author: Lewis, Ch. J.

text:
    The People of the State of New York against Brown and others.
    Intrusion for a forfeiture of lands granted in fee, will not lie before office found. Intrusion must be on the actual possession of the people. The people can acquire seisin or possession of lands, for breach of condition by matter of record only.
    This was an information filed, at the direction of the legislature, by the late attorney-general, against the defén d-ants, for an intrusion on certain lands lying in the county of Otsego.
    The defendants claimed under letters patent, of the 6th of September, 1770, for 9,200 acres, granted by his majesty, George the Third, of Great Britain, France and Ireland, king, &c. at a quitrent of two shillings and sixpence, sterling, for every hundred acres. After the usual [*417] reservations *of mines and white pine trees, for masts, the grant contained the following proviso: “ Provided further, and upon condition also, nevertheless, and we do hereby for us, our heirs and successors, direct and appoint, that this our - present grant shall be registered, and entered on record, within six months from the date hereof, in our secretary’s office, in our city of Hew York, in our said province, in one of the books of patents there remaining; and that a docket thereof shall be also entered in our auditor’s office, there, for our said province, and that in default thereof, this our present grant shall be void and of none effect, any thing before in these presents contained to the contrary thereof, in any wise, nothwithstanding.”
    It was admitted that no docket of the said letters patent, had been entered in the office of the auditor, pursuant tc the said proviso ; but the following entry, made since the year 1797, was found in a memorandum book of patents in the office of the comptroller of this state, to wit: “ 1558,. patent granted to Leonard Lispenard and others; for 9,200 acres of land in Albany county, dated the 6th of September, 1770, at two shillings and sixpence, sterling, for every hundred acres.”
    About the same time when the above memorandum was made, Samuel Jones, Esq. comptroller of this state, pursuant to the laws relative to quitrents, caused the aforesaid tract of land to be advertised for payment of the quitrents due.

    It was further admitted, that on the 3d of April, 1799,, the sum of 3 dollars and 84 cents was paid into the treasury of this state, by George Stanton, one of the original patentees, in pursuance of the act for the collection of quit-rents, as the arrears and commutation then' due on lots Ho. 41, and 42, and, that, on the 28th of October following, 3 dollars and 82 cents were in like manner paid, on 50 acres of the grant, by one Jesse Clark, who had purchased under the patent, from which the defendant Brown derived his title; but neither the lots 41, and 42, nor the 50 acres on which the said 3 dollars and 82 cents were paid, constituted any part of the lands in his tenure.
    *On these facts, the question was, whether the [*418] defendants were or were not guilty of the intrusion complained of.

      Spencer, (Attorney-General.)
    It is admitted that there was no docket entered in the auditor’s office, according to the proviso in the letters patent. The information is grounded on this principle, that the forms required by the grant created a condition, proviso, or limitation, which was to make it void on the not doing a certain act by the patentees. If therefore, this act has not been performed, the instrument is a nullity, and the people have a right to con- . eider all persons now on the land as intruders. It may, perhaps, be urged in behalf of the defendant, that the act concerning quitrents has done away the forfeiture ; especially as the qfficers of government have received the quitrents due, and, therefore, considered the patent as in existence, . and good. That, however, will depend on whether the not docketing the patent within the time limited, did not cause the estate of the patentees to instantly cease; or whether, •even allowing the contrary, the payment could purge the forfeiture for more than those very lands for which made, and which do not include those for -which the intrusion is brought. There can be no doubt that every grantor, whether a state or an individual, may annex to his grant whatever conditions he pleases, provided they are not repugnant to principles of law. Here, the condition is, that the grant shall “ be void and of none effect." Therefore, the acceptance of rent could not restore what was gone. Sir Moyle Finch's Oase, Cro. Eliz. 321, shows the soundness of this position. This, it may be said, was the case of a demise for years. A distinction, therefore, may be attempted between that and the present, which is of a fee. In fact, however, the diversity does not exist. This the court will see in 17 Yin. 81, pi. 1. n. It is not, that in one case the estate is void, and in the other voidable; but whether the determination be by the same means as create the interest. The proviso here was a limitation which ended the estate on non-performance ; because, as it was created by matter of record, so it was to be destroyed *by matter of re- [*419] cord. It is generally true, that where a freehold is to be defeated, entry is necessary ; but it is not so where an act that ought to appear of record is not done. It is laid down that if an estate granted by the crown determine by a condition broken, the king shall be seised without office found, where the breach is apparent upon record. 7 Com. Dig. 53. (D. 70.) It is the revesting the estate which we contend for here. This makes the difference between the present question and that of Van Schaick, in 1796, in which it was decided, by the court of errors, that ■a new grant could not be made till after office found; not that an information would not lie before. There can be no doubt of the words used in the grant creating a condition, operating as a limitation or qualification of the estate. Litt. sec. 329. For this purpose, the word “ provided” was certainly the most fit. On breach of it, the estate must be judged in the grantor, or, as here, the people. Litt. sec. 350. So here, as the non-performance was of record, the right to proceed by intrusion accrued before office found, the estate of the patentee being totally devested.
    The next consideration is, whether any thing has been done to, waive the forfeiture. This may be laid down as an established position; what is void cannot be confirmed, what is voidable may. As, then, the interest of the patentees was absolutely annulled, the receipt of the quitrents could not revive it. Jenkins v. Church, Cowp. 482; Doe v. Butcher, Doug. 50. Even in avoidable cases, the mere acceptance of rent, unaccompanied with any other circumstances, will not work a confirmation. .See Green's Case, Cr. Eliz. 3; Roe.v. Harrison, 2 D. & E. 425. ¡No receipt can revivé or confirm, unless taken with a knowledge of the forfeiture, and an intent to waive it. The act concerning quitrents does not recognize any loss of title in the defendant, or others holding under .the same patent. ¡No payment, therefore, to an officer acting by authority of a general law, with a power merely to extinguish quitrents, could revest. All that he could do was to bar the right of the people on them when due, and not by taking them, if not due, to give away the land of the state.

      *Emott and Van Vechten, contra.
    Though from the length of time the defendant, and those under whom he claims have been in possession, the case is a hard one,, still we are ready to exculpate both the present and late attorney general from all imputation of rigour. They have acted only in obedience to resolutions of the legislature. The case divides itself into two questions; 1st. Whether the grant be void, or voidable ? 2d. Whether, if so, the present form of proceeding is the appropriate remedy ? Whether void or voidable, will depend on a number of subordinate inquiries. We did not, it must be confessed, expect that the proviso would be urged as a limitation, which always goes on a certain express time of determination ; it is a condition, and nothing more; in which case, as the estate might continue over, it was voidable, and not void. But the words in question created, neither the one nor the other; they were merely directory on the officers of government, and did not oblige us to do any thing: they are separated from the conditions by which the grantees were bound by specific acts. The words are, “we direct and appoint. The clause itself is rare, this being the only grant we can find in which it is.contained. The officers of government ought, the clause being directory, to have given notice to the patentees to come in and docket; for, to the patentees themselves, the act was" nugatory, as they had complete evidence of the right by the grant itself. But, considering the clause as a condition, then, we contend, it is repugnant to the grant, and void. It was for an act to be done by the officers of the crown, for the benefit of the crown alone. It is the same as if the grantor had conveyed, on condition that he should himself lodge the consideration-money, within 20 days, in the United States bank, or the conveyance be void. The result would be, to put the whole grant in the power of the crown ; or, what ■is the same thing, within that of its officers. But, should the condition in the proviso be deemed a valid one, and obligatory on us, we say it has been performed; for if the intent be complied with, it is sufficient. That the leaning of the court is *against forfeitures, we cite [*421] Bull. 1ST. P. 96, and that the intent, and not the letter of the words ought to regulate. Shep. Touch. 139. 1 Atk. 375.
      Daley v. Desboviere, 2 Atk, 261, and the cases cited in n. 1, p. 264. What, then, was the intent to be answered by this docket ? Merely to inform the court of the existence of the grant, and the value of the reserved vent, that no interfering patents might issue, and the amount of its revenue be known. The entry, therefore, in the comptroller’s office, taken from the old minutes there, was fully adequate to every purpose. For though two acts are mentioned in the proviso to be done, it does not follow that both are necessary to be performed. Long v. Dennis.

      4 Burr. 2052. In the present case, however, after a lapse of 30 years, in a country circumstanced as this' was during a revolutionary war, and when the very record may be supposed to have been taken away by the officers of the crown, to presume a docket regularly entered is no more than what the law will warrant. Bedle's Case, 12 Bep. 5.
    Should it, nevertheless, be held, that the forfeiture was incurred, we still contend that it has been waived. The argument urged against this position, that there is a distinction between the acts of individuals and those of officers of government, is contrary to the implication arising from the case of Sir Moyle Finch, relied on by Mr. Attorney. For the people are bound by the act of their agent, in the same manner as any common person. "What then, are those acts ? First, the permitting 30 years to elapse in silence; next, the comptroller has made a record, or docket, by entering the memorandum stated in the case to have been written in 1797, which fully sets forth the dates, parties, and rents; this, too, is an act of a public officer. Secondly, by advertising these very lands for the quitrents due, under the authority of the act mentioned in the case; for the language of the advertisement is, we claim not the lands, but the quitrent due. Thirdly, the comptroller has received from one of the patentees, and from a person holding under the grant to them, quiterents for some of these lands, and though they have been paid but upon portions of the tract, yet they will accrue to the benefit of [*422] the whole grant. Goodright v. * Davids, Cowp. 803.
      Pennant's Case, 3 Bep. 64, b.
      Green’s case, Cro. Eliz. 3. 3 Salk. 3.

      Independent, however, of what has been before advanced we contend, that an information for .an intrusion cannot be supported before office found. This is absolutely necessary to entitle the people to proceed. In the case of common persons, if it be intended to destroy an estate for a condition broken, it is indispensable that an entry should fiist be made. Shep. Touch. 153. Whenever an entry is required of an individual, an office must be found for the king. Sir George Reynel's Case, 9 Rep. 96, b. 16 Vin. Abr. 84, pl. 24. Ibid. 83, pl. 19, 20. Even where the whole estate has become void, by the non-performance of the condition, still an office must be found before the tenant can be held an intruder. Sir Moyle Finch's Case, 2 Leon. 143. Payne's Case, ibid. 206. The proviso on which the Attorney-General relies, being a condition, and the estate under the patent taking effect immediately, it is plain that the grant was voidable only, and not absolutely void. This being so, and nothing done to avoid "the grant, and put the people into possession, intrusion, cannot lie, for it is essential to intrusion that it be on the actual possession of the crown. 3 Bl. Com. 261; Moor, 375.

       Therefore, in all cases of forfeiture, &c. intrusion will not lie till office found, this being the legal substitute for entry by "a private person, and the only means for the crown to regain the possession, for the injury to which the intrusion is brought. Moor, 296, 297. That this is only to be done by office found, Parslow v. Corn, Cro. Eliz. 855, is an authority fully in point. Besides, the title created by the patent was matter of record, and, of course, must be avoided by that which is of equal solemnity. Plowd. 229; -and the cases there cited. The only method, then, to have been pursued, was by an office finding the forfeiture, and intrusion upon that. This will appear still more evident, if we consider the effect of the different proceedings. On the inquest of office, performance of the condition, or refusal by the officer, which is tantamount, 10 Rep. 67, b. 2d Res. might have been shown, but this could not be done under an information for intrusion, which merely states the possession of the crown, and the defendant’s intrusive entry [*423] Case of Alton Woods, *1 Rep. 28. Plowd. 479. The necessity, therefore, of these measures must appear, that the parties ipighthave notice of the grounds of the claim against them. This cannot be done by the information now brought, which is not like a writ of escheat that sets forth the whole claim on the part of the crown, If what has been laid down already for us be true, that the docketting was a duty to be performed by the officer, then it is, for the honor of the crown, as the old books say, to be presumed that it has been done. Case of the Churchwar dens of St. Saviour Southwark, 10 Rep. 66. For it can never be imagined that the crown would make a grant dependent for its validity on acts to be performed by itself, and omit those acts. Let it be observed, too, that no form of docketing is prescribed by the grant; and, as the revolutionary war has intervened, it may well be intended that the entry made in the comptroller’s office, in 1797, was by way of docket, which could be no more than a memoran-, dum for the guidance of the officers of the crown. If, however, the proviso be a voidable condition, then the doctrine of waiver will apply. For government can never be supposed to do so great a wrong as to permit men to make improvements, then offer to receive a commutation in discharge of quitrents due, on, those very lands which they claim as forfeited, receive the amount, and then attempt to defeat their grant. Because, having dispensed with the condition in part, by a partial receipt of quitrents, the condition is dispensed with in the whole. Dumper v. Sims, Cro. Eliz. 816. This species of construction is due to the liberality and honor which we are to suppose constantly actuate the proceedings of government, and is a principle universally acknowledged. Bewley’s Case, 9 Rep. 131
      Molyn's Case, 6 Rep. 5; 10 Rep. 67. In a more peculiar manner is this to be adhered to after a lapse of 30 years, when the rights of third persons, bona fide purchasers, and others, are' implicated. In Van Schaick's Case, it was settled, that where a forfeiture was apparent, by matter of record, then a scire facias should go ; when it arose on matter in pais, an office must be found. The information, therefore, must fall.

      Spencer, in reply.
    The words of the proviso are sufficient' to show the docketing was not directory to the officers of *the crown. The grant was to be valid [*424]' on doing several acts, some in pais; some of record. If not performed in a certain time, the letters patent were to be void. The words “ direct and appoint,” are declaratory to the patentees, that the estate granted should be subject to the condition of ifieir registering and docketing. This must always be at the request of the parties, who must do an act towards it: nay, they, according to the colonial system, had to pay for its being done, and, therefore, it was ■ clearly a duty in them; for it is coupléd with a stipulation, • that if it be not performed, the letters patent shall be void.This makes the proviso a limitation; and when so, it is not" necessary that an office should be found, because the crown would be immediately reseized. Poph. 53. Whether, however, it be considered as a limitation, or a condition, is immaterial for no office was necessary. It is required only to make the forfeiture known by matter of record. Here-the docket was a matter of record; therefore, whether the grant was docketed, or not, would appear by inspection of the records. The forfeiture, then, being thus by matter of record, needed not to be found by office. The authorities cited by the other side are in conformity to this position. 2 Roll. Abr. 215: Cro. Car. 100; Stevens v. Potter. On the not docketing according to the terms of the proviso, the estate of the patentees was gone, and, this being by matter of record, the people were reseised. JSTo act therefore, of their officer in taking rents not due, could revive an interest absolutely avoided and null. The cases from Cowper and Douglas, when looked into, will show this, though they are quoted as authorities against the people. The principle they settle is, that’ no acceptance will waive a forfeiture, without knowledge of all the circumstances by which that forfeiture was worked. The people had acquired a fee on breach of the condition. The quitrents, therefore, were merged, and a tortious taking by their officer of what was not due, not knowing it not to he due, can never waive their rights.

      Yan Yechten.

    We say, by the act he was constituted judge whether quitrents were due or not.

      Spencer.

    We say he was not; that he was a mere receiver, delegated to receive alone. The act of the [*425] . officer *in making the entry in 1797, was allowing his acts to enure to the advantage of the defendant, yet it was not in time. In arguing from the presumption the 30 years’ lapse has afforded, the counsel seem to forget that there is a law by which the limitation of suits by the people for land, is settled at 40 years. It is an absurdity to settle a limitation at 40 years, and presume against it at 30. Mor can anything be presumed from the revolution, because the court know all the papers in the various office» were preserved. ' In one of the cases referred to, the presumption arose from this ; that as the deeds were delivered in to be cancelled, (10 Rep. 67, 2d. Res.) the officer should be presumed to have cancelled them ; hut were the deeds here delivered to be docketed ? On every ground, therefore, we consider the people entitled; especially as the want of docketing is proved by the records, and an office found would be only surplusage,

       The name of the first patentee.

       Tinder the 8th section of the “Act concerning quit-rents," passed 8tL of April, 1801.

         The decision alluded to is Stephens v. Potter, Cro. Car. 100, 2d Res., _ but that merely determined that a lease for years, reserving rent payable at the exchequer, is void on non-payment, without office found; whereas, if the •rent be payable to the receiver-general, non-payment, without office found, does not vacate. The reason is obvious, as the crown can grant only by record, it can be informed only by record; the non-payment to the receiver is a matter in'pais;- when found by office, it is of record, and so is non-pay ment at the exchequer. See, however, this doubted, 2 Roll. Abr. 216, (H.

       The cases there referred to are of leases.

       The case of a lease for five years, with condition to have fee on paying of forty marks at the end of two years, and livery of seisin according to the deed. Revested by implication, because grantor could not enter upon tht ' oreaeli, as, by his own grant, the grantee had .hree years in the land.

       As to conditional limitations,, see Fearne’s Con. Rem. 9, 6th id.

        а) Where a benefit is to accrue to a third person, on the performing an act by another, that circumstance will not excuse the act; if not performed, perhaps an action would lie. See Ex parte Carruther, 9 East, 47.

       That is, if the act done be in law tantamount to the condition expressed, as if to enfeoff; and alease and release be executed. So in the case put Litt. sec. 352, on the doctrine of cy pres.

        Harvey v. Aston. The condition there was marrying with consent. The other authority from Atkyns, relates also to conditions in restraint of marriage.

       That also was a decision on a case in restraint of marriage, in which the conditions were held to be in the disjunctive, performance, therefore, of one st'fficient.

       The point there was, that acceptance of rent, after condition broken, with notice of the breach, is a waiver of the forfeiture.

         Which of the resolutions there made is alluded to, I know not; possibly the third, but that goes on the distinction between void and voidable leases

       Determined that receipt of rent due, does not prevent re-entry, but if accompanied with a receipt calling the lessee his farmer, or tenant, it does.

       That was an acceptance of rent from the executor of an assignee of alessee, knowing him to be the executor; held a waiver of the forfeiture for assigning

         The words in Moor are, “An information for intrusion is not a real, but personal remedy, and resembles, in all points, a trespass against a subject, for it supposes the queen in possession."

       Act for limitation, of criminal prosecutions, and of actions at law. 1 Rev. Laws, 562.

   Lewis, Ch. J.

delivered the opinion of the court. *To decide the question in this case it is necessary [*426] to inquire whether an information of intrusion lies under the circumstances detailed. To sustain a prosecution of this description it is necessary that the crown formerly, and the government now, should he in the actual seisin or possession of the subject intruded on. I shall lay down a few general principles or maxims, which I conceive incontrovertible, and which may be gathered from the two principal cases, relied on, that of Sir Moyle Finch, and of Sir George Reynel, as well as from the decision of the court for the correction of errors, in the case of The Devisees of Van Schaick v. King, Cro. Eliz. 220; 2 Lev. 134; 9 Rep. 95, a.

1st. That the state can acquire seisin or possession of lands, for breach of condition, by matter of record only.

2d. That generally, where entry is necessary in the case of a common person, an office is necessary to entitle the ttate.

3d. Where entry and action are necessary to a common person an office and sci. fa. are necessary to the state. 9 Rep. 95, b.

It is true, there are cases where the crown may be in possession by seizure without office, but they are not cases of this description; they are confined to the forfeitures of the temporality of alien ecclesiastics, where the certainty of the matter appears in the exchequer.

There is an important and striking distinction between the case of Sir Moyle Finch and the one now before us. The forfeiture there was of a term; here, if any, of fee; now a fee shall never be void absolutely, for condition broken ; but voidable by entry only, though it is otherwise of a term. But even in Finch's Case, as reported by Leonard, who states it much more at large than Coke, both Popham and Coke, who argued for the plaintiff, and Manwood, Ch. B. in giving judgment for the plaintiff, admitted that, although the lease was void without office, it was void in' interest and property only, but not in possession. And -that though the queen without office, and a common person Avithout -entry, might grant it over, yet the former could not without office prosecute for .an intrusion, .nor the latter without entry for a trespass.

These opinions, we think, decide the question; and that judgment must be accordingly .for the defendants.

Judgment for the defendants.


source: Caselaw Access Project

author:
Thompson, J. Radcliff, J. Kent, J.
      Lewis, Ch. J.

license: Public Domain

text:
    *A Ten Eyck and C. Elmendorf against G and B. Tibbits.
    On au assignment of a bond payable by instalments, with a covenant from the assignor, that “ if the obligor should become insolvent, or not be able to pay, Ac., and if the assignee, &c., should use all due diligence and take , all legal measures, &c., immediately after the several sums of money shall respectively become due,” the assignor is liable for the whole amount, on the insolvency of the obligor, on the first instalment becoming due, and the assignee is not obliged to wait till the last is payable. If the first instalment be not demanded, it will, unless the contrary be shown by the defendant, be presumed to have been paid.
    An assignment of property under the absconding debtors’ act, is evidence o( insolvency in the debtor; and the assignee of his bond is not precluded from his action against the assignor, because he lias' not proved the amount under the debtor’s estate.
    This was an action of covenant, and came before the .court on demurrer.
    • The declaration stated a bond, from one Jonathan Bennington to the defendants, in the penal sum of eight thousand dollars, conditioned for the payment, of four thousand dollars, by instalments of one thousand dollars each, with interest, on the first days of May, 1798, 1799, 1800, and 1801; an assignment of this bond for “ value received,” by an endorsement under the hands and seals .of the defendants, covenanting with the plaintiffs, “That in case the said Jonathan, the obligor in the said bond, should become insolvent, or not be able to pay and satisfy the said bond, and if the said Abraham and Oonradt, their heirs, executors and administrators should use all due diligence, and take all legal measures by prosecution at law to recover the same, and that immediately after the said several sums of money should respectively become due, and should not be able by such means to compel the payment thereof, then and in that case, the said George and Bénjamin did covenant to pay to the said Abraham and Oonradt, the amount of the said bond, with interest, or such part thereof as should then remain due from the said Jonathan Bennington.” The plaintiffs then averred the second instalment of 1,000 dollars, due on the first of May, 1799, to have become payable, before which ■ time, to wit, on the 25th of December, 1798, the said Jonathan Bennington absconded, and still continued absent, from the state of New York; and that afterwards, to wit, on the 28th of February, 1799,i they sued out an attachment against him, under the "Act for relief against absconding and absent debtors ;” under - which his estate and effects were seized - and sold, but did not produce more than 10s. in the pound, so, “on the said 1st day of May, 1799, and long before, the said Jonathan was insolvent, and not able to pay and satisfy the said bond.” That they, after-wards, on the 1st of May, *1799, caused a writ of [*428] copias ad respondendum to be issued against him, which was returned not found ; whereon they, on the 10th of August, 1799, caused an alias copias ad respondendum to be sued out, which was also returned not found, and that they had not been able, by the means aforesaid, to compel payment of the several sums of 1,000 dollars, due on the 1st of May, 1799, nor of the sum of 1,000 dollars due on the 1st of May 1800; by reason whereof the defendants became liable to pay the same. Nevertheless they had not paid the same, &c. and só the said Abraham 'and Oonradt say, th‘e said George and Benjamin have not kept their covenant so made as aforesaid, &c.

      The defendants (after demanding oyer of the bond, condition, assignment, and covenant) pleaded in bar,
    1st. That the plaintiffs “ did not use all due diligence, and take all legal measures by prosecution at law, to recover the said bond immediately after the said several sums mentioned in the condition thereof, respectively became due,” and this they are ready, &c. wherefore they pray, &e.
    2d. By protestation denying that Bennington was, at the several times above mentioned, insolvent, or was, and yet is, unable to pay and satisfy the said bond; they further pleaded, that when the first instalment of 1,000 dollars, with interest, became due, on the 1st of May, 1798, Bennington did not, nor hath since paid the same; so that the bond then became forfeited, immediately after which the plaintiffs did not, nor until long afterwards, to wit, on the 1st of May, 1799, take any legal measures on the bond against the obligor; and this, &c. Wherefore, &c.
    3d. That they did not prosecute in like manner for the instalment due in May, 1800.
    4th. As to the instalment due in May, 1799, that Bennington at the time of executing the bond in question, transferred also, as a further security, a mortgage on lands in Bensselaer county, which they had assigned, together with the bond, to the plaintiffs, who, on the 1st of November, 1799, sold the premises for 1,510 dollars, and thus paid themselves the instalment of May, 1799. p"429] *5th. As to the instalments due in May, 1799, and May, 1800, that Bennington, after the 1st of May, 1799, and before the 1st of May, 1800, to wit, on the 1st of November, 1799, paid and satisfied to the plaintiffs the several sums of 1,000 dollars due by the condition aforesaid.
    To the 1st plea the plaintiffs replied, payment of the 1,000 dollar instalment, due in 1798, on the 1st of May, according to the condition; and as to the sum of 1,000 dollars due on the 1st of May, 1800, Bennington’s absconding on the 25th of December, 1798, and due diligence as to the instalment of 1799.

      To the 2d, payment by Eennington, of the 1,000 dollars due in 1798.
    To the 3d, that before the sum therein mentioned became due, to wit, on the 25th of December, 1799, Eennington absconded.
    To the 4th, that they had not been paid the 1,000 dollars, due in May, 1799, by the sale of the mortgaged premises, as the defendants in their 4th plea had alleged.
    To the 5th, that Eennington had not paid the instalments of 1799, and of 1800.
    To the 1st replication, the defendants demurred generally.
    To the 2d rejoinder, that Eennington did not pay as the plaintiffs had replied, and issue thereon.
    To the 3d, a general demurrer.
    To the 4th, rejoinder, that the plaintiffs were paid, and issue thereon.
    The demurrers were now aigued by Harison and JEhnolL, for the defendants, and Van Vechten and Woodvjorih, for' the plaintiffs.

      For the defendants. This is an action of covenant, and is brought before the court on two demurrers by the defendants to the first and third replications of the plaintiffs. The pleadings are by no means intricate, and though it might be sufficient to confine ourselves to the demurrers only, yet it is conceived the declaration itself is defective, and therefore, the plaintiffs can never recover. The declaration states a *bond from Eennington to the Tib- [*430] bits, conditioned for payment of 4,000 dollars, with interest, by instalments of 1,000 dollars each; that the whole of this being unpaid, on the 19th of January, 1797, the defendants assigned the bond to the plaintiffs, and, at the same time, entered into a covenant to pay it themselves, in case Eennington should become insolvent, or unable to pay it, provided the plaintiffs should use due diligence by course of law, and all legal measures “ to re.cover the same immediately after the several sums of money should respectively become duel' It then further states a payment of 1,000 dollars, due on the 1st of May, 1799, before which time, on the 25th of December, 1798, Bennington absconded; that on the 28 th of February, 1799, an attachment issued against his estate and effects under the absconding debtors’ act, by virtue of which his property was sold, and produced not enough to pay 10s. in the pound; and •so the plaintiffs state, on the 1st of May, 1799, and long before, he became insolvent, and unable to pay his bond, Then a copias, and an alias copias ad respondendum is sta ,-ted, with non est inventus returned to each; whereby the plaintiffs were unable to compel payment of the instalments according to the terms of the condition.
    Our first objection is, that the action will not lie till the whole money is due, not till after the first of May, 1801; whereas the present suit was commenced in 1800. This appears from the covenant. The words are, “ not able to pay and satisfy the said bond.” A person may be unable in 1800, yet fully competent in 1801. A single default is not sufficient; and even if the suit might have been instituted when began, the averment, in that case, does not go •far enough: it ought, on the principle just mentioned, to have stated the insolvency, &o. to have continued till the. commencement of the action ; for, after May, 1799, and before suit brought, Bennington might have been adequate to every demand. The “ and so,” therefore, of the declaration, that Bennington was insolvent, is not warranted by the circumstances preceding, and the averment inconclusive ; nor does a person’s being absent, and his goods sold under the attachment set forth, prove insolvency [*431] or inability. A toan, though *out of the jurisdiction of this court, may be able to pay his debts here, though 'his property should be abroad. This, therefore, is equally an insufficient allegation. The averment ought to have been direct and independent, not drawn by way of agreement; for then it might have gone to a, jury, and they might have .presumed him insolvent.
    But, allowing this to be against usj it does not appeal that due diligence has been used.
    The covenant is, to use due diligence by prosecuting at law. This has not been done. There is a difference between using due diligence and prosecuting at law. The plaintiffs ought to have done both, and not one only. To show the diversity; suppose Bennington had had the.mo•ney .in his hands, and had said to -the plaintiffs that he would pay it if they would call; instead of which, they do .not call, but proceed, and Bennington afterwards becomes a bankrupt. This would be taking legal measures, but not using due diligence. The declaration itself shows & -want of diligence. The proceedings under the insolvent •debtors’ act were had in February, 1799; it does not, however, appear that the plaintiffs ever made any proofs of •their debt.; or ever demanded a divided .from the insolvent’s estate. They do not even seem to know what it will produce ; they state generally that it will not pay 10s. in the pound. This surely, then, is a want of diligence, and legal measures. Nay, what has been done by them is on the face of it ineffectual: they have only sued out an alias capias ad respondendum. They should have gone on to outlawry, because, by this means, a judgment would have been obtained, on which the plaintiffs might have taken the body or the property in execution. The not stating in the declaration payment of the instalment in 1798, is also an objection. For if not paid at the day, it was the duty of the plaintiffs to have then proceeded; this ought to have been made appear, because, if the 1,000 dollars were neither paid nor sued for, the plaintiffs lost all right to look to the defendants for any future sums. This will be deemed no more than a fair consequence; for had, in May, 1798, *a suit been prosecuted, judgment would have [*432] been recovered .for the whole penalty, which would have stood as a security, and would have bound the lands of the obligor. As, therefore, nothing of this sort is stated the declaration is in itself wholly defective.

      For the plaintiffs. The plaintiffs come before the court as fair purchasers; therefore, should they recover any thing it is only getting back their own, and the defendants are not injured. The question is, what does the law require that they should do before they can have a right to recover. This, we are told, cannot arise till all the instalments are due. The words of the bond and covenant are an answer to this; for they are, that the money is to be paid by instalments, and that, as they become due, measures are to be taken for their recovery ; on failure of which, the defendants are to pay such sums as may be “ then” due. It is incongruous to suppose a bond to pay by instalments should not be put in suit till the last instalment is due; and it is equally so, that a covenant to pay, if such bond should not be faithfully discharged, must rest unavailed of, when the bond is not complied with.
    The argument against the declaration, for not setting forth the payment in.1798, cannot be maintained. Nothing more is necessary than to state a right to resort to the defendants; that did not accrue till 1799. They are called upon for nothing previous, and if we are satisfied as to the payment in 1798, it is all the better for them, who are liable for every separate portion of the whole. Neither can the averment be objected to ; we state Bennington became, and was, insolvent. The covenant requires no more; it does not exact a continuance of his insolvency to be shown. If he was at any time unable to pay, it is sufficient; for the covenant does not require that we should wait till he becomes solvent again. If this reasoning is good in one instance, it is in a thousand, and may be insisted on over and over again. We show the insolvency by the absconding, and proceedings under the absconding debtors’ act; the non-payment on the 1st of May, 1799, and the legal measures taken by issuing the writs mentioned.

      The next objection *is the want of due diligence. [*433] We are required to institute suits only as the sums become due; that is all the diligence required. The instalment of 1798 must be presumed to have been paid ; unnecessary, therefore, to sue for that; and a writ did issue for the one in 1799. To continue proceedings on to outlawry, without any chance of recovery, was not only useless, but would have been unjust, as all the costs would have fallen on the defendants, the record itself showing every part of Bennington’s property assigned under the law against absconding debtors. It could, therefore, never have been the intention of the parties to thus unnecessarily saddle themselves with expenses; and it is a general rule, that covenants and conditions should be so expounded, as to serve the intention of the parties. This species of diligence could, therefore, never have been contemplated. The covenant of the defendants was in case of Bennington’s insolvency, or inability, to place themselves in his situation, and pay, as he would have done, by instalments. The inadequacy of the estate of Bennington to pay more than 10s. in the pound, is a proof of his incapability, and it does not appear that even that has been paid, or could have been received. Allowing Bennington to have property abroad, and so, in fact, not insolvent, we are not to look to any thing beyond this state, and the jurisdiction within which the covenant was made. On our part, nothing appears to bind us to prove our debt. It was not our duty; the defendants are the legal creditors, and we could, at the most, be only trustees. They, therefore, having the legal right, are the parties" who ought to have come forward to substantiate the demand. As to the payment of 1798, we are at issue on that, though, we suppose, whether paid or not, is immaterial ; for, as we may now remit the whole, and exonerate from all, we surely have the same right over a part.

      Harison, in reply.
    That the intent of the parties is to govern, we are on both sides agreed. "What that is, must) however, be shown from, the instrument; nor can the court look beyond it. The cases in which the defendants are te be liable, depend on conditions precedent. If so, [*434] then not *only an insolvency and inability in Bennington to pay must be shown, but instantly afterwards, due diligence and legal measures. Even the insolvency and inability is not shown positively ; it is only “etsic” How a seizure and sale of all a man’s estate and effects in one county, and their being insufficient, is not enough; there may be more than enough to pay all his debts in another, In trover, a demand and refusal is evidence of a conversion ; yet, if stated in the pleadings, that the articles by finding came into the hands of the defendant, who, on demand, refused to deliver them, and so he converted them, it would not be good, because the demand and refusal might not amount to a conversion. The necessity of further proceeding than the mere issuing a copias' and an alias copias will fully appear, if it be considered, that had a judgment been obtained, it would have bound subsequently acquired lands, and even in the hands of executors. Besides, the diligence covenanted for requires more. The plaintiffs held the only evidence of the debt due from Bennington; this they ought to have proved under the assignment made by virtue of the absconding debtors’ act, that those for whom it was held might come in for the benefit of a dividend on the amount. Allowing, therefore, the insolvency, and our liability, the court will necessarily say we are, on this ground, discharged. The passing over the first instalment is not quite clear. It is contended the plaintiffs might remit that payment. Ho such thing; for if unable, and in tottering circumstances, legal steps ought to have been instantly taken, and a judgment obtained for the amount of the whole bond to give that priority and lien which now is lost. It was giving time, and that will make the debt the plaintiffs’ own. The obtaining payment.of the first instalment was a condition precedent to our liability, and ought, therefore, to have been shown. As it has not, the defendants cannot be be called on in this action.
   Thompson, J.

The exceptions taken to tb i declaration are,

1st. That no action could be maintained on the covenant against the defendants, until the last instalment on the bond fell due, which was in May, 1801. The present action was commenced in 1800.

*2d. The insolvency, or inability of Bennington [*435] to pay, is not sufficiently averred.

3d. It does not appear that due dilligence has been used against Bennington, to recover the money.

4th. Ho notice is taken of the payment that fell due the 1st of May, 179,8.

I think all the objections untenable. The-reason urged in support of the first is, that although Bennington might have been insolvent in the year 1799, the time alleged in the declaration, he might not have been so in the year 1801, when the last instalment ■ fell due; and that the covenant only goes to the eventual responsibility of Bennington. This construction appears to me not warranted, either by the terms of the covenant, or what may reasonably be presumed to be the intention of the parties. The bond is made payable by instalments; the general object of the covenant was, to make the defendants responsible for those payments, and a fair interpretation would be, unless a contrary intention was clearly inferrible from the terms of the covenant, that they became security to pay, according to the condition of the bond, in case of Bennington’s insolvency, or inability to pay. This construction is conformable to the general intent and understanding of parties with respect to securities, and there seems nothing peculiar in the phraseology of this covenant, to warrant a different conclusion. The covenant expressly refers to the bond, and purports to guaranty the payment, I think, according to the condition; and if so, there is a breach of the covenant, whenever there is a failure of payment agreeable to the terms of the bond. The assignees have pursued the obligor according to the provisions contained in the covenant. If this covenant would warrant a different construction, it would be, I think, that the whole sum was payable by the defendants, immediately on the insolvency of Bennington ; for the covenant concludes, that then, and in such case, (alluding to the insolvency,) they were to pay “ the amount of the said bond, or such part as remained due.” The result, however, as it respects the present question, would be the same on either construction. The insolvency, or inability of Bennington to pay, appears [*436] *to me to be fully and sufficiently averred. The averment is in the very terms of the covenant, to wit, that on the said 1st day of May, 1799, and long before, the said Jonathan was insolvent, and not able to pay and satisfy the said bond. It is said, however, this is a dependent averment, and is alleged as a conclusion drawn from a detail of facts, and which do not warrant the inference. The facts stated, appear to me fully to warrant the conclusion drawn. They are, that Bennington had, some time previously, absconded, and departed from this state to parts unknown,- and still doth continue absent from the state, at some place unknown: that he had been duly proceeded against as an absconding debtor; and that the result was, that his estate was not sufficient to pay his creditors 10s. in the pound. It was admitted, on the argument, by the defendant’s counsel, that if the averment had been general that Bennington was insolvent, and unable to pay, without detailing the facts from which the conclusion was drawn, t]le declaration would have been good. Admit the declaration to have been thus drawn, and issue had been taken upon the solvency of Bennington, and the facts detailed in the declaration had been proved on the trial, would they not have warranted the jury in pronouncing him insolvent, or unable to pay the bond? I think, clearly, they would. These facts l-t-ung admitted by the demurrer, I think the court is bound to make the same conclusion. It is also said, the plaintiffs ought toffiave shown how much they had received on a distribution of Bennington’s estate among his creditors. This appears to me to be rather matter of defence, and incumbent on the defendants to prove. If the plaintiffs had received anything, it would have been proper evidence, under plea of payment by Bennington. Besides, the declaration does contain an averment that they have not received payment for the instalments, for which the action is brought.

The third exception is, that the plaintiffs have not shown due dilligence in prosecuting Ben'nington; that they ought to have proceeded to outlawry. I think it manifest, that such extraordinary proceedings were not in contemplation of the parties; and, therefore, that the covenant ought not to ^receive such a construction as to make them [*437], requisite, unless clearly warranted by the terms.

The plaintiffs were to use all due diligence, and take all legal measures, by prosecution at law, to recover the money from Bennington; by which I would understand, all ordinary legal measures, prosecuted with good faith. In the present case, the plaintiffs allege, that soon after Bennington absconded, proceedings were commenced against him as an absconding debtor, and prosecuted with due diligence, in order to secure his property; and for the purpose of arresting his person, ordinary process issued on the very day the payment fell due; all which, I think, show due diligence, sufficient to satisfy the terms of the covenant, and the intention of the parties.

The last exception is, that no notice is taken of the payment that fell due on the 1st of May, 1798. It is, I think, a sufficient answer, to say that no demand is made on the defendants for that instalment: and the presumption is, that it has been paid, since the plaintiffs were bound to proceed against Bennington, as soon as the payment fell due, which they appear to have done with respect to the second instalment, the very day it became payable. Any delay, or loches of the plaintiffs in this respect, however, it appears to me, can only be alleged when'a demand is made upon them for that instalment. It is said, that if a suit had been commenced on the bond for the first payment, the judgment would have been for the penalty, and would have been a security on his property for the future payments. This objection fails, without assuming several facts of which nothing appears. Ho evidence that there was any default with respect to this payment; or, but that a suit was commenced, and satisfaction made before judgment, or that he had any real estate which the judgment would have bound. If there were any circumstances of this kind, whereby any loss might probably be sustained for want of due diligence in procuring payment of the first instalment, it might have- been proper evidence for the defendants to have availed themselves of on the issue with respect to due diligence, but can never be ground for the demurrer to the declaration. I am, therefore, of opinion, that [*438] neither of the *exceptions are well taken, and that the plaintiffs ought to have judgment.

Radcliff, J.

The first and principal objection is founded on a strict and literal construction of the terms of the covenant. The bond is conditioned for the- payment, of' four annual instalments of 1,000 dollars each. The defendants assigned this bond to the plaintiffs, and covenanted that in case the obligor should become insolvent, or not be able to pay the said bond, and if the plaintiffs should use due diligence, &o. to recover the same “ immediately after the said several sums of money expressed in the condition, should respectively become due, and should not be able to compel the payment thereof, then the defendants would pay to the plaintiffs the amount of the said bond, with interest, or such part thereof as should then remain due." It was contended by the defendants’ counsel, that by the terms of this covenant, the defendants cannot be held to pay, until all the instalments shall become due; because the covenant is entire, and contemplates a single payment of the amount of the Said bond, or such part thereof as shall remain due. Confined' toi these terms, it would be susceptible of this interpretation: But, I think, it would equally admit of the opposite construction ; that on the failure of the obligor to pay the firstinstalment, the defendants should be liable to pay the whole.The event in which the defendants were to become answerable, was the insolvency of the obligor, or as it is expressed in the covenant, if he should not be able to pay the said bond,.kc. and if the plaintiffs could not recover the same,, (the bond,) that the defendants would pay the amount of the said bond. If the obligor was not able to pay the bond,' and the plaintiffs not able to recover the bond, immediately after the respective instalments became due, then the casus occurred, and the defendants were to pay' the bond, not any particular instalment. Now, if the term bond is to bó con-, Strued in the same sense throughout this covenant, as the penalty would become legally forfeited on the failure of the first payment, the defendants, according to the letter of their engagement, might be considered'liable to pay the whole' bond. There is an additional reason, too, in favor Of this "^construction ; for, the moment the insol- [*439] vency of the obligor happened, there could remain little hope or expectation of recovering the subsequent instalments from him; and it might rationally be intended, that the defendants should at once take back their security against him, and pay the plaintiffs 'the consideration of the assignment which they had already received. But I think either of these constructions too rigorous, and opposed to the intent of the covenant. The bond was due to the defendants by instalments. The sums in the condition were, in reality, the debt. By the assignment, they meant to' substitute the plaintiff's in their stead, and they guarantied the solvency of the obligor, and the payment by him, according to the terms of the condition. This was the sub-' stance of the contract, and the foundation of the covenant t ' which, I therefore think, ought to be taken distributively. and deemed a continuing covenant, on which the defendants would be liable on the failure of the payment of each ■ instalment.

With respect to the other objections which have been stated, I acquiesce in the opinion already delivered, and, generally, for the reasons which have been assigned.

I am, therefore, of opinion, that the plaintiffs are entitled to judgment on the demurrers.

Kent, J.

This case comes before the court on demurrer to the first and third replications. Upon the argument of these demurrers, the counsel for the defendants relied upon what they contended to be substantial defects in the declaration. It was there that the first fault was to be found, and to which they choose to resort.

The action was commenced in July term, 1800, and the last instalment on the bond was payable on the 1st of May, 1801; and it was contended, that the defendants were not liable upon their covenant until all the moneys on the bond became due. An important question accordingly arises on the construction of the covenant. It was to pay the amount of the bond, with interest, or such part as should remain due and unpaid. But there were two conditions precedent to recovery upon this covenant. [*440] *lst. That- the obligor should become insolvent, or not able to pay and satisfy the bond.

2d. That the plaintiffs should have used all due diligence, and have taken all legal measures, by prosecution at law, to recover the same, and that, too, immediately after the several sums of money should respectively have become due, and should not have been able, by such means, to have compelled the payment thereof. The bond was payable by instalments, and there can be no doubt but that the obligor was liable to suit on default of payment of any of the instalments. Coates v. Hewit, 1 Wils. 80; Hallet v. Hodges, Sayer, 29 ; Buller, 168 ; Marsen v. Touchet, 2 Bl. Rep. 706. As to the cases in Co. Litt. 292, b. and 1 H. Bl. 547. they relate only to debt on simple contract, or single bill. But the covenant was not, by the terms of it, to indemnify by instalments; it was to pay the amount of the bond; and that, too, only upon the condition that the obligor was not able to pay the bond, 'and that the plaintiffs had used all legal means to recover the same, immediately after the sums had respectively become due, and had not been able to , compel payment. The language of the' covenant throughout has reference to the bond as one entire debt, and the payment to be made by the defendants, in pursuance of the covenant, was of one aggregate or entire sum; or, so much thereof as should remain unpaid. I am of opinion, therefore, that the defendants were not liable on their covenant until all the payments on the bond had become due. Thé burden of suing and collecting the instalments was, by thé assignment, cast upon the plaintiffs; and if they could resort to the defendants on the first, or any default prior to the ultimate one, they must be entitled to recover the whole amount of the bond from the defendants before all the instalments were due, and before the legal means had been used to ascertain whether the obligor was, or was not, competent to pay. This would be contravening the express words of the covenant, which were, that the defendants were not to pay until all such means had been used, as the instalments respectively became due. It would be casting back upon the defendants the burden of using thése means, which the plaintiffs had, by the contract -assumed. These conse[*441J quences *appear to me to result from the do» trine maintained by the plaintiffs, and they are too inconsistent with the covenant to be admitted. If, however, the plaintiffs were not entitled to recover the whole amount of the bond, but only the amount of the instalment in arrear, then it would follow, that the defend ants would be subject to different suits upon the covenant, as the defendants on the part of the obligor should respectively arise. But this consequence would be against the rule of law, that for one entire contract, there shall be but one action, and would subject the defendants to the manifest inconvenience of not having it in their power, by the return, and re-ownership .of the bond, to try the experiment legal means on their part, against the obligor. For, I take it for granted, that while the plaintiffs were lawful owners of the bond, (and they would continue owners until default in-the last instalment,) the defendants could not institute a suit upon it; for this might lead to the absurdity of concurrent suits, at the same time, on one instrument, for the £ame penalty, and for the use of different persons.

In every view which I can take of this covenant, it admits of but one construction. It was one simple and entire engagement. The insolvency of the obligor, and the efforts of the plaintiffs, were to be first shown with respect to all the instalments. If, might be, that the obligor would return, and be able to pay the bond when the last instalment fell due. The present suit being brought before this period, was prematurely brought, and before the cause of action arose, I am, therefore, of opinion, that, on this ground, judgment ought to be given for the defendants.

There was another ground taken by the defendants, that might merit some consideration; I mean the want of an averment in the declaration, that the first instalment was paid, or that due means had been used to recover it.. But •it is not necessary for me, at present, to examine any other point than the one I have considered.

Lewis, Ch. J.

The question now before the court is, has there been, on the part of. the plaintiffs, a failure in the performance of the condition, on which the defend- ¡ -ants covenanted *to pay, in the event of the ina- [*442] bility or insolvency of the obligor ?

■ It is contended on the part of the defendants, that the .plaintiffs were not entitled to recover until the last instalment should have fallen due-; and then only, on showing that they had duly prosecuted for each as they respectively became due. That the absconding of Bennington, and the proceedings against him under the absconding debtor’s act, were not conclusive evidence of his insolvency. That though, perhaps, insolvent on the 1st of May, 1799, when the second instalment was payable, he might have been solvent at the time of the third or last instalment becoming due. That the terms “ all due diligence” could only be satisfied by a prosecution to outlawry; and that the plaintiffs ought to have applied for, and received, their, dividend under the assignment.

There are two events, in either of which the defendants engage to be responsible. The one is, the insolvency of Bennington ; the other, his not being able to pay and satisfy the bond. These might be considered one and the same thing, were it not that the parties intended to distinguish between them. They are in the disjunctive; the one coupled with a condition, the other unconditional. The distinction, in the understanding of the parties, could be no other than that, between an incapacity in Bennington to discharge his debts generally, and a mere inability to discharge the bond according to its condition. In the first instance, the condition compelling the plaintiffs tb prosecute would have been useless; in the second, it might eventually secure the debt.

The first question, then, is, was Bennington insolvent within the meaning of the contract ? It is stated, and not denied, that he had absconded before the instalment payable in 1799; had absented himself from the state, and continued without it at the- time of bringing the suit. That, also, previous to that period, his property had. been assigned under the absconding debtor’s act; and ■ that it neated a dividend of but 10s. in the pound. On such assignment, the debtor’s property is devested, his mercantile operations are suspended. ]STo payments can be made to him, [*443] nor can he *dispose of his property. This, in my conception is a complete state of insolvency. Pro* 'ceedings under the insolvent act are not necessary to constitute it. That act is intended as a benefit to the unfortunate, who must be actually insolvent before they' can have ■relief under it.

'But, admitting that in contemplation of the parties, no distinction was intended between the cases of the insolvency of Pennington and his inability to pay, according to the condition óf the bond, but that, in every event, he was bound to prosecute on default of the obligor, has he not complied with such condition ? On the very da,y on which the first default took place, he issued a copias; and, on its return, an alias. Pennington could not be taken being out of the jurisdiction. To prosecute to outlawry a man whose, property had been already assigned for the benefit of his creditors, would have been a useless expense, and could not have added to the security of the debt. The law, therefore, would not impose it upon them. And as the suit was in the name of the defendants, and, in effect, for their benefit, they might have continued the prosecution, had they chosen so to do.

As to the plaintiffs’ instituting a new suit on the second default, viz. on the non-payment of the instalment due in 1800, this, also, would have been useless. For, could a recovery have been had in the first suit, it would have answered every beneficial purpose. The j udgment would have been for the penalty, and would have remained a security for the future instalments.

With respect to the plaintiffs not applying for a dividend, there appear two answers to the objection ; 1st. It does not appear on the pleadings, that the dividend has not been received; 2d. The defendants were the proper persons to apply for it. They were the obligees originally, and when the assignment under the act took place, the possibility of recovery was defeated; they, by the terms of the contract, then became the substitutes of Bennington to the plaintiffs, and were to look to him, or his property, for an indemnity. On every ground, I am of opinion, judgment must be-for the plaintiffs.

Judgment for the plaintiffs.

       See Loveland v. Shepard, 2 Hill, 139; Eddy v. Stanton, 21 Wend. 255; Curtis v. Smallman, 14 Wend. 231; Morris v. Wadsworth, 17 Wend. 103; Herrick v. Burst, 4 Hill, 650; White v. Case, 13 Wend. 543; The People v. Jansen, 7 J. R. 332; Lamoureux v. Hewett, 5 Wend. 307; Barker v. Sheppard, 11 Wend. 629; Cumpston v. McNair, 1 Wend. 457; Moakley v. Biggs 19 J. R. 69.

        Rudder v. Price. See Hunt's Case, Owen, 42. 1 Leon. 208. Bishop v. Young, 2 Bos. & Pull. 84, where Lord Eldon says, “Whether the instalments on the note in Rudder v. Price, were due or not, still the form of the action was misconceived.” H. B. It was debt by the payee against the maker; quaere, therefore, as to this.

       Covenant by the endorsee of the payee of a note not negotiable, to pay to his assignee the amount, in case such assignee should take all, and every legal step to prosecute to effect the maker and payee. The assignee having been nonsuited in Massachusetts, -in an action against the maker, by the payee’s coming into court and disavowing any authority to sue in his name, it was held that covenant might be maintained against the assignor without' proceeding against the payee. Betts v Turner, 1 Johns. Oas. 65, S. C. reported in 2 Caines’ Cases in Error, 305, where the opinion of Kent, J., (which seems the better law, and in which Lansing, Ch. J., concurred,) is stated as the decision of the court, whereas it was contra that of the majority of the bench. The author of this note,- and the profession at large, are under obligations of no small weight to Mr. Johnson for this, and perhaps some 'other corrections in 2 Caines’ Cases in Error. “Inaccurate reports” being, as is justly observed in the preface to 1 Johns. Cas. “the bane of legal science.” It is, however, to be regretted, that the learned editor of those cases did not advert to the decisions in the supreme court, which had been antecedently published. It would have saved to the bar the repurchase of many determinations in Coleman, which follow nearly in succession, and nearly in totidem verbis, in Johnson, as well as some which hardly vary from the statements in Caines. The accident has probably arisen from Mr. Justice Radcliff having been on the bench when all the cases were decided, and having handed over to Mr. Johnson the whole of his notes, without discriminating those determinations which had already appeared.


author: Per Curiam.

text:
    *Jackson, ex dem. Low and others, against Reynolds.
    If a defendant has acknowledged the title of the plaintiff he cannot after-wards dispute it.
    This was an action of ejectment to recover part of lot No. 87, in Rotnolous, in the county of Cayuga.
    On the trial, the plaintiff deduced a regular title from the original patentee. He also gave in evidence, acknowledgments of the defendant’s confessing that he had entered without title, and that he had agreed to purchase of the lessor of the plaintiff, the premises in question, so soon as the Onondaga commissioners should award the lot in which they were contained, to Low. He further proved, by the testimony of one of the commissioners, that lot No. 37, had been awarded to Low, and the award directed to be made out by their clerk, who, however, died in February, 1801, before it was completed; in consequence of which, as their commission expired in March of the same year, nothing further was ever done.
    The defendant relied on his having entered by virtue of a conveyance from ánother, though for another lot, and offered paroi testimony of a dissent having been entered to the award of the commission; insisting, that as paroi testimony had been received of the award, so it was admissible to show the dissent. This being overruled, the jury, in pursuance of the judge’s charge, found for the plaintiff.
    Application was now made to set aside the verdict, on account of misdirection.
   Per Curiam.

Reynolds has, by his admissions, recognized Low as his landlord ; he cannot, therefore, be admitted to dispute his title. Whether, therefore, the evidence was properly or improperly received, cannot be inquired into, nor can the defendant take any thing by his motion.

Motion denied,

      la) The principles upon which admissions of a party to the record are evidence against him, are, that a man cannot be a witness for himsel/j nor a party to a record compelled to testify, out that every man is the best possible witness against himself. This technical legitimation cf evidence, by admission, is carried so far as to apply to mere trustees, though their acknow ledgments go to defeat the action. James v. Hatfield, 1 Stra. 548. Bauerman v. Radenius, 7 D. & E. 663. As the admissions of trustees who are partios to a record, are good testimony against them merely because they cannot be compelled to testify, it follows that the admissions of a cestui que trust who can be compelled, are not; nor are those of a person under whom the defendant in replevin makes cognisance, because such persons may be examined in chief. Hart v. Horn, 2 Campb. 92. So an affidavit by the plaintiff on record, if bona fide, is evidence for the defendant in an action by an assignee of a bond suing in tlfe name of the obligee. Craib v. D'Acth, 7 D. & E. 670, n. In the note to Andrews v. Beecker, 1 Johns. Cas. 411, the point of the decision in the case last cited, does not seem to be accurately stated by the learned reporter. It is taken from the statement of Erskine arguendo and adduced as in opposition to the judgment of the court in the text; as deciding that a release from a plaintiff on record, shall defeat the beneficial interest of a person suing in the name of the plaintiff. The true point determined was, that a bona fide release from an obligee beneficially interested, who was also the plaintiff on record, and for whose use and benefit the bond had been assigned in trust, shall prevail against a fraudulent assignment to a nominal plaintiff, the facts of the trust for the benefit of the obligee, the fraudulent assignment by the trustee, and the bona fide release to the defendant, being found for him on two several issues. “These cases,” says Buller, J., .in Legh v. Legh, 1 Bos. & Pull. 447, “ depend on circumstances. If the release be fraudulent the court will attend to the application.”

      ■ [1] See Northrop v. Wright, 24 Wend. 221; Jackson v. Leek, 12 Wend. 105; Jackson v. Spear, 7 Wend. 401; Jackson V. Anderson, 4 Wend. 474; Jackson v. Denison, 4 Wend. 558; Jackson v. Cooly, 2 J. C. 223; Jackson v. Dobbin, 3 J. R. 223; Jackson v. Scissam, 3 J. R. 499; Brandter v. Marshall, ante, 394, and note [1] thereto.


text:
    Bordes, Jun. against Hallet.
    Neither an acquittal, nor a restitution of goods, prejudice an abandonment once duly made. In case of a restitution of goods to the owner at the port into which a vessel is carried, he is not bound to send them on to their port of destination. Though an adjustment made by the agent of the outdoor underwriters (Mr. Ferrers) does not conclude the insurers from show- . • ing errors in it, if they do not dissent, they are bound.
    • This Was an action on a policy of insurance, dated the 21st May, 1800, to recover the amount of a trunk of merchandise valued at 800 dollars, and the expenses incurred in claiming the property in a foreign court of vice-admiralty.
    *The cause was tried before Mr. Justice RadclifE at the sittings in November, 1802.
    The case, as it appeared in evidence, was as follows:
    The plaintiff shipped the articles in question, on board the schooner( Trimmer, bound from New York to St. Jago de Cuba. On the 18th of May, 1800, he embarked with his property in the vessel; which, during the course of the voyage, was captured and carried into the port of Kingston, in the island of Jamaica, where she and her general cargo were condemned; but the trunk of the plaintiff, for which he had interposed a claim, was acquitted. Notwithstanding, however, this acquittal, and the decree for restoration, the agents of the captors refused to deliver it up. unless the plaintiff would'give security for its value; which, as a stranger, not being able to procure, they actually opened and took out the contents of the trunk, and the same were, for want of the security demanded, left in their hands.
    On the return of the plaintiff to New York, in November, 1800, he abandoned to the- defendant, and duly notified him of all the antecedent circumstances. He also, after proving his interest by a bill of lading, signed and acknowledged by the captain, submitted an account of his expenses in the prosecution of his claim for the goods insured; which in an average account, apportioning the whole, was settled on the back of the policy, at 9 dollars and 48 cents pei cent, by Mr. Ferrers, who acts for the defendant and other underwriters in adjusting claims against them. Mr. Ferrers, however, testified, that though he was thus employed, and though the underwriters did usually assent to, and pay according to his reports; still, he had no binding authority on them, for that they often disputed his statements; notwithstanding they had not, to his knowledge, on the present occasion, either assented to or dissented from the calculation he had made.
    To ihis testimony, the counsel for the defendant objected, and insisted that the plaintiff was not entitled to recover. A verdict was, however, taken by consent, in favor of the plaintiffs, .Vr 978 dollars and 74 cents, subject to the opinion of the -court on the following points:
    * Whether the plaintiff was entitled to recover [*446] for a total losv, and the expenses ? If so, the verdict to stand. But if, in the opinion of the court, the plaintiff was not entitle. 1 to recover for the expenses, but for a total loss of the goods, then the verdict to be reduced to 902 dollars and 90 cw.ts; and if'the plaintiff was not entitled to recover for a total loss, but for expenses only, then the verdict to be entered -br 75 dollars and 84 cents; otherwise, a verdict- to be enter nl for the defendant.

      Hbffiha-n, for the plaintiff.
    From the facts presented to the court, it is manifest there was a capture of the vessel. This operates as a technical total loss, and, therefore, whether an acquittal subseq rently took place or not, is immaterial ; for the capture alone is sufficient to warrant the abandonment. After this, the assured, who, from the moment of capture becomes the agent of the assurer, returns, and making a full avowal of what had taken place, says, I have done all I could ; but the event does not alter the law, I am now, for the first time, able to communicate with you and abandon. It is not however* from the cáptate alone that the plaintiff is entitled to abandon. A loss of the voyage affords an equal right. Here the goods were bound to St. Jago de Cuba, and the vessel was carried into Jamaica, where she was condemned. -The only question that can arise is, whether on Mr. Ferrers’ settlement of the average account, the defendant is bound to pay what he has endorsed on the policy to be due I But such is the ruin brought on this poor plaintiff, whose little all has been locked up by the refusal of the defendant to pay, ever since 1800, that rather than not have a decision on the principal question this term, he is ready to give up his expenses. As to those, without going minutely into the testimony, the question ought to resolve itself into this; what is the ¡relative situation of Mr. Ferrers with the defendant ? All claims, when made on the out-door underwriters, of whom the defendant is one, are referred to Mr. Ferrers. He gives his opinion whether liable to a total, or a partial loss. We do not say that when he gives his sentiments if he totally mistakes the law, that they are, on the facts submitted, obliged to pay a total, when only a partial loss is [*447] *due. But when an average loss is acknowledged, and the settling it referred to him, and he adjusts the sum, then, as the agent of the underwriters, they are bound by his report. This is not by affording an authority to settle a point of law, but as yielding a power over items of an account, the principles of which they acknowledge. Hay, even allowing the underwriters not concluded as to the principles, still, if in law at all liable, the quantum, except in cases of erroneous calculation, can never be questioned. It is like the case of a person deputed to audit the amount of claims; when the balance is struck, it is, errors ekcepted, final. The doctrine already relied on as to the right of abandonment is not impaired by subsequent rest! tution. For this the court will find authority in 2- Marsh, 484. ' '

      Pendleton, contra.
    A principal'question in this cause is as to the expenses in the vice-admiralty. The claim for ■these rests only on the report of Mr. Ferrers ; for this is the Only evidence in the case that-any were incurred. Such testimony, however, cannot bind the underwriters; fór Mr. Ferrers himself states his employment to be merely .that of reporting; after doing which, his statement is frequently disregarded, and his adjustment disputed. This' would never- be, had Mr. Ferrers an obligatory authority! .Thé fact is, he is a mere examiner of accounts, and cannot bind his principals beyond the scope of his authority. He testifies that his principals have a right to dissent from his statements of which the present action is in, itself the strongest proof. But a question is certainly made, whether the abandonment was in due season. The vessel sailed in May, was captured on her voyage, and the abandonment not made till November following. This, considering the distance of Jamaica, was a gross delay. We find, however, from the testimony of the captain of the vessel, that. this property was acquitted. The plaintiff, therefore, might have had it again had he so pleased. It is a position not to be controverted, that every court is invested with power to enforce its own authority; therefore, if after restitution awarded, it was not obtained, it must have arisen from the neglect of the- plaintiff] or- ,- some *other worse cause; for, he might have ap- [*448] plied to the court, and have obtained an order for it. In case of refusal, the process was easy, attachment for a contempt. See ante, note, 445. - It is said, however, that as the voyage was lost, that-circumstance would justify an abandonment. This will present a question to the court that has not, we believe, ever been decided. Whether an owner of gopds, where the vessel in which he ships is.-incapable of proceeding on her voyage, by reason of any acuident, is not obliged to proceed with his goods in some other vessel? Nothing of this sort appears to have been determined. Supposing him however, bound, ought not the assured, to entitle himself to a recovery, to show that no vessel could be obtained to forward the property; or ought the insurer to show, by way of defence, that there was ? The principle is, that the captain ought to get a vessel, if such a one be to be found; and it is only in cases of necessity that he is authorized to abandon the voyage; if in his power to proceed, he ought to do so; had it been otherwise, it ought to have appeared in the cage. 2 Marsh. 378. So in Manning v. Newnham, Park, 168, Lord Mansfield lays the stress of the case on the captain’s not being able to get another vessel to go on. It is settled, that when the bottom is necessarily changed by shifting the goods from one vessel to another, the underwriter continues liable. Sending on the goods, therefore, in another ship, would not have exonerated the defendant; and as it was the plaintiff’s duty, he ought to make out his case by showing another vessel could not be obtained. This, certainly, is more proper than for the defendant to be put to prove a vessel might have been procured; because the assured is to be presumed to have a correspondent where his property may be carried, but the underwriter is, not. Besides, the plaintiff was on the spot, and as he might have procured restitution from tne court of. admiralty, he may, admitting all the evidence in the case to be true, be now in another country with all the property in his possession.
    Hoffman, in reply.
    That it is the duty of an assured on goods, in case of capture and restitution to send on the articles to the port of their destination before he [*449] can be entitled *to recover, is a position, till now, unheard of in insurance law. He may, perhaps, do it under the general clause, empowering him, or his agents, to act for the insurers; and, if Iona fide done, they may, perhaps, be liable. But no authority, we presume, can he have • to change a neutral into a belligerent risk, as it is probable must be done, in sending from the port of a nation at war. But, allowing it to be as contended, it ought to come from the defendant, because it is urged as an excuse for not paying a total but a partial loss. The plain case is, there was a capture, and the voyage totally defeated. Either event will justify an abandonment. The restitution is for the benefit of the assurer, who may prosecute his claims upon it, by forcing the captors to go on with their appeal • but, on no principle can it be Contended, that the assured must follow it up, to entitle him to recover. This would destroy the very intent of insurance, which is in case of loss, to put the underwriter in the place of the underwritten.

         It seems from this, that the captors had entered an appeal from that part of the sentence, acquitting the trunk; in which case they were not bound to deliver the property, without security for paying the value, in case of a reversal.

         A ship-owner contracts to carry; a shipper does not; therefore, ho who does not engage, ca.i never be obliged to perform.

   Lewis, Ch. J.

delivered the opinion of the court. The objections to the plaintiff’s recovery, on this statement of facts, are,

1st. That he had no right to abandon after the acquittal of the property insured. See Muir v. United Ins Co., ante, 53, note (a).

2d. That the abandonment was out of time.

3d. That he was bound to have procured another vessel.

4th. That the defendant was not bound by the adjustment.

It is stated in the case, that the vessel sailed about the 17th of May, 1800 ; but when she was captured, or when condemned, does not appear. It appears, however, that though the trunk of goods, on which the insurance was made, was, by the sentence of the court of vice-admiralty decreed to be restored, the plaintiff could not regain the possession of it, and that he abandoned it to the underwriters, on the 22d of October following.

Within what precise period an abandonment ought to be made has never been determined. The time permitted to elapse between, the condemnation, order of restitution, and abandonment in the present instance, cannot be inferred from anything in the case. It is certain, however, that the loss was total on the 22d of October, and has so [*450] continued *to the present moment. The voyage to St. Jago de Cuba, was completely broken up, and the plaintiff has never had it in his power to convey the goods thither, even had it been incumbent on him so to do, for he has not been able to recover the possession of them. There is no ground, then, on which either the first, second, or third objections can be supported. Had the plaintiff even recovered the possession of his goods, it would not, in my opinion, alter the case. • Ho direct intercourse can be presumed to subsist between the colonial ports of two belligerents; and were the" contrary the fact, this is not a case imposing an obligation on the plaintiff to procure another vessel.

The fourth is rather an objection to the quantum of damages, than to the right of recovery. By the general permission in the policy, to labor, &c. without prejudice, &c. the insurer became liable to an average of the expense incurred in the attempt to recover the.captured property . It is true, he was not bound by the adjustment of Mr. Ferrers, and was at liberty to have shown that it was erroneous. But this was not even attempted. A circumstance which, when taken in connection with the character and employment of that gentleman, will warrant the conclusion that his adjustment is correct. We are, therefore, of opinion, judgment be for the plaintiff, for the largest sum found by the jury.

Judgment for a total loss and expenses.

         Though it exceed the amount of his subscription. Lawrence & Whitney v. Van Horne & Clarkson, 1 Caines’ Rep. 276. Watson r. Mar. Ins, Co., 1 Johns. Rep. 62.