had, under the words of the defendant’s letter of the 14th of June, a general discretionary power over the whole consignment. The going to Hamburgh was for the purpose of receiving-directions whether vessel and cargo, or the one “ or the other’’ should proceed to Amsterdam, and Bow ft? Co. were constituted by the defendant himself, his agent for carrying into effect the instructions Liotard ft? Co. might give. If therefore any inconvenience arose from the manner in which those instructions were executed, it was attributable to Bone ft? Co. the agents of the defendant, and the plaintiffs consequently not liable. To still further prove that it was the intention of the defendant to confer this general authority, his expressioas in the next written letter of the 29th of June might, he said, be resorted to. The vessel is there described as “ bound to” Amsterdam. The return cargo was to be purchased there, and even that, modified according to the judgment of the plaintiffs, “ on whose zeal for their. if, interest the defendant and his partner relied.’’ In order to establish Amsterdam to be the port of ultimate destination, be read from the correspondence, part of a letter from £ • • -fl/4 dated 9th July 1798, saying, “ In conjunction “ with our common friends Messrs. Vos fe? Graves, I have “ loaded the brig Columbia, Weeks, with a eargo of sugar, “ fee» for your address, but from motives of precaution f “ under existing circumstances, we have ordered the vessel “ to touch at Hamburgh for your advice, and trust it will be “ such as to encourage to proceed to your city.” This, he argued, evinced the continuance of the intention to go into the Texel, and though it might be urged that the letter of Barne-wall begs the plaintiffs u to follow the instructions” of the defendant, yet those contained in theirs of the 30th of June _ had not been received, when the orders to Weeks were given. It was fair, therefore, to refer to the words of Barnexuall, as explanatory of the original views of the defendant, in conformity to which, the plaintiffs had directed the proceed--ing to Amsterdam» It was not till after they had done so,, that the qualifying epistle from the defendant came to hand. Of course its contents could not affect the present question. Instantly, however, on its receipt the plaintiffs wrote to Bone S? Co. giving fresh orders, which had in view the bringing to Amsterdam the cargo, without incurring the risk of capture, as, if that could be avoided, the sole interdiction of the defendant, was in case it would not, when there, be safe from confiscation. This active behaviour of the plaintiffs shewed their vigilant attention to the defendant’s interest, and to charge an agent for mismanagement, there must be a violation of positive explicit orders, or a ' gross negligence. But in whatever light the second directions to Bous fe? Co. were viewed, was immaterial, as the vessel had sailed under those first given, and if they were the result of an honest bona fide conduct, Liotard fe? Co. -were exonerated from all consequences. What did ensue might in fact have been prevented, had Boué fe? Co. the nominated agents of the defendant at Hamburgh, duly exerted themselves. They knew of the danger to which sail-jng for the Texel would expose, and yet refused to give the captain a written order to stay, only so long as was peces-sary to consult tbe plaintiffs. This took away from Liotard &? Co. all power of averting the accident, which happened, and, as done by the agent of the defendant, to him, the loss must be attributed. If to the plaintiffs, they are answerable only for prime costs and charges, not for profits. On the point of interest, he said, that in accounts with British merchants, custom had sanctioned the practice here adopted ; it was the constant mode with them to charge interest On the amount of the disbursements of each year, and carry it into the balance they thén struck, which sum, thus compounded, formed the principal, whereon interest was calculated for the ensuing yc ar. Whether this was a usage to be proved and decided by the referees, or a mat, ter of law arising from the fact of so much being due at a fixed time, was for the court to determine.

      Radcliff and Hoffman argued contra,
    that as there was nt> agreement between the parties to shew interest should be allowed, nor usage of trade mentioned in the case, the court must decide the naked question, whether interest were recoverable on asimple account current ? If held to be so in this case, it must be so in all, and to entitle to it, there need not be either a stated or settled, but merely a rendered account. As to the plaintiffs liability, independent of any orders they were reponsible for the amount of vessel and cargo, even under that discretionary power urged in their excuse. It appeared, from the facts detailed, that they were the general agents of the defendant. It was their duty then, to prudently manage the shipments made to them, without any exposition to unnecessary dangers. Common reason would prohibit forwarding a consignment to a blockaded port. It was no answer to say, that the one by the Columbia being addressed to them, was sent to a port so situated. That circumstance was not known to the defendant when the vessel sailed ; the plaintiffs however, were well acquainted with it, as appears from the letter of the 4th of August, to Bout &? Co. and the report of the case of the Columbia, in 1. Rob. Ad. Rep. 154. To enable them to guard against all unknown dangers attending the .entry of the Texel, was the reason why the brig was sent tq Hamburgh for orders. Nothing less, than a positive direct don could justify sending a ship, or her cargo, to a blockaded port; for, the egress is as hazardous as the ingress, The loading taken on board, after knowledge of the blockade, would, by the law of nations, be confiscable. 1 Rob.

       86. 150. It was, therefore, particularly ordered by the defendant, that if Amsterdam was blockaded, the cargo should be sold at Hamburgh, and “ the friends °f “ the plaintiff dispatch her immediately.” This was done to avoid the penalty on taking aboard a cargo from Amsterdam. After receiving this prudent direction, what is the conduct of the plaintiffs ? They, as much as in them lies, violate their orders, and write, requesting the captain to be persuaded to attempt reaching their port, by indirect means, and if he cannot be induced to that, to have his cargo forwarded to them, that they might sell and make the returns. Thus encountering the very risk the defendant meant to shun. The inference is, that the possession of the cargo of the Columbia, and the commissions of what she would take back, actuated the plaintiffs, to measures so evidently, in all aspects, opposed to their duty, and the interests of their correspondence. We contend, therefore, for their liability, not only to the amount of vessel and cargo, but for the profits which might have been made.

      Benson in reply.
    The manner in which this account is made out, is in itself, a proof that such was the custom between the plaintiffs and the defendant. It is, therefore, from the fact thus appearing, a matter of law, whether interest be due or not. Under the general discretionary authority conferred on the plaintiffs, nothing less than a fraudulent act, or that crassa negligentia, which amounts to fraud, would make them responsible. This flows from the nature of the bailment to the plaintiffs. Besides, their orders were only in aid of the design of the defendant, to send the Columbia to a blockaded port. It cannot he argued, that it was unlawful for Liotard Of Co. to direct the cargo, or the vessel, to go to Amsterdam, because the case of Vos ⅞? Graves v. The United In. Comp,

       has decided that, under our treaty with Great Britain, the defendant himself was warranted in sending the Columbia for that port, as, till warned not to enter, she had a right to make tlie attempt. If the act was legal in the principle, it certainly was so in the agent. It matters little with us, therefore, what is the English law on the subject of an American’s right to sail to a blockaded port; and, since the decision of Williams v. Smith

       if the obsidiary fleet be blown off, the neuter has a right to enter. The orders, therefore, of the plaintiffs were strictly lawful, and though an accident has occurred, yet as it was in endeavouring to comply with directions, the plaintiffs were authorized to give, and did bonajide communicate, no liability can attach.

       The Frederick Molke.

        Vrow Judith

       1 Caines' Ca. in Error, vii.

       2 N. Y. T. R. 1.

   ' Spencer, J.

The questions submitted by the case are, 1st. Whether the allowance of interest is a question of law, and if so, whether thejjplaintiffs are entitled to it. 2d ? Whether the defendant is liable for certain monies paid by the plaintiffs in London, to B. Weeks, master of the brig Columbia l 3d. Whether the defendant is entitled to one half of the amount of insurance, made by the plaintiffs on the cargo of the brig Columbia, or to what part thereof ? 4th. Whether the plaintiffs are responsible for their default or 'mismanagement, as agents or consignees, in relation to the capture and condemnation of the said brig and cargo, so far as respects the one half thereof, owned by the defendant?

The question of interest is a question of law, depending on facts. In the present case, the facts are presented in ,such a manner, that, without applying the law to them, I shall content myself by laying down principles, and leaving the arbitrators to make the application. For goods sold and delivered, unless there be evidence of an agreement to pay interest, none is recoverable, until a liquidation of the account take place. If an account be transmitted by a creditor, and acquiesced in, or assented to by his debtor,it becomes thereby liquidated, and interest is allowable. .On money advanced, interest is legally demandable. By the usage of a particular trade, interest may be allowed ; and if it is customary to allow it to Amsterdam merchants after a specific time,, and that custom is generally understood, it may be due in the present case. These observations may enable the abitrators, on examining the facts, ta ¡decide the question of interest,

Thé second question, I understand to be substantially this. Whether the charges in England, in prosecuting the claim for a restitution of the brig and her cargo, are to fall on the plaintiffs, or the defendants t This is dependant on the fourth question. For, if the plaintiffs have rendered themselves liable for the capture, then they ought to bear the espences as an item of damage ; otherwise, not.

The third question too, rests on the same” result. The goods were acknowledgedly insured by the plaintiffs, for the concerned in that brig. If the plaintiffs are not answerable to the defendant for the whole amount of the property, on the ground of mismanagement, then the defendant becomes entitled to the one half of what has been recovered from the underwriters in Holland, with an allowance to the plaintiffs, for their commissions.

The fourth point embraces the great object of the controversy.

If the position laid down hy Sir William Scott, in eon-demning this vessel and her cargo, were to be regarded as law here, I should consider the plaintiffs liable for the injury sustained by the defendant, because they directed • the captain, who was consigned to them, and bound to obey their orders, to do an act imminently endangering the property intrusted to their management, and this, obviously contrary to the defendant’s intention, manifested by his sending the vessel to Hamburgh, a neutral port, to await orders, and be governed by circumstances, rather than to Amsterdam, a port of one of the belligerents. There would have existed a want of skill, or actual infidelity to the interests of the principal, amounting to gross negligence or fraud, in either of which cases, a liability to the constituent would be created.

The judge I have mentioned, considered, 1 Rob. Ad. Rep. 156, that the sailing from Cruxhaven, with an intention of evading the blockade of the Texet, was a beginning to execute that intention, therefore an overt act constituting the offence, and that, from that moment a the blockade was fraudulently invaded.”

, The court for the correction of errors, in a question between the now defendant, and Gravess and the United Insu- ranee Company, held the Insurers liable for the .capture and condemnation of the same vessel, and decided, that the brig Columbia, having only an intention of entering the Texel if the investing squadron .should be blown off, and having been captured before she arrived at the mouth of the river, and had attempted to enter, was not liable to ron-damnation ; on the principle, that intention is not a ground of judicial animadversion, and that nothing short of an ac* tual attempt' would warrant a forfeiture.

I hold myself bound by the latter decision ; it then necessarily follows, that the sailing of the Columbia, from Cru.xhavenj with an intention to enter the Texel, was ap. innócent act, and if it was, the plaintiffs cannot be consul, ered as responsible for any injury in the prosecution of such act. I cannot,proceed on any speculative reasoning, as to what might have happened, in consequence of the' plaintiffs5 orders, had. not the vessel been captured as she was. The gravamen is this seizure and condemnation, which has been pronounced in the last resort, as illegal and unjust. It manifestly appears by the case, that the plaintiffs acted in good faith, and under an idea that the Columbia having sailed before the blockade was known, was entitled to notice, and to be turned.away. They also conceived, that if the investing squadron was blown off, she might lawfully enter; they cannot, therefore, on any principle, be liable to this claim.

Thompson, J.

This cause involving the examination of long accounts between the parties, has been referred to referees, but as the result, with respect to some of the items, depends on questions of law, those questions are submitted to the determination of this court, that the examination of the referees may be regulated thereby.

The principal question relates to the conduct of .the "plaintiffs as' agents for ’ the defendant, respecting the brig Columbia and her cargo, of which the defendant is to be considered as owner.

Under the circumstances of the case, it is made a question, whether the consignees acted with that reasonable caution and prudence, which they ought to have done. It is not pretended but that they knew of the blockade, and they might have been chargeable with gross abuse of their trust, if there had not been reasonable grounds to calculate, that the vessel might have entered, notwithstanding the blockade. They knew that had been the case with respect to other American vessels, and from the state of the winds, they expected, the blockading squadron might be drove off the coast, so that no blockade in fact would exist, so as to expose the vessel to capture and condemnation, within the rules adopted by our courts, until she had proceeded so far as to find an actual existing blockade. The consignees knew the vessel was bound to Amsterdam, the cargo intended for that place, and insurance made to that port. Under such circumstances, I cannot think the plaintiffs chargeable with gross inattention to the interest of their principals.

The subsequent orders contained in the letter of the SOth of June, cannot affect the question, not having been received at Amsterdam, until the 20th of August, which was the very day the brig was captured, as appears by Robinson's report of the case. Had this letter arrived in due season, it would have been the duty of the agents, at all events to have stopped the vessel, and unloaded her at Hamburgh. The orders are positive to unload there, if Amsterdam should be blockaded. This letter also contains the first information the plaintiffs had, that permission was given, by the policy, to touch at Hamburgh. The next day after the receipt of this letter, containing, what they deercij a modification of their orders, they wrote Bouc &? Co. countermanding those previously given, and directing diem not to send the brig to Amsterdam, unless she could come through the Wadden, where, it appears, she 4wouId have been out of the reach of any British armed vessels. But this letter arrived too late, for captain Weeks had actually sailed, and was captured before this time. The plaintiffs are not chargeable with want of due diligence, in countermanding their first orders given to Roue £s? Co. It was done the very next day, after receiving instructions from their principals, which made it proper so to do. The letter of the 30th of June, then, and all subsequent correspondence, ought to be gut out of view, and the whole merits of the question will .depend on the instructions contained iu the letter of the 3d of June, and the orders given by the plaintiffs to Boué fe? Co. in consequence thereof, on-the 4th of August. I .consider the plaintiffs, therefore, a3 agents vested with general, and discretionary powers, and, as such, cannot be said to have violated their order& If made liable at all, it must be either for gross negligence, or fraudulent conduct. I see nothing whereby to- charge them on the latter ground; and if they, rather unadvisedly ordered the vessel to. Amsterdam, when it was blockaded, it would not, under all the circumstances, be deemed any thing worse than an error of judgment.

, I think, therefore, that the plaintiffs- are not chargeable with the loss of the vessel and cargo ; and they acting, in the capacity of agents, in the advances- made to captain Weeks, the defendant is bound to reimburse them. Theré can be no doubt,- but that the defendant is entitled to the benefit of the insurance made in Amsterdam, upon the cargo in question. With respect to interest on the plaintiffs* account,, it appears to me, they had a right to. chargeit oh the money advanced. The account cannot be considered as settled, and on that ground carrying' interest. It is merely an account current between the parties," and unless some usage, or practice is shewn, to warrant the allowance, I should think interest ought not to be calculated, except on the money advanced. • •

Livingston,'J.

This is a case of importance, and has been argued with much ability and zeal.' The question of greatest difficulty, is that, which regards the plaintiffs’ lia.bility. An .agent, who acts under positive orders, must, at his. peril, pursue them literally. It is not less’ evident, • that a factor, .who is not particularly instructed,’ but ⅛ whom a discretion is vested, is entitled to protection, bo long as he acts according to the best of his judgment, arid is innocent of fraud and gross abuse of the confidénce placed in him. If a loss ensue from mistake of error of ■ judgment, where there is no lata culpa or crassa negligenúa, his principal, and not he must bear it : were it otherwise, no prudent man would accept a trust of the kind ; and a ’ merchant, however distant from the «cene óf action, v/ou^d be obliged, at a great hazard, to give positive directions, instead of reposing on the intelligence of a correspondent, who might take advantage of circumstances, which were-neither contemplated nor foreseen by himself. The same rule must govern where language, equivocal or doubtful be used ; for nothing can be more absurd or unjust than that a man, whom an accident befalls, in consequence of a loose or ambiguous phraseology, should resort to an agent for indemnification, when by a moderate portion of care, he might have rendered himself intelligible, and prevented a loss.

The defendant’s letter of the 14th of June-, 1798; provided only against an “ open rupture between Holland, “ France, and the United States.” ■ It did not embrace the case of a blockade, and was inexplicit or silent on «very other point. In what respect then, were the plaintiffs’ orders of the 4th of August, which arose-out of this letter, and which, as is alledged, occasioned the disaster, a violation of any instruction which it contained ? No other meaning can be extracted from it, than- that the plaintiffs, if the vessel touched at Hamburgh, were to order her to Amsterdam, if peace continued ■ between the Batavian republic and this country. - If they had a right to direct her to stop at Hamburgh, in case of. blockade, which may admit of doubt, they were sole judges, being uninstructed on this point, of the degree of danger which would render such measure proper. If they had undertaken to arrest the Columbia in her voyage, but in th.c event of a war, and a loss had followed, might they not have been called on for their authority, and found it difficult to defend their conduct ? But admitting, that, as general agents, if such they were, they had this right, they were not bound to exert it, unless in their opinion, the defendant’s interest would be promoted by the adventure’s terminating at Hamburgh. The reason they assign for a different conduct, would probably have influenced the defendant himself. They were encouraged to this step, because several other American vessels had arrived, and they might have supposed, as it appears they did by one of their letters to Bov.é Sk Co. that the worst that could happen from the blockade, was the Columbia's being sent away for an attempt to enter, and a small delay in' her return to Hamburgh. That the British had no right to capture, without a previous warning, has been settled by our court for the correction of errors, in an action against the ■ assurers of this very vessel, who contended that their responsibility was at an end, by this breach of blockade. Sir William Scott had • condemned the Columbia, although she had not been turned away, deeming such ceremony unnecessary, where the merchant or his agents had acquired notice in fact, even during the voyage, of án existing blockade. On the ground however of this judgment^ (which was not regarded as conclusive between the assured and the assurer) being-contrary to treaty, it was detdr-mined, that sailing for a blockaded port, with knowledge of the fact, was no waiver of the right of being notified,' and once turned away. When at the bar, I had occasion to examine the grounds of this sentence, and although, no one holds in higher estimation, the talents and integrity of the eminent character who pronounced it: my conviction has ever been, that it was not warranted by the treaty of London, or the law of nations. Admitting the blockade known in America, it did not follow, that sailing for Amsterdam, indicated an intention to break it. It might be raised before the Columbia arrived in the Texel, or if not7 the master might be instructed to go elsewhere. If such intention existed, why shall mere intent in this case, more than in any other, amount, as SirJVilliam terms it, “ to an u overt act constituting the offence ?” As well might a design to poison, .be called an overt act of murder. But when it be recollected, that the owners were ignorant of the blockade, and their intentions of course innocent, this-confiscation cannot but be viewed, as a very heavy penalty for the mistake of a master or agent. Nor did the notice received in the Elbe, justify the proceeding ; for, the investment of Amsterdam not being known in New-Tork, when the vessel sailed, it was a case within the letter of the treaty, She might proceed, notwithstanding any intelligence obtained on the way, which might be incorrect, until wapnecj. away by one of the blockading squadron, and nothing short of a second attempt, should have been deemed a violation of the belligerent rights.

■ As this judgment is made part of the case, with a view to the plaintiffs’ prejudice, these remarks on it will not be thought impertinent, especially if they assist in forming a proper estimate of the risk of a voyage from Hamburgh to Amsterdam, or tend to shew that, in giving the orders in question,, they did nothing illegal or which justly exposed the property to forfeiture. This must have been their understanding at the time, and probably the same opinion prevailed in Amsterdam, or insurance would not have been effected there at so moderate a premium. This ground too, was taken by the defendant and his partners in the actions which were brought to recover the insurance on this voyage, and they ought not now to be permitted to abandon it.

. Some stress was laic! on the letter of the 50th June, 1798, which contains a direction to unload at Hamburgh, if a blockade actually existed” — -but not being received, until after all the mischief had happened, by what rule of right is the plaintiffs’ conduct to be judged by it ? Does it not rather prove, that the owners of the Columbia, thought a positive instruction on this point necessary, to justify the plaintiffs in adopting this measure ?

Bui admitting a discretion in the plaintiffs, it is contended they acted wantonly, or with gross inattention to the owners’ interest, and that they had nothing in view but their own advantage, being determined, at all hazards, to obtain possession of the property.. In support of this alie-gation we are referred to their letter of the 25th August, to Bout & Co. directing the cargo to be sent on through the Wadden, contrary to their instructions, which were to sell it at Hamburgh. If In consequence of this letter, a loss had occurred, the plaintiffs would have been responsible, but that not being the case, and as it might, for ought that appears, have been greatly for the defendant’s benefit; to have the cargo sent on to Amsterdam by the interior navigation, and one in return provided there (for'we are in the dark as to the then state of the márkéts at Amsterdam and Hamburgh) we cannot say this step was ■not' intended for the defendant’s benefit. It can hardly be supposed that a respectable house, for the paltry consideration of a commission, would sacrifice, or expose to unnecessary perils the property of their principals. Nor will it be charitable from an act, doubtful at most, to draw in question the integrity of their conduct prior to this time, particularly, when we perceive with what alacrity their orders were countermanded on receipt of the second letter. It was also stated, as further evidence of the plaintiffs’ misconduct', that if the Columbia had succeeded in reaching Amsterdam, she would have been good prize if captured in coming ou t. But if she had a right to,go. in, as I think she had, unless warned away, and she received no such intimation from the surrounding squadron, it is by no means clear, that the British could ■ rightfully have prevented her egress. Being then of opinion, that no.liability has been incurred-, it is unnecessary to settle a rule of damage, or to enquire how far the subsequent conduct of the defendant and his partners, amounted to a confirmation of the acts of their agents. On the latter point, however, it may be remarked, that they did not discover, that early disapprobation which agents, who have mistaken or exceeded their instructions, have a right to expect. A merchant should not be permitted to conceal his dissatisfaction, and thus retain .the power of taking advantage of events. On the 2?th October, 1798, when the blockade of the Texel, as well as the order now complained of were'known, Mr.Barne-zvall, in a letter addressed to the plaintiffs, expresses a “ hopé “ that they have received the cargo,” without intimating the smallest dissatisfaction At their conduct,- or any apprehensions on Account of the blockade. It is not until six months after this last'letter,:and as many as ten after the capture, and not until-thz'Columbia!s fate were known, that the concern complain-of the-plaintiffs, without even then giving any explicit intimation that they will be regarded as answerablfe for consequences. - On the same day, they write at some length to their correspondent in London, and although they review the conduct of all the parties in this transaction, they throw no blame on the plaintiffs; but, on the contrary, Attribute the misfortune to the captain, who refused to wait eight days in tlie Elbe, “ within which time,” say they, “ positive instruc- “ tions arrived from Holland to unload at Hamburgh.” They also approve of the appeal, and beg to be made acquainted with the progress and probable amount of charges. The underwriters too are sued on their own account, and without consultation with the plaintiffs. From this conduct, the inference is fair, that if the parties did not approve of the plaintiffs’ proceedings, they did not think themselves entitled to look to them for an indemnity. They would otherwise have preferred an immediate recourse of that kind, to a tedious and expensive litigation in the British admiralty, or to the very uncertain issue of a controversy with the underwriters here.

With respect to the question of interest. If there be no special agreement between the parties, or usage of trade between Amsterdam and New-Torh to the contrary, it ought to be allowed on all monies advanced from their respective payments, and on the goods supplied, after such time as is conformable to the course of trade between the two countries. One account was rendered as early as in 1797, in which interest is calculated, and yet no objection was made to it in the succeeding correspondence, from which I conclude, such charge consisted with the understanding of the parties.

Upon the whole, my opinion is, that under the letter of the 14-th of June, which was silent as to the case of blockade, the plaintiffs had a discretion to act in such an event, as in their judgment they thought best for their employers’ interest. That if they acted fairly, and under a sincere belief, as I think they did, for there is no evidence to the contrary, that the Columbia would probably reach Amsterdam in safety, or only be sent away and return to Hamburgh, they are not answerable for her unjust condemnation, nor for any damages in consequence of their conduct in the premises — that they are entitled to interest as charged, unless it shall appear to the arbitrators, to be contrary'to agreement or to the known and established custom of merchants in Amsterdam, trading with this country. That the monies advanced to Capt. Weeks, not appearing to be extravagant, or to have been expended for his own use, form a proper item against the defendant, who in turn is entitled to a credit for one ;hálf of what has been received by the plaintiffs from the insurance effected in Amsterdam on thp cargo of the Columbia, -with interest thereon from the time of payment.

Kent, C. J.

The principal question of law arising in this case is, whether the plaintiffs are responsible in the character of agents or.consignees, for default or mismanagement in' ordering the ’ Brig „Columbia, and her cargo from Ham-burgh to Amsterdam ?

It is unnecessary to examine the volume of correspondence between the parties, annexed to the case, because the whole question turns upon the orders of the 4th August, as founded upon the instructions of the 14th of June. No others had reached the plaintiffs on the 4th of August. The subsequent letters are no further material, than as an exposition of the original intentions of the parties. From them it appears beyond all doubt, that Amsterdam was the ultimate and original port of destination, and that touching at Hamburgh was only intended as a precaution, to await the ' advice of the plaintiffs. As they were left in the first in-stance, and until after the 4th of August, with unqualified, absolute discretion, they were only bound to act with good faith,, and with diligetice, as they should judge most conducive to the interests and expectations of their principals. An agent with general discretion is no further holden. 1' Beaxues 44. Jones on Bailment, .75. % L, Ray, 918. Under the circumstances attending the order of the 4th oiAu-gust, I do not consider it an abuse of trust, for.which the’ plaintiffs are responsible. They knew the destination of the.' vessel and cargo, and that, in every event, they were to give orders to .Bout: & Co. They ’assert, and we are to take it to be the- fact, that American vessels had lately entered without hindrance,, and we perceive from the case, that the opinions of counsel here, were-that the vessel had a right to make the attempt, and.could only be turned away, under our treaty with Britain, for making the first attempt. The plaintiffs, gave their orders with a qualification, that “ if the winds u should continue variable, which naturally drove the Eng-. “ lish -off .the coast,” they may not have acted with f r?.gi wisdom, or'.prudence; but .if they gave those janless «h honesty, and as they thought, for the interest of their principals, they are excused, and the defendant has only to blame himself for giving an indefinite discretion.

The determination of this question puts an end to two other points that were raised upon the argument.' The 'insurance effected by the plaintiffs in Holland, was for the account of Vos & Graves„• the defendant is entitled as of course to credit for one half of the amount of that insurance, and is liable to the charges for monies paid to Captain Weeks in London.

The only remaining question is, as to the legality of the . charge of interest in the plaintiffs’ account. The account', exhibited is not an account liquidated, but a nakéd account', current, and interest is allowable only on such items in it, as' are made for monies advanced, except the usage of the trade ) has provided some particular rules on the subject, and which : are to be submitted to the referees to determine.

Tompkins, J.

I concur in the result of the opinions given, 1 and to detail my own reasons, would be only to repeat' what my brethren have said.

       8vo. E.


author: LIVINGSTON-, j.

text:
    Thomas Tom against Paschal N. Smith.
    ALBANY,
    August, 1805.
    ASSUMPSIT upon a policy of insurance on the profits of the cargo of the Mary, from Batavia to New-York, valued at six thousand dollars.
    In the prosecution of the voyage insured, the vessel experienced such violent weather, as to be under the necessity of bearing away for Saint Christopher’s, where, after a regular survey under a warrant from the admiralty, she was found to be irreparable, so as to carry on her lading, except at an expence of more than half her value. In consequence of this, as the revenue laws of the island forbade shipping the cargo in any other bottom,- it was sold at much about the same price it would have yielded in New-York, and produced on the amount of the sales, a considerable profit. Without being informed of this latter circumstance, the plaintiff, on receiving advice of the being obliged to make for the port of necessity, communicated it to the underwriters, and, on the 5th April, 1199, offered to cancel the policy. The proposition ivas accepted by some, but refused by tbe defendant. In tbe June following, the Mary arrived, bringing with her bills of exchange for a part of the property sold, and the re~ sidue in rum and molasses, in which it had been invested by the plaintiff’s agent, who was also part owner of ship and cargo. On arrival, the rum and molasses were taken by the underwritten and disposed of, but produced considerably less than they cost. The hills of exchange, were ** * ^ ^ not more -fortunate; for several of them, after being re. turned .and renewed, were finally unpaid, and on 'the whole, a loss was ultimately sustained. . ,

      Profits are insurable eo nomine. If profits only be insured, an a-bandoument is necessary; when there has been no insurance on the cargo, and in such case it must be made early, that the insurer may e-iect either to pay only his loss, or to pay that, and the price of goods, at first cost and charges, therefore .if the assured lie by, and take his goods and sell them, he cannot af-terwards call on the under-loss on the profits. But whe-úins rule will apply between different writers on”cargo and profits quere.

    , In the- latter end of November 1800, the plaintiff, in consequence of a decision of this court, on an insurance of profits on the same voyage, claimed for a total loss; and, on the 6tit of August 1802, made a, formal abandonment in wriiting,
    . Interest,, inability to- proceed with the original lading, and subscription being admitted, the plaintiff to substantiate bis demand adduced an account of profit and loss oq the cargo of the ship Mary, in which the net amount of the cargo sold st St. Christophers, after deductingcommis-sions, freight, insurance, aiid ¿11 other charges, was credited and the loss of the bills of exchange, and produce received in payment, were debited'.
    ■ Upon the above, facts and statement, a verdict .was taken, for-the-plaintiff, for 657 dollars 50 cents, being- the amount-of the defendant’s right with interest, from 30 day safter, the 5th of April, 1799, subject to tbe opinion qf the court, whether the total loss and interest, from the above period, could be recovered ? or whether the interest ought to commence only from the date- of the abandonment ? or whether judgment ought to be for the defendant? The entry to be modified accordingly, and either party to he. at liberty to turn the case into a special verdict. - .

      T. L. Ogden for the plaintiff.
    We contend, 1st, That the voyage as to goods, having been defeated, ve are entitled to recover as for a total loss of the profits. 2d. That in an insurance on profits, no abandonment .is necessary. 3d. That if necessary, the abandonment is good,.-as, when it was made, the loss continued total,. 4th, That interest, ⅛ due from the expiration of 30 days after the notice of loss given to the underwriters.
    The recovery depends on the arrival of the goods1; for 'if they reach their port of destination, though they coiné1 to a losing market, the underwriter is exonerated. -It 13 admitted the voyage was defeated, from the irreparability of the vessel. If so, the right to recover attached. The question then arises whether an abandonment was necessary ? CJn this point the nature of the policy will serve to guide. An insurance on profits, is a'kind of heterogeneous contract, participating in the qualities of a wager,' and of an interest policy. 'Of a wager, because -at the time of subscription, there is no interest existing; of ¿ñ interest, because there is a contingency on which it will arise, and these futnre possibilities the law permits to he Insured. Some of the rales which govern on wager policies, arc equally applicable to those on profits. 'There can be no average loss, nor can there be an abandonment; Because the profits are inseparable from the goods. When they are insured, they, on abandonment, go to the finder-' writer on them, who runs the risk of losing by their sale,' and' therefore has a right to retain what may he gained. This shews the necessity of making the arrival, the'criterion of the right to recover. It is admitted that the goods did not arrive, in consequence of the inability pi the ship to perform her voyage; it follows therefore that a total loss accrued; and, though it was but technically so, still an abandonment could not be necessary, because it could give no control over the goods, and conveyed no property, or interest in them. To abandon therefore was perfectly nugatory. If a loss continue total to the time of action ' brought, in no case is an abandonment necessary, to entitle to recover the foil amount of the insurance. Earle, v. Shaw.

       If it be not total, then indeed, indemnity fora F rtial tO} all that can be demanded. To ascertain whether the loss be total or partial, we must look to the final result. If that be done here, it will be seen not only ' that the goods never arrived, but that an actual loss on the sales has been sustained. This is established by the ae-eount which was exhibited. The only question then will be, from what period ought interest to be calc.u-dated ?. As abandoiiment was needless, the right to com■pensation arose on the expiration of 30 days after demand, the verdict is therefore correct, and ought to stand. Pendleton and Harison contra. By the decision of Ab^..bott v. Sebor, this court settled that an insurance on profits, was an interest policy. Such it must be, because' in .England, insurances of this sort are permitted.' Le Cras y. Hughes, Marsh. 84, Grant v. Parkinson, Ibid 111. If 3.0, an abandonment was necessary, for whenever the property remains in specie, it exists, unless in the hands of a captor, in the nature of salvage, and must therefore, as a .valuable interest, be relinquished to the -Underwriter. Without denying the doctrine of Earle v. Shaft), we say it .does not apply,, because the assured here, has meddled >vith and assumed a disposition of the property. ■ This case then is exactly within the principle of Mitchell v. Edie, 1 D. ¡X E. 60S. and Allwoodv. Henkle, Park, 112. The plaintiff has traded on the subject of insurance, After remitting, renewing, and receiving damages on seine of the bills, he comes on the underwriter for a-total loss, because a. part of them have proved bad. We contend this policy is on the incident, and that the plaintiff takes to it, by .choosing to retain the principal, The court cannot tolerate the idea, that after an insurance on profitsUo'wó-minc, the.assured shall, at the port of necessity; receive them, and after, managing them in his own way, demand a total loss, because they ultimately turn out deficient, if the determination is to be regulated by -the rules which govern wager policies^ there cannot be a recovery, as the vessel did arrive.' It is no answer to say, the policy was on profits. In Kulen, Kemp v. Vigne, 1 D. SC E. 304, the assurance was on the cargo, but as the ship did arrive, the court held the underwriter would, allowing it a-wager policy, have.been exonerated.. ■ ■■ - - . *■ ■ ■■
    . Iloffffian. in .reply.
    In ;Eentp v. Vigne, the insurance* was expressly,on. the arrival- ofthe’ship; not bf the goods.' On- the .point of abandonment, -it is sufficient to observe-, • that when a. démand was made for a; total loss; the insurer' had it in his power .to make- it equivalent to abandoning1,'! by paying his subscription. ¡-, It is a misftafcedo Say,’'tbe: profits have. been, diminished by- trading on 'themi'--' -The: actual proceeds-of-the cargo sold, that which was given for it, has been realized, and credited to the underwriter. Upon this principle even, there is a total loss. Therefore, whether the malting a profit, or the arrival of the goods is to be the criterion, there must, be-a recovery, for neither one, nor the other has happened.

         April, 1805. See 2 Vol. 208.

       See Church v. Bedient, 8. Hallett v. Peston, 1 Caines Ca. in Err. 24 to 43.

   Per Curiam, delivered by

LIVINGSTON-, j.

It is -hot made a question, whether profits are an insurable interest. Whatever objections lie to, the practice, we 'hávc heretofore considered them as such', and the counsel of both parties have reasoned on that supposition. In 'France nothing but ship and cargó are regarded as proper subjects of insurance. In England and ill this country, it is not' unusual to' insure profits, eo nominé, arid •yet no decisions are to be found on the construction or effect of such policies. We are at liberty then to' adopt Such rules, not inconsistent with the written contract, as shall render them as little as possible of the gambling hind.' Under no pretext indeed can they be called wagering policies, which exclude all idea of interest in the assured. It would be hard therefore on the underwriter, to rank them in this class, and thus deprive him of the benefit of salvage. A premium on profits is not greater than on goods, and yet it. certainly ought to. be muds higher, if a total loss may be demanded, without any part of the profits-, however considerable, going to the underwriters. It is more, equitable to consider these-insurances as a species of valued, policies on cargo, which they are- in substance, although not • in form. It is sur--prising, that in a country where merchants- may insure’ their adventures at almost any valúe, this practice should-ever have been introduced. The more the subjects of insurance, on any ene' voyage-are-multiplied, the-more-confusion and embarrassment will, in -cases of disaster, be experienced. - It will-often. perplex the most skillful broker so to adjust a loss,- -as-to-do.justice to -the -different-' classes of underwriters. T am-disposed,, therefore, to re-'-gard these-insurances as another-why.cf valuing the goods, and that ⅛ -total -losses- like -the present, the underwriter has such-an-interest in. - ■ th s ■ prop er ty, as tobe-e».t¡íled to an .-sfer.dc-nmeat'. -Whatwould •■be’v-the 'effect: of abandonments to the respective underwriters of Cargo and profit, I will not undertake to say. Perhaps on tendering an indemnity, the former might be obliged to cede their interest to the others, or to account with them for the profits, but here, being no abandonment of the cargo, this difficulty is not before us. We are only to determine whether as between the owner of cargo, and his insurer of profits, it is reasonable to permit the'former to manage the property, as he pleases, and at a period even so distant, to call on the latter for a.total loss. If an abandonment be necessary, as. I think it is, the one, on which the plaintiff relies, was not in time. So .far. from giving any intimation of such design, he takes back: the premium from several underwriters, and as to them.; cancels the policy. He then proceeds by his agent to sell the cargo, takes bills in payment on which there is a. loss, and- finding, he has not made ,out to his wish, calls ' on the defendant’s for the whole amount of their sub-' scription. This case does not fall within the reason of' those in which it has been settled,: that an abandonment is never too late while the loss continues total. Perhaps-' it would have been better in all cases, to drive the assured to. an early election, whether he will abandon or not,-' and not leave it ih his power, as it now is, to run thé " underwriter to-an immense expense, in attempts to re'co- -- ver the property for his own benefit, and then throw it' upon' him, when he can no longer take any one step that' may be of advantage : but in opposition to the positive1; regulations'or" practice of most maritime countries, and df England among qthers, where abandonments must -be' made 'within ' a reasonable time' after notice of loss, -we; permit' the assured to lay by for years, in case of a cap-"; ture or other technical total loss, provided'the capture or" ether accident continues. In these cases, however, the property is out of the hands of the assured, who is pursuing measures . to recoyer it; but it is.different here, where the loss properly speaking, was never total. The cargo was not, as in case of capture, taken from the owner. On the contrary, he chuses to treat the loss as partial — he directs a sale of it on his own account, and finally abandons, but not until after a lapse of three years, when in fact there is nothing- to surrender, but what he has al-i • , , . ’ TT1 . , , ready received, and means to retain. Whatever might nave been the claim of the defendant on the insurers of the cargo, if an abandonment had been made ,to them (on which my opinion is reserved) I think as between him and the owner, he had a right to pay the first cost of the goods, with all the charges and profits according to valuation, and on those terms to insist on an assignment. To enable him to assert this right, there ought to have been a seasonable abandonment, which, notwithstanding the decision just referred to, should always bé made, as soon as possible, where the disaster, as was the case here,' is of. such nature as not to divest the assured of his pro^ perty. This is a case of some novelty, on which precedents throw little, if any light. It is very probable, therefore, that my view of it may be incorrect, but after, mature reflection, I cannot come to any other result, satisfactory to my own mind. If wrong, the precedent will not work much mischief, for it cannot be long before underwriters, in this State at least, discover the folly of insuring, unless at a very advanced premium, either profits or freight. The latter, it has already been determined, or at least so much as is earned, even during the voyage insured, after abandonment of the ship, goes to her underwriters, and if profits on goods, in like cases, should be adjudged to belong to the assurer of that subject, there would be none, or very little salvage in either case, so that while the underwriters on ship and cargo, would be receiving enough, and perhaps more than enough, to reimburse them, those on profits and freight may pay a total loss on the same voyage, and not receive a farthing from.the|subjects insured. Our opinion is that the de-iendants have judgment.


author: Livingston J.

text:
    Noah Weed against Caleb Ellis.
    DEBT on an arbitation bond entered into with the plaintiff, by which he, as guardian of Eber Weed, submitted to three indifferent persons, all things relating to a suit brought by him, in the same capacity, against the defendant for assaulting and falsely imprisoning said Eber Weed. Plea, nul agard; to which the plaintiff replied, setting forth an award, reciting that they, the arbitrators, being “ named “ by and between Eber Weed, by his guardian, Noah Weed, “ of, &c. and Caleb Ellis, of, &c. did award, that Caleb Ellis “ should pay to Noah Weed, guardian of Eber Weed, the sum “ of $H2, and each settle with his own witnesses,” with the usual averment, that the defendant had not paid. Demurrer hide, shewing for cause; 1st. That there was no proferí of the award. 2d. That it was without the submission. 3d. That it wanted mutuality; and, 4th. That it was not final,

      Henry in support of the demurrer. As to the proferí, no great reliance ought, perhaps, to be placed on that: but, as the award was under seal, it would seem necessary to make ⅛6 same proferí, which is required in pleading other instruments of a similar description. On the second point, it is to be observed, that the bond is in favour of the plain- ... . . tiff individually; the defendant is bound to him personally; and the submission is, “ by the said Caleb, and the said “ Noah, guardian as aforesaid,” yet, the recital of the award states it to have been made by persons named “ by “ and between Eber Weed, by his guardian, and Caleb Ellis.” The infant does not submit. The recital, then, is plainly of an award not warranted by the submission. -This is fatal; for the one must be according to the other. Kyd, 273. There is also a total want of mutuality. The payment of the $112, is to Noah Weed, without a single act to be done by him; and it cannot be said that the money infers a release, because the rights of an infant cannot be submitted. He is not concluded; for he may, the very instant he is of age, disavow all his guardian has done. Therefore, it cannot be final. For the necessity of an award being mutual, Kyd, 218, 259, 260.

      NEW-YORK,
    Nov. 1805.
    The guardian of an infant may submit to arbitrators on behalf of his ward, and a performance will be a bar to a suit by the infant when of age, for the same matter.

      Woodworth contra.
    The replication sets out the award in hcec verba, and therefore supersedes the necessity of a pro-ferí. Though an infant’s rights cannot be disposed of by his guardian, yet there is such a general control over them, that they may be submitted to arbitration. In Roberts v. Nezvbold, Comb. 318, the very thing was done, and in 1 Com. Di. 537, the same doctrine is recognised. At law, the guardian in a suit, is the protector of the rights of the infant, and may bind himself that his ward shall perform. In an action by an infant, his guardian may receive the money recovered, and give an acquittance for it. He is the mere instrument though which the infant’s claims -are satisfied; and therefore, the award of a sum of money to him, it being for the benefit of the infant, is good. 1 Com. Di. 543. Nay, an award of money to a third person is valid, if it appear that the parties submitted for him. Bird V. Bird, 1 Salk. 74. Certainly, then, it must be so, if to Mm who submits for another. The award is clearly mutual; for to make it so, it is requisite only that the money paid be a final discharge of all claims.
    Livingston J. In Purdy v. Delavan, we decided, that an award, ordering payment of a sum of money, carries in itself a mutuality, as it must be held in satisfaction of, the matter submitted.

      Woodworth»

    Then the only point is as to the right to submit. If the guardian has it, the receipt of the sum awarded in satisfaction of that which he was authorised to submit, must be final. The award of the arbitrators, after reciting the suit and submission, is, that they “ thereupon” determine. In 1 Com. Di. 548, it is laid down, “ if there be a “ submission of all matters, an award de et super prasmis- “ sis, that one shall pay so much to the other, is good, for “ being super prcemissis, (or thereupon) it must be held to “ have been in satisfaction of the matter submitted.”

      Henry in reply.
    The use of & profert is, that oyer may be demanded, and though a deed be set out in the declaration, profert is nevertheless necessary. But, it is confessed, this objection is not much relied on. The reasoning, however, of the other side, admits the award to be neither final nor mutual. It is acknowledged that the infant is not concluded; if so, it cannot be final, nor can it be mutual. To give it the semblance of mutuality, it should have gone further, and awarded certain things to be done by the plaintiff, in case the infant should not abide by the determination of the arbitrators. The plaintiff was only guardian ad litem ; and though a guardian in soccage, or by nurture, or even a testamentary guardian, may submit, one who is merely ad litem, cannot. His power is only for a specific purpose, and as it is a delegated authority, cannot be exceeded, or transferred.

       1 VoL 304.

   Per curiam, delivered by

Livingston J.

The first objection to this award is founded on a want of power in the guardian to submit. Hence it is said, the award is not mutual, and the infant’s rights not concluded.

It is difficult to conceive how it should ever have been doubted whether guardians had this power, or whether they were not bound by their bond, or whether an award under these circumstances, did not put an end to ail controversies submitted between the infant and other party. That an infant himself should not bind himself in this way, is right, but for this very reason, a power should be lodged elsewhere; and where can it be so properly intrusted as to the very person who has the care of all his property? for the present plaintiff does not appear a guardian ad litem only, and must therefore be supposed competent to judge whether a suit or arbitration will be most likely to promote the interest of his ward. But this point is settled in Roberts v. Netubold, where it is allowed, that a guardian may submit for an infant, and even if the latter gives a bond himself, it is not void, but only voidable. With this also agrees the civil law, by which, although an infant cannot bind himself by a submission, yet, if any one will become his surety, a remedy may be had against the latter, for the infant’s non-performance.

There is as little reason to say the award is not final. After reciting their authority to settle all controversies between the defendant and infant, the arbitrators award, “ that the “ former shall pay a certain sum to the guardian, and that each party shall settle with his own witnesses.” There can be no doubt that payment of this sum to the guardian would operate as a discharge to the defendant for every demand of the infant, and that the award is, of course, sufficiently conclusive. The only remaining objection is, that no profert is made of the award in the replication. That this is necessary, we can find no authority. The action is on the bond, and, in answer to the plea, the award is set forth in hcec verba. This is the usual way, and must be sufficient. The replication is therefore good, and the plaintiff must have judgment.

       Tlie reason why a profert of an award is not required, is, beeauseitis not a deed.


text:
    James Cheetham against Zachariah Lewis.
    NEW-YORK,
    Nov. 1805.
    On an original suit ™ plaintiff may UmeTunlLr7 nonprossed.
    EVERTSON moved to set aside the declaration, and stay all further proceedings, because, though the writ was returnable in November, 1803, the plaintiff had not filed and delivered his declaration till September last. He contended, that by the rules of the common law, a plaintiff was obliged. to declare within the year, and if he did not do so, he was ipso facto out of court. If some limitation of this sort was not in force, a cause might be hung up ad infinitum. In support of the application, he cited 2 D. & E. 112, and particularly the reasoning of Butter, J.

      Van Wyck contra,
    _ argued that the only mode of putting, a plaintiff out of court, was, by a rule to declare, or be non-prossed.

   Per curiam.

There is no such rule of practice in this court, as that insisted on by the defendant. It is in his power to nonpross the plaintiff if he pleases; if he does not, the plaintiff may declare at any time. The decision, however, in this case, will not apply to a suit removed by ha-beas corpus; for there, as the defendant cannot nonpross, he is not bound to plead.