author: LIVINGSTON, J.

text:
    *Seaman against Patten.
    A government officer, sworn to faithfully act, according to the best of liis ability, and perforin his duty without any wilful omission, and authorized to act “ according to his judgment, his opinion, and as things shall appear to him," is, in the line of his duty, a judicial'officer, and not liable to an action, for want of skill, or error in judgment; aliter, if he proceeds mala fide, or from malice or other corrupt motive. Under the law for repacking and inspecting beefj an offer by a cooper to brand a cask, and a refusal by the inspector-general to have it branded, are not equivalent to a branding, he having no authority to order or refuse the branding of a cask.
    ON certiorari to the justices’ court iu the city of New York.
    It appeared from the return, that the action below was brought against the now plaintiff to recover from him, as inspector-general of provisions, twenty-five dollars, for condemning, as unmerchantable, some beef belonging to the present defendant. The record stated, that at the trial the now plaintiff moved for a nonsuit, because the barrel containing tbe beef had not been branded with the name of tbe maker, according to the directions of tbe act. Because, also, no malice or corruption was proved. That these reasons were disallowed, because tbe court were of opinion, on the first point, that an offer by the cooper, or his authorized agent, to brand tbe barrels, and a refusal by tbe inspector to permit them to 'be branded, were equivalent to a branding: and on the second, because it was not necessary to prove malice or corruption, to sustain the action, the inspector-general being liable for inj uries arising from want of skill.
    Error having been assigned on each of these grounds, the case now came before the court.
    Baldwin, for the plaintiff.
    The duties imposed on the inspector-general are specifically enumerated in the fourth section. By the 16th he is empowered to refuse the repacking of beef, which is not brought for inspection in casks branded with the name of the cooper by whom they were made. The object of this regulation is to designate the person against whom the owner of provisions may have recourse, in case any injury arises to his beef or pork, in consequence of faulty barrels. But in no part of the statute has the inspector any control, or authority given to him over the coopers. He cannot order them to brand, and he cannot, therefore, prohibit them from doing so. His refusal, then, to permit the casks to be branded was a nullity. It did not prevent the exercise of any right, and consequently cannot give a title to any recompense. Eor where a right is not invaded, an injury cannot be done. In this, therefore, the error is manifest. In a case like the present, where the suit is against a public officer, the plaintiff' ought to be obliged to show that the cask was such as he had a right to present to be branded. On the next point, as neither malice nor corruption were proved, it is an admission that the defendant below acted in good faith *and that if he did err it was from a mistake in judgment. If so, he cannot be personally responsible, for he is, under the inspection law, a judicial officer. The words of the statute invest him with discretionary powers. By the 4th section he may examine beef and pork in the months of June, July, August and September, “ as often as he shall think properand if they appear to him” to be in danger of spoiling, he may remove. So a little lower in the same section, on information of any putrid beef or pork, “ if, in his opinion,” the removal be necessary. In the 5th section, the same language is preserved. If “in his judgment” provisions are in danger of spoiling. In the 11th section the state of the casks are left to “ his opinion.” He is, therefore, plainly constituted a judge of the subject matter. Supporting this action will be highly injurious to the commerce and-health of the city. An inspector will scarcely ever refuse permitting a brand to be put on a barrel whatever may be its state. Policy, therefore, is against it. The spirit of the act requires an interpretation contrary to that given below. As to the beef being condemned as unmerchantable, that is a mere allegation of the now defendant. The only result of its not being branded was, it could not be exported. It might have been sold here the very next day.
    Biggs, contra.
    The attention of the court has been called to a question by no means bearing on the merits. All th® argument has been directed to the branding of the cask. The complaint is, as it appears on the record, for condemning as unmerchantable beef which was merchantable. On this point they go to trial. Had the now plaintiff not condemned the beef, but only refused to permit the branding of the casks, the evidence would not have sustained the action. His conduct, as may be collected from the record, is this. I will not inspect because there is no brand, and I will not permit a brand that I may inspect; but, for want of a brand, I will condemn as unmerchantable. The parts of the act cited, do give the inspector-general a discretionary power in certain cases, but not in one like the present. The question for the court to decide is this; whether when a law gives power to do certain things, and the legislature does not provide a remedy for mistakes in others, an officer shall not be answerable to a person, who is injured by his want of skill ? He ought to take pains to form a right judgment. In all cases of this kind, where

      inferior jurisdictions are created, unless the officer *is protected in the exercise of his judgmeut, he is responsible. ' This position of law is universal. In Janes and Percival, (cited ante, 108. See the case since reported, 2 Johns. Oas. 49,) the justice was made to pay for issuing a warrant instead of a summons, though done at the request of the plaintiff. The law imposed on him to know, at his peril, whether the defendant was to be thus proceeded against or not. So in cases of commissioners of bankrupt, if they wrongfully declare a man a bankrupt, they are liable, as trespassers, for all that is done under the commission. The same rule applies to custom-house officers. Leglise v. Champante, 2 Stra. 820. In this last case no fraud or corruption was even insinuated. The principle is recognized also in Warne v. Varley and others, 6 D. & E. 443, where the searchers, authorized to seize all leather not sufficiently dried, were held responsible for seizing such as was sufficiently dried, though by the statute empowered to seize such as in their judgment was not so. In this last cited case, Lord Kenyon says, legislative pro vision is necessary to exempt them from this common law responsibility.

      Baldioin, in reply.
    This case from Strange is of a ministerial officer. So is that from Dunford and East, for the judicial characters were the triers, before whom, after the seizure, the leather is, by the statute, directed to be carried, to ascertain whether its quality is according to the act. This very remark is made in the case relied on against us, by Lawrence, J. p. 450. Civinne v. Pooh, Lutw. 290, is in point against the action.

       For the repacking and inspection of beef. Rev. Laws, vol. 1, p. 455 s. 16.

         Trespass against a judge, officer, and plaintiff, in an inferior court.

   LIVINGSTON, J.

delivered the opinion of the court. In our opinion the judgment rendered on this verdict is erroneous, and must be reversed.

Without denying the general principle (which is too well settled to admit of controversy) that unless the legislature provide for the protection of officers of this discrip* tion, they act at their peril, although their conduct be bona fide,, and according to the best of their judgment, there are, in this case, sufficient.marks of distinction to justify our not adding it to the revolting precedents which are already to be found on this subject. In making use of this term, I do but little more than follow the example of most judges who have been called on to enforce a rule which they admit to be a hard one, and against the operation of which, modern legislators, unless from oversight, generally take care to guard. The whole court, in the case of Warne v. Varley, seem solicitous to discover some ground on which the defendant, who had acted fairly and bona fide, might escape. This liability *was first enforced against officers who acted as volunteers,, and generally received a portion of the spoil. These were collectors and excise officers, who were neither bound by oath, nor enjoined by law, to make seizures, but might do so or not. as they pleased. Thus in Imay v. Sands, 1 Caines’ Rep. 566, decided in February term, 1804, the defendant, who was collector of the port of New-Tork, in, seizing a vessel, with a very valuable cargo, was under no legal injunction to do so, and would have been entitled to a very considerable share of the proceeds arising from confiscation. In such case there is no rigor in letting an officer act at his peril, and m putting his justification on the event. But when persons in a public capacity act upon oath, in matters too which require skill and experience, and in which men may honestly differ in opinion, it seems cruel not to protect them when they conduct themselves with integrity, and without abusing their authority, or manifesting any symptoms of malice. But this alone, if the case of Warne v. Varley be a precedent, affords no justification. Some other excuse, then, must be found for the plaintiff, or he cannot escape. Let us, then, see wliether, in the terms of the law, an ample justification will not be found, and such a one as the court of king’s bench seemed willing to admit in the case just mentioned. The defendant there pleaded that he had seized the leather because, “ in his judgment, the same was not well dried.” But the act of parliament had not given him authority to seize, what, in his judgment, was not sufficiently dried, but- only generally to seize leather of that description, without referring to his judgment at all. If it had, Lord Ken-' yon. would not have held him liablg. “It seems reasonable,” says he, “that if these searchers exercise their authority bona fide, and only seize such leather as in their judgment ought to be examined, they should be protected, but the act of parliament affords them no such projection.” From this mode of expression, as well as from the reason of the thing, it is clear, that were the judgment or opinion of the officer expressly referred to by law, as the rule of his conduct, he cannot, and ought not, to be answerable for an upright use of it, but is as much protected by a clause of this kind as by those which are usually introduced for this purpose. This reference will be found throughout the law under which Seaman acted, and must have been made to prevent his being harassed by demands of this nature. Every thing almost which, as inspector-general, *he is to do, is to depend on his judgment or opinion. He swears “ he will faithfully and impartially, according to the best of his ability, perform his duty, without any wilful omission, neglect, or delay whatever.” It is not a little extraordinary, that when the legislature exact no more of a man than an exertion of his best abilities, he should still be responsible, merely because another may have more ability or capacity than himself?

The fourth section authorizes him to remove without the city all such beef and pork as shall appear to him to be in danger of spoiling, &c. "Will it be said that he would also be liable, if he should bona fide order any of these articles to be removed, if it turned out that they were in no danger of spoiling ? Shall it be his duty to remove these articles ; shall he swear that he will perform his duty; nay, 'shall bebe liable to a heavy penalty for neglect, and shall his own opinion be made the only criteron of the necessity or propriety, and shall he not dare to exercise it? So, ' again, in the same section, he is to order beef or pork, in a putrid state, to be removed, if in his opinion the removal be necessary. Surely it would be a satisfactory defence to an action, on this part of the statute, to say that the removal in his opinion .was necessary. Why vest such power in him, as a security for the health of the city, if he be not to use it ? If too latitudinary, the legislature, and not he, is to blame. Again, by the first section he may remove certain provisions, if in his judgment it be proper. The eleventh section, in like manner, (and this applies more immediately to the present action,) declares that the barrels, -in which beef shall be repacked, (which must, of course, be judged of before they can be inspected,) shall, in the opinion of the inspector-general, be every way strong, and tight enough to prevent the pickle from leaking out. Now, if this be an action for not inspecting the beef, and it can be no other, notwithstanding the inaccuracy of the return, calling it an action for condemning the property, which the inspector could not do, who can say that the plaintiff was of opinion that the barrel was as tight and strong as it ought to be ? If he were not, it was his duty, however incorrect the opinion may have been, to refuse its inspection; for it must be an incontrovertible position, that when by law it is made the duty of a a public agent, however high or low his station, to do a thing, if in his opinion certain requisites are complied with, he can never be liable for omitting to act, (which it *is attempted to make him here,) without proving corruption, malice, or some misbehavior. It does not appear why the beef was refused. It may have been for the very cause just mentioned, which would be a complete defence. But if the inspector proceeded on the ground, as it would seem he did, of the barrel’s not being branded with the name of the person who made it, he was also justifiable. The sixteenth section is explicit on this point, and it is admitted no such brand appeared. An offer to brand was not sufficient. It is idle to say that the inspector-general refused to’ let it be done. He had no control over the cooper, or the cask. The defendant might have taken it away, and returned it properly branded. On this point the justices were also mistaken. The party, to entitle his beef to inspection, should have taken care to have put it in the state required by law. Until that was done, the inspector had nothing to do with it, or with his offers. But if the cask had been properly branded, the inspector had a right, by law, if he thought proper for other reasons, to refuse its inspection, and this is the ground on which we proceed. There is yet another distinction between this action and those which are generally brought against public officers. The latter are almost always actions for some tort, such as seizing the plaintiff’s property, or breaking into his house, or the like ; whereas this is an attempt to charge him, not for a sin of commission, but for one of omission. It may well be doubted whether this alone would not justify our deciding it on principles different from those which have heretofore governed, in the cases referred to. But without pursuing this inquiry, our opinion is, that an officer, acting under a commission from government, who is enjoined by law to the performance of certain things, if in his judgment or opinion the requisites therein mentioned have been complied with; and inhibited, under the like exercise of his own discretion, from doing other things; who is sworn to discharge these duties to the best of his ability, and exposed also to penalties, as well for negligence as for acting where he ought not, is not answerable to a party, who may conceive himself aggrieved for an omission arising from mistake or mere want of skill, if there be no bad faith, corruption, malice, or some misbehavior, or abuse of power. Nothing of the kind appearing here, the judgment must be reversed.

Judgment of reversal.


source: Caselaw Access Project

author: Livingston, J.

license: Public Domain

text:
    *In the matter of Fitzgerald, an absent debtor
    A person who has been merely transiently within the state cannot be proceeded against, as an absconding or concealed debtor, and to authorize proceedings against him as an absent debtor, the creditor who adopts them must be a resident within the ?tate. If a debtor do not actually reside within this state, though he lead so roving a life as to render it very difficult to fix on his domicil, his being transiently here will not make him a resident within the meaning of the act affording relief against absconding debtors.
    This was an application to supersede an attachment issued against the property of Fitzgerald, as an absconding or concealed debtor.
    The principles on which it was urged are so fully detailed in the opinion of the court, that it is not necessary to do more than state the judgment of the court, which was delivered by
   Livingston, J.

We are asked for this supersedeas on two grounds:

First. Because Fitzgerald, being a non-resident, was not liable, although transiently within the state at the time, to have his property attached as an absconding or concealed debtor, but ought to have been proceeded against as an absent debtor.

Secondly. Because the creditor, who obtained the attachment, being also resident abroad, had no right to this remedy against Fitzgerald, if the latter be regarded as an absent debtor. We think both these objections are well taken.

The act throughout contemplates two classes of debtors, those who reside within, and those who are absent from, the state. Against the first the proceedings are more summary, as they ought to be, and trustees are appointed in three months, while no such appointment, as it respects the latter, can take place in less than a year.

The oaths, on which the attachments are obtained, also differ. Against an absconding debtor tbe party swears, among other things, that his debtor has departed the state, with intent to defraud his creditors of their just dues. Now this allegation could hardly be made with respect to a person residing abioad, and who had left the state with a view of returning to his family.

The notice also given to the absconding debtor contemplates his being a resident. He is directed to return and pay his debts. This would be a singular request to make of a man who resided permanently abroad.

One of the ways, too, in which the attachment against an absconding debtor is to- be superseded, shows that he must be a resident. For part of the condition of the bond, which is required of him, by the seventh section of the law is, that he shall prove himself a resident within this state. This can hardly mean a residence of a temporary nature, but one permanent and fixed.

■^Independently of these distinctions, which are to be found in the act itself, it would be rigorous and unjust to expose the property of an absent debtor to so serious a process, merely because he may have concealed himself for a few days, to avoid being arrested when in a foreign country, where, from his situation, it must be extremely difficult to obtain bail. There is certainly more impropriety in a resident debtor shutting himself up to avoid his creditors, and the ordinary process of law, than there would be in a stranger’s pursuing the same course.

We also think that an absent creditor, such as Galway is, cannot proceed, by an attachment, against the estate of his absent debtor. The 23d section confines this remedy to the estates of debtors, who reside out of the state, and are indebted within it. By this mode of expression, we understand that the debt must be due to a person residing within the state, and not a stranger who may be here transiently. It is very well to give our own citizens a remedy over the property of their absent debtors, but it would be harsh and impolitic to extend this remedy to strangers, wbo might pursue tbe property here, for the sole purpose of seizing it, and by this means drive its own* ers to a settlement on very unequal terms, or compel him to litigate in a distant forum, when perhaps both the parties, residing near each other, ought possibly to be left to apply to the tribunals of their own country. For these reasons the attachment must be superseded.

There is some controversy as to the place of Fitzgerald’s residence. It appears that he is a subject of Great Britain, and that he has been latterly trading in several of the West India islands, and has never been in this country until a short time before the attachment. He came here on a commercial adventure, without any idea of settling among us, or of not returning as soon as his business was settled. This is enough to satisfy us he is a non-resi dent. If he led so roving a life abroad as to render it difficult to fix on his domicil, it will not make, him a resident of this state. He still remains an absent debtor, the animus revertendi having never been laid aside.

Kent, Oh. J. and Spencer, J. gave no opinion, not having heard the argument.

Supersedeas awarded.


author: Kent, Ch. J.

text:
    *Munro against Alaire.
    1. If a submission be “ so that the award be made in writing, ready to ba delivered," it need not be stated m todidem verbis, if circumstances from whence it must necessarily be inferred that it was in writing, be averred Therefore, alleging it to have been in “form following,” when it .contains a reference to its date, and stating in an averment “after the date thereof" and a rejoinder specifying a fact “before the date of the award,” are sufficient circumstances to show the award was in writing, and the imperfection, if any, in stating the award, is cured by the rejoinder.
    2. An allegation that an award was made, necessarily implies it was ready to be delivered.
    3. Though an award mention a thing by a different name than that by which it is described in the submission, it is not on that account an award on a matter out of the submission, if it appear, by the award, that it is the same thing mentioned in the submission, and, in such case, if the breach be assigned, on that very thing, by the name given to it in the award, it need not be averred that the thing mentioned in the award, and that described in the submission, are one and the same thing.
    4. A submission may be of matters concerning the realty.
    6. Divers other matters in a submission extend to real as well as personal concerns.
    6. An award directing an exchange of lands is good.
    Í. A submission of “ divers other matters ” is equivalent to a general submission of all questions and controversies between the parties, and, under it, general releases may be awarded.
    8. If a special matter be submitted, and a general release awarded, it enures only to the matter submitted.
    9. An award, to be iSmtual, need not be equal.-
    10. It is no objection to an award ordering general releases that one party is directed to perform his part before the other releases, especially when the party, to whom the general release is ordered to be first given, is directe'd to do certain acts not dependent on the releases.
    11. On a penal bond within the statute for the amendment of the law, the plaintiff must assign all the breaches he means to go for, the act being compulsory, and may assign them either in the declaration, or when he replies, and in assigning his several breaches he need not say “ and for farther breach according to the statute,” ut stmb.; but if necessary, advantage of the omission can be taken only on special ‘demurrer.
    12. After a plea ofno award, a rejoinder confessing and avoiding the award is a departure.
    13. A recital in a deed, anterior to a submission to arbitration, cannot be pleaded as an estoppel to a subsequent award.

      14. On a venire twm, guam, the plaintiff has it in his election to assess con tingent damages on the trial in fact, before arguing the demurrer or argue the demurrer first and assess his damages afterwards.
    ON demurrer.
    The plaintiff declared in debt on a bond, the condition of which, as set out on the oyer, stated “ that sundry controversies subsisted between the plaintiff and the defendant, and Callicia Alaire, touching the division fences between their farms, at Mamaroneck, and sundry roads and paths claimed by each party, and divers other matters and that being desirous of terminating the said controversies equitably, they had submitted to the award of Jonathan Ward and Samuel Youngs, as arbitrators, touching the premises, so 'that it be made, in writing, ready to be delivered on or before the 15th day of October instant.”
    To this the defendant pleaded, 1. Mm est factum; and, 2. Mil agard. On the first, issue was joined, and a venire facias tarn guam sued out, on which the jury found for the plaintiff on the first plea, and assessed contingent damages, to the amount of 600 dollars for the breaches subseqently mentioned. Upon which point a short case was annexed to the demurrer book.
    To the second plea the plaintiff replied, setting forth an award directing, 1. All suits between the parties to cease, and be no further prosecuted, and that each should pay his own costs; 2. That the defendant and Callicia should, on or before the 1st'day of November then next, convey unto the plaintiff, in fee, a certain piece of salt meadow, in Mamaroneck, commonly called Peter Alaire’s road to his Salt Meadow, and deliver the deed, on or before the said 1st day of November; 3. That the plaintiff should, on or before that day, convey, in fee, to defendant and Callicia, a certain piece of salt meadow and upland, situate at. Mama-roneck, being two rods wide, (describing it by metes and bounds,) reserving to himself and his heirs, at all times, a right to pass and repass, across and upon, the salt meadow and upland, and every part thereof, with borses, cattle, &c. and should deliver tbe deed for tbe same on or before tbe said first day of November, paying at tbe same time to them, or one of them, tbe sum of twenty dollars; 4. That tbe plaintiff should, on or before tbe 15th of April then next, erect, and for ever keep up, a sufficient fence, therein described; 5. That tbe defendant and Callicia should, on or before said 15th day of April, erect, and forever *keep up, a sufficient fence specified in tbe award, and that tbe parties should, within twenty-two days thereafter, mutually exchange, by deed, two pieces of ground, of one and two square rods, divided by tbe said fences, tbe said plaintiff reserving a right and privilege to pond and drown tbe sedges growing on part of tbe land so to be exchanged; 6. That tbe plaintiff was seized in fee of, and should bold, a certain road by, through, and upon tbe farm, formerly of tbe defendant, and now of tbe plaintiff, as therein described, for tbe exclusive benefit of tbe plaintiff and tbe defendant and Callicia, to be open at tbe end adjoining tbe turnpike; 7. That the plaintiff should have full right to repair tbe said road, and to keep it in repair in such manner as should be most expedient, and that the defendant should not interfere therein, and that all swing gates erected thereon should not swing into the road but into tbe lots; 8. That tbe water fence should be maintained by them jointly, and that tbe parties respectively should maintain certain division fences; 9. That the" defendant and Callicia should, on or before tbe 1st of November aforesaid, execute a general release of all demands, &c. to tbe date of tbe submission, and that, so soon as tbe defendant and Callicia bad complied with tbe award; tbe plaintiff should execute alike release. Tbe plaintiff then averred that, on bis part, all actions bad ceased, that be had offered to execute tbe deed, and pay the twenty dollars clirected', and to exchange, and was still réady so to do, &c. and after protesting that tbe defendant bad not, in any thing, kept the award, assigned as breaches tbe not granting the deed for the salt meadow, and the not executing the release of all demands. The defendant rejoined that the plaintiff ought not to be permitted to say that the defendant did not convey, &c. nor release, because, by a certain deed of the 16th May, 1801, reciting that each party was respectively seised of certain land therein mentioned, and was thereto appertaining, respecting which there were controversies, for putting an end to which the plaintiff granted to the defendant a certain way, and that the defendant was thereof seised in fee; and then averred that the piece of salt meadow, called Peter Alaire’s road to his Salt Meadow, and described in the breach first assigned, is one of 'the ways in the said deed, in which the plaintiff and defendant are therein alleged to be respectively seised.
    General demurrer, inde, and joinder.

      JEmott, in support of the demurrer.
    The rejoinder is *clearly a departure. The questions, therefore, will be on the replication. It is necessary, therefore, to consider whether the award be void, and if not, whether the replication is good. It is immaterial to discuss the validity of the award in all its provisions; if it be so in some it is sufficient, provided we can show certainty and mutuality, though it may be bad in others. Foxy. Smith, 2 Wils. 267; Addison v. Qray, ibid. 298. Peleases and conveyances were ordered in these cases, and no objection taken. The award, then, is good in those parts, and as it is on them that we have assigned the breaches, we are enr titled to judgment, though the arbitrators may have gone beyond their authority in ordering the road. If the breaches be well laid, still it may be made a question whether double breaches can be well assigned. This will turn upon whether arbitration bonds are within the statute. Whatever may have been the ancient determination on this point, modern decisions allow of double assignments. Fox v. Smith, 2 Wils. 267. If this be allowable in Westminster-Hall, it is certainly so here. The English statute is, (8 & 9 "W. III. c. 11,) “ that in all actions, upon any bond, or on any penal sum, for non-performance of any covenants or agreements, in any indenture, &c. tbe plaintiff may assign as many breaches as be shall think fit.” Our law is greatly broader. It says (1 Eev. Laws, 349,) that “ in all actions, upon any bond, other than for the payment of money, the plaintiff may do the same.” It gives the right wherever the bond is not for the payment of money alone. But if this be not so, and the replication be faulty on that account, the defendant ought to have shown it as a cause of special demurrer. The awarding of general releases may be relied on as proving that the arbitrators exceeded their authority. The submission is not only with respect to the road and fences, but of “ divers other matters.” Allowing, however, that it is so, the other side ought to have made it appear. The award is “ of and upon the premises,” and in such cases it is laid down to be a staled rule, that if the words used in them be, in their nature, more comprehensive than the submission, yet it shall be intended that there was no other matter between the parties to lay hold on than that which was submitted, if the contrary be not shown. Kviqhi v. Burton, 6 Mod. 232 ; Arnote v. Bream, ibid. 244; Belly. Oipps, 2 Ld. Baym, 1141; Hooper v. Pierce, 12 Mod. 116; Lee v. JElkins, ibid. 585; Banfill v. Lee & Jeffray, 8 D. & E. 571. The doctrine *is fully stated in Hill v. Thorn, 2 Mod. 309. "If there be a submission of a particular difference, and there are other things in controversy, if in such a ease a general release is awarded, it is ill, and it must be shown on the other side, to avoid the award for that cause.” It may be argued against us that the award does not appear to have been in writing. But wherever circumstances are so set out as to show a particu lar fact must have necessarily taken place, it is not necessary to state that fact in express terms. Therefore, if an award be made, the plaintiff need not state it was ready to be delivered. Beusby v. Manning, Carth. 159. Here the award is said to have been “ in manner and form following,” and tbe plaintiff alleges that be did, “ after tbe date of the award, and before tbe time limited therein,” &c. If it bad a date, and contained a limited time, it must have been in writing, and being but matter of circumstance, is cured by tbe defendant’s confessing and avoiding tbe award in bis rejoinder. Aylet v. Williams, 3 Lev. 193 ; Mallet v. Mallet, Cro. Eliz. 708 ; Com. Dig. tit. Pleader, C. 85, E. 37. Tbe defendant “says” on or before tbe first “day of November, ensuing tbe date of tbe said award, ” and goes on to set forth what be relies on as an estoppel. From tbe case accompanying tbe demurrer book, it appears that tbe defendant denies our right to sue out tbe venire tarn quam, and insists we should first have argued the demurrer. But whenever the plaintiff is placed, by tbe defendant, in such a situation as to have an issue in law, and an issue in fact, depending at one and tbe same time, be may at bis election try either tbe one or the other first. Codice v. &'ayer, 2 Burr. 753; Dubberly v. Page, 2 D. & E. 394. It may perhaps be more advisable to argue tbe demurrer first, but on that tbe plaintiff has a right to determine. In 5 "VYentw. PI. 17, 36, there is a precedent fully in point.

      Woods and Benson, contra.
    Though tbe objection as to the award not being stated to be in writing, may be more a formal than a substantial objection, still it is a good one. JenMnsonv. Allenson, 3 Keb. 556; Hendersons. Williamson, 1 Stra. 116; Sallows v. Girling, Cro. Jac. 277. Com. Dig. tit. Arbitrament. Tbe mere reading of tbe submission shows that tbe arbitrators have exceeded their authority. Controversies respecting roads and fences were tbe only matters submitted. They, however, proceed to award general releases. It is attempted to justify this by the words “ divers other matters;” but tbe generality of these terms must be restrained to tbe things specified in tbe submission. They refer to tbe ^matters in dispute, and are thus expounded in all other cases, upon principles of legal construction. 2 Bol. Abr. 409, pi. 3. Diggers case, 1 And. 64. Cole v. Knight, 3 Mod. 277. So, general releases, on a special submission, are construed to relate only to tbe matter in arbitration. Pickering v. Watson, 2 Black. Bep. 1117. There was no right to determine anything respecting the meadow, and it is not averred that the meadow was a road. Wherever an award varies from the submission, in describing the subject of the arbitration, it is bad, unless it be described by two names, and then it must aver they are one and the same. Withers v. Drew, Cro. Eliz. 676, the submission was about an enclosure between Barton Down and North Down, the arbitrament was of an enclosure betwixt the defendant’s down and the down of J. S. and there was no averment that they were all one. In consequence of which, as the breach was alleged in that point, it was held the plaintiff could not have judgment. The assignment, therefore, of the plaintiff, is on a vitious part of the award, and not to be supported on his own doctrine. Fox v. Smith, 2 Wils. 267; System of Pleading, 105. It may be questioned how far even an averment would have cured the fault. Where an award is on the face of it beyond the submission, an averment will not help. Bacon v. Dúbarry, 1 Ld. Eaym. 246. It is impossible the salt meadow could have been in dispute. The rejoinder shows it was before settled, and the demurrer admits it. There is also a want of mutuality. The releases of the meadows are ordered, on the one side with a reservation of a right of way, and on the other to be made absolutely. If the award should be good, still the assignments are bad. After one breach set forth, the record should have stated “ and for further breach according to the statute,” &e. Hardy v. Bern, cited in Boles v, Bosewell, 5 D. & E. 541. This is necessary, because the statute (1 Bev. Laws, 349) is compulsory, and the plaintiff cannot elect to proceed at common law. The indenture in the rejoinder is well pleaded, and the recital alone an es-toppel. Shelly v. Wright, Willes, 13. The action ought to have been covenant, if damages for the breaches were to •have been recovered. The declaration is in debt on the bond, and ought to have been for the penalty. The assignment of breaches in the replication is incongruous to the nature of the suit brought. It is clear the trial for the assessment of damages ought not to take place till after judgment on the demurrer, because, if it be determined that the award is bad, no damages can have accrued.
    *Harison, in reply.
    This mode of declaring on the bond, and assigning breaches in the replication has been uniformly pursued. Goodwin v. Crowle, Cowp. 857 ; Boles v. Bosewell, 5 D. & E. 588 ; Drage v. Brand, 2 Wils. 377. It is not necessary to the mutuality of an award that it should be equivalent in value. Justice may require that one party should receive more than the other. Independent of the authorities cited in support of the present form of action and replication, the spirit of the act, (1 Eev. Laws, 346,) “ for the amendment of the law, and the better advancement of justice,” require that such should be the mode of proceeding. The statute was framed to prevent the necessity of driving a defendant into equity, where judgment had passed against him for a penalty of a bond, when only a trifling damage had been sustained by the breach of it. It may, perhaps, therefore, be said, the statute is compulsory, and this the only legal method that could have been adopted. If so, the trying the issue before arguing the demurrer, was a matter of election in the plaintiff. Should the cause go against him he pays costs. If otherwise, he gains time, by having the assessment ready made, in case the determination of the court should be in his favor.
   Kent, Ch. J.

delivered the opinion of the court. Upon the record now before the court, the material questions that are raised respect the replication. The counsel for the defendant contend it is bad; 1. Because there was no averment that the award was in writing, or ready to be delivered; 2. Because tbe award set forth orders matters to be done that were not in tbe submission; 3. Because tbe award is not mutual, as tbe plaintiff’s deed was to contain a reservation, and as bis general release was not to be made till tbe defendant bad performed tbe award on bis part; 4. Because tbe assignment of breaches was void, inasmuch as part of tbe matter assigned was void ; and that only one breach ought to have been assigned, and that should have been in tbe declaration. Tbe first objection is without foundation. Tbe award is stated to be in tbe form following,” and in tbe body of it, as set forth, there is a reference to tbe date of it. It must, therefore, be intended to be in writing, as tbe circumstances which are averred necessarily imply it; and it appears from tbe case of Reusby v. Manning, Carth. 159, 3 Mod. 333, that an award may be so intended, although the fact be not specially stated. It may further be added, that the replication is, in this respect, agreeable to an approved precedent in 3 Ld. Baym. 106. But if '"this omission was to be deemed an imperfection in pleading, it would be cured by the defendant’s rejoining over, and thereby admitting an award in form. Com. Dig. tit. Pleader, C. 85. Nor was it requisite to aver that the award was ready to be delivered. This is also intended, and is implied in the allegation that it is made. If the fact were otherwise, it would be incumbent on the defendant to show specially that the award was not ready. Bradsey v. Clyston, Cro. Car. 541; Carth. ubi sup. Marks v. Marriot, 1 Ld. Baym. 114.

The next question is of more importance, and relates to the merits of the defence. The submission was of sundry controversies, touching the division fences between the farms of tbe parties, and touching sundry roads and paths, claimed by each, and touching sundry other matters. The award, among other things, orders the defendant to convey to the plaintiff a certain piece of salt meadow; but it is described as known by the name of Peter Alaire’s road, and that it runs through the land and meadow of the plaintiff, and contains sixty-six square rods. It is apparent, then, that the meadow here mentioned must be one of the roads, or paths, referred to in the bonds of submission, as it has the name and quality of a road or path ; and although the release of it concerns the realty, and transfer land, yet that was the very matter submitted. A controversy concerning a road or path, may perhaps, in strict technical language, relate only to an incorporeal hereditament, or right of way, but in common parlance it will equally refer to a claim to the soil. In arbitration bonds, which are to be liberally expounded, and, as in the present case, refer to divers other matters not named, it would be considering the words too curiously to confine them to the first construction. The parties were also, by the award, to exchange with each other, small strips of land of one and two rods square. These strips must be viewed as connected with the subject of the division fences, and to have been part of that controversy, as the award states that they arose on the settlement of the division fence. We do not perceive anything in the award that may not be included, even in the subject matters of the controversy specially submitted, except it be that part of the award which directs general releases. But the submission is “ touching divers other matters," as well as those particularly mentioned. The word's used are operative and equivalent to a general submission of all questions and controversies between the parties. They are used as forming an independent *part of the submission, and it is impossible not to perceive that the parties intended b.y them, to embrace different and more general matter than that which had already been specified. Questions concerning real property may be submitted without being specifically named. A submission of all demands includes questions concerning real as well as personal property. Marks v. Harriot, 1 Ld. Raym. 114. The law does not now require a a specific submission as to one kind of property more than as to the other. The r.ule, in an analogous case, in the construction of deeds, is, that if a general clause be followed by special words which accord with the general clause, the deed shall be construed according to the special matter; but that if a deed contain special words, and conclude with general words, the general as well as the special words shall stand, for generalis clausula non porrigitur ad ea quae antea specialiter sunt comprehensa. Edward Altham's Case, 8 Rep. 154, b. But if the submission was not to be construed beyond the special matter, yet the release, though general in terms, would be held to enure only to the matter submitted, and as no other differences between the par ties have been shown, no other are to be intended. Simon v. Gavil, 1 Salk. 74. Sill v. Thorn, 2 Mod. 309. Pickering v. Watson, 2 Bl. Rep. 1117. Keen v. Goodwin, Bunb. 250. Stephens v. Mathews, cited Ld. Raym. 116. So that even, in this view of the question, the award is good.

Another objection to the award is, that it wants mutuality. It is not requisite that the same acts, in the same unqualified manner, should be awarded on each side to render the award mutual. The reservation, in the plaintiff’s deed to the defendant, might have been the ground of one of the questions, controverted, and it may have been proved to the satisfaction of the arbitrators, (and so we are to intend,) that the plaintiff had a valid claim to the right of way so reserved. If an award puts a final end to the controversy, and awards mutual releases, there is no ground for the objection that it is not mutual. Bacon v. Dubarry, 1 Ld. Raym. 246, the second point. Kyd on Awards, 148, 149, The objection that the defendant is first to perform and execute on his part, before the plaintiff is to execute the general release, was also raised in the case of Maries v. Marriot, and there overruled because the defendant’s release would not be construed to deprive him of his remedy on the bond, if the plaintiff should refuse to perform on his part, and because other matter, as is the case here, was awarded to be done by the plaintiff, without being dependent on the *releases. None of the objections to the award appear, therefore, to be valid.

The last point made by the defendant is on the assignment of the breaches. It was urged that the plaintiff could not regularly assign breaches in the replication when the declaration was in debt for the penalty, and that if the plaintiff intended to go for damages, he ought to have brought his suit in covenant. We apprehend, however, that the practice is too well settled to be now shaken by this objection. The plaintiff may, perhaps, pursue either mode at his election. He may declare in debt for the penalty, and assign breaches at the same time in his declaration, as was done in the cases of Goodwin v. Crowle, Cowp 357. Drage v. Brand, 2 Wils. 378, and Roles v. Rosewell, 5 D. & E. 538, or he may declare simply in debt for the penalty, and leave the assignment of the breaches till the replication, where he must assign them, if the nature of the plea demand it. This course was pursued in the cases of The African Company v. Mason, 10 Mod. 227. Cornwallis v. Savery, 2 Burr. 772. Cooke v. Colcraft, 3 Wils. 380. Shum and others v. Farrington, 1 Bos. & Pull. 640, and Strange and others v. Lee, 3 East, 484. It is to be observed that all these last cases are upon bonds with conditions for the performance of covenants, and the former cases arise upon articles of agreement with a penalty. In the case of bonds therefore, it seems to be the uniform course to declare simply for the penalty, taking no notice of the condition, and to leave the assignment of breaches to arise afterwards, in consequence of the plea. Lord Coke, (10 Rep. 94, a.) cites an instance as early as Ed. IV. of this mode of declaring, and assigning a breach on an obligation with a condition. But it is further objected, that the plaintiff, as he declared in debt for the. penalty, ought to have, assigned only a single breach. This was the common law rule, because a single breach worked a forfeiture of the penalty, and the assigning of two breaches was considered as rendering the plea double. Cro. Car. 176; 1 Roll. Rep. 112, and the cases of The African Company v. Mason, 10 Mod. 227, and Cornwallis v. Savery, 2 Bur. 772, since the act of W. III. seem to have admitted the same rule. But subsequent cases have adopted a different practice under the act of W. III. and allow of the assignment of double breaches, even in cases where the plaintiff declares in debt for the penalty. This was done in Goodwin v. Crowle, and Drags v. Brand, and also in Hardy v. Bern, cited in 5 D & E. 540, (which were suits for the penaltjq in articles of agreement,) and also in the case of Strange and others v. Lee, which was upón a bond for the performance of covenants. The assignment of double breaches was held, in these cases, to be an election of the plaintiff to proceed under the statute, although he had not named the statute in express words, and which omission is, at any rate, but mere form, and bad only on special demurrer, though we incline to think it altogether unnecessary to have any express reference to the act. It was also held to be compulsory on the plaintiff to proceed under the statute in cases within the provisions of it, and that he must assign the breach of such covenants as he proceeds to receive satisfaction for. Our act is more comprehensive than the English. It reaches to every case of bonds, with any condition other than for the payment of money, and it is in every such case compulsory on the plaintiff to assign breaches, and to have bis damages assessed. Any other construction would defeat, in a degree, the equitable provisions of the statute, and force the defendant into equity for relief.

The rejoinder is manifestly bad. It is no answer at all to one of the breaches assigned, viz. the non-execution of the general release, and as to the other matter set forth, it is a departure from the plea. The estoppel which is relied on, as arising from the recital in a deed executed by the plaintiff, long anterior to the bond of submission, cannot apply. The submission to arbitration, and the award, have put an end to questions and pretensions which before existed, relative to the matters submitted, and the rights of the parties must now be ascertained by the award itself. We are of opinion, therefore, that upon the demurrer in this cause the plaintiff is entitled to judgment.

As to trying the issue in fact, and assessing contingent damages before arguing the demurrer, the practice is settled that the plaintiff has a right to elect to carry the cause down to trial, either before or after the demurrer is determined.

Judgment for the plaintiff.

       Or it appear by the replication to the plea of mil agwd. As where the plaintiff in his reply stated that the award was ready to be delivered to him. Pratt v. Hackett, 6 Johns. Rep. 14. To constitute it an award, it must he signed by all the arbitrators, though they act under a parol submission. Green v. Miller, ib. 39.

       An award by an umpire, stating that he took upon himself the burden of the umpirage, implies that he awarded on the matters submitted. M'Kinstry v. Solomons, 2 Johns. Rep. 57.

       An award that the one party shall pay a certain sum to the other, Is mutual and final, without mentioning a release. M'Kinstry v. Solomons, 2 Johns Rep. 51.

         So to a plea setting forth an award, a rejoinder that the award was not final. Barlow v. Todd, 3 Johns. Rep. 367.

       What shall be deemed a good submission and award, considered in Hays v Hays, 23 Wend. 363. See cases relating to awards in, 22 Wend. 125.


author: Spencer, . J.

text:
    Williams against Delafield.
    The arrival of a vessel, at a port insured to, from a port insured from, though she may have sailed subsequent to the vessel insured, affords no ground for presuming the assured had any knowledge of the bad weather the arriving vessel had sustained, nor that the assured received information of the sailing of his vessel by the one which arrived, when circumstances show it might have been received in another way. A representation saying, “lam informed of the vessel’s sailing, and she is out this day twenty-six days,” is not an assertion as a fact, that she is out twenty-six days, and, therefore, is not a misrepresentation, though she may have been out twenty-seven. If a vessel be insured as out of time, and she be out one day more than the information received specifies, if the jury do not find it to be material, the court will not say it is so.
    Assumpsit upon a policy, on the schooner Margaret, from Cape Francois to Baltimore.
    The insurance was effected *on a written representation, dated Baltimore, 3d January, 1802, but' in fact, extracted from a letter of that day, addressed by the plaintiff to his broker, and was in these words : “I have information of her sailing, and she is out this day twenty-six days.” From this circumstance 7 per cent, was paid on the vessel, though her cargo had been insured at four,: but the three per cent, extra was given in consequence of her being out of time.
    On the trial it appeared that a Captain Weaver, who had sailed from Cape Francois on the 13th of December, 1801, had arrived at Baltimore on the 28th of the same month, having experienced a storm of 39 hours, which he communicated to his owners, and that his arrival had been mentioned in the newspapers of that place. After being there several persons inquired for the Margaret, one of whom, but not the plaintiff, expressed his fears of her being lost. At the time of making claim on the uñderwriters, there was exhibited, as proof of loss, a certificate of the Margaret’s having sailed on the 7th of December, 1801, from Gape Francois for Baltimore.

      This was enclosed in a letter, dated Baltimore, 18tb of December, 1802, in. wbicb tbe plaintiff said, “ My information, with respect to tbe sailing of tbe Margaret, was only verbal from a captain who bad just arrived from the Cape, and mentioned that tbe Margaret bad sailed three days before him. This, from the passage which he said he had had, would make her time of sailing on the 8th, but from the certificate which I received from the West Indies it appears she sailed on the 7th. I do not expect that one day can make any difference.” These circumstances and papers being given in evidence, the defendant contended the policy was void from misrepresentation and concealment. The judge charged, that if the jury believed the plaintiff’s information, at the time of the Margaret’s sailing, was derived from Captain Weaver, who communicated also the storm he had encountered, which was withheld, and that it was material whether the vessel sailed on the 7th or 8th of the month, they ought to bring in their verdict for the defendant; if otherwise, for the plaintiff, in favor of whom the jury found.
    Pendleton, for the defendant.
    We apply for a new trial on these grounds; 1. There were material concealments, which annulled the contract; 2. There was a material misrepresentation in stating the Margaret to have been out 26 days. The circumstances of the arrival oí Weaver being announced *in the newspapers, and the various inquiries made respecting the Margaret, are enough to presume the assured informed of the storm which Weaver encountered. This, being on the same voyage, ought to have been communicated, as it is probable vessels pursuing the same route, experience the same weather. It would therefore, have increased the risk, and consequently the underwriters’ calculation. An omission to disclose an important fact, though it be through accident, or inadvertence, is fatal. 1 Marsh. 347, 349 ; 1 Emer. 20; Fillis v. Bruton, Park, 182 ; T Marsh. 348. The assured is bound to be precisely correct when be undertakes to specify time. A suppression of part of wbat is known destroys tbe policy. Batcliffe v. Shoolbred, Park, 181; IP Andrews v. Bell, 1 Esp. Eep. 873, is within the letter of the present case. There the assured had .information, by a letter dated the 8th of November, that his vessel was ready to sail. On the 2d of December, after the arrival of a ship which sailed on the same day as his, he insured, without communicating this circumstance, and Lord Kenyon ruled it to vacate the policy. So in Booh v. Thurmond, Mill. 57, and Stewart v. Morrison, the withholding that the information was received by a subsequent vessel, was held to avoid the contract. However innocent a concealment may be, and though by a broker, the effect is the same. Shirley v. Wilkinson, Doug. 306. The whole of what the assured knows ought to be laid before the underwriter. M’Dowal v. Frazer, Doug. 247. If from what the plaintiff was told, he drew an inference of a fact, and asserted it to be so, he took the risk of that upon himself. He here says the vessel was out 26 days; she had been out 27. Though this was gathered from information, it was positively asserted, and, being untrue, there can be no recovery.

      Biggs and Badcliff, contra.
    The premium paid in this case was expressly for a vessel out of time, and on that account an advance of 75 per cent was made. To a vessel avowedly out of time a day is immaterial; as for a vessel in time, a variation of the period she has been out is unimportant. In M'Kay v. Bhinélcmder, 1 Johns. Case, 408, decided in 1800, the representation was, that the ship had been out nine weeks, when, in truth, she had been out ten; but, as it was within the period of the voyage, it was held immaterial. Whether a fact be so or not is for jury deter mination, and they have, in this case, decided the question The authorities cited apply where information is suppressed, or unintentionally omitted *in a material point, or where the party undertakes to affirm positively, and it turns out otherwise. Neither of these classes include the present case. The argument of concealment arises from an unwarranted presumption, first that the knowledge of the sailing of the Margaret was derived from Weaver, and then another presumption that he communicated an account of the storm he had encountered. By comparing the two letters of the plaintiff, read in evidence by the defendant, and, therefore, his testimony, it appears that the information received by the plaintiff was from a captain who sailed three days after the Margaret. This must have been then by a person who left the Cape on the 10th. Weaver sailed on the 13th. In the next place, if the computation of time be that by which a seaman would reckon, and, as it seems to have come from the master of a vessel, this is likely, the Margaret would, according to the computation allowed in Dennis and Williams v. Ludlow, (ante, 116,) have been out exactly 26 days. It is necessary only to add, that the plaintiff gives the time merely as matter of information received, and not as a positive assertion.

      Boyd and Pendleton, in reply.
    If a vessel be out of time, every day is more and more important. Whether a representation be material or not, is a question of law arising from the fact, and, therefore, not for a jury, but the court to determine.
   Spencer, . J.

delivered the opinion of the court. The motion for a new trial is made on two groujsds; 1. A material concealment ; 2. A material representation as to the time the vessel was out. The concealment is supposed to consist in not communicating the' storm, and all that Captain Weaver might have related. B ut Captain Weaver does not pretend that the' plaintiff knew of his arrival. He states that about a week 'after he arrived, a Mr. Hillian, wbo was interested in tbe cargo of tbe Margaret, inquired of him when gbe sailed, expressing at tbe same time bis fears that she was lost. To make out tbe misrepresentation, tbe defendant relies on tbe two letters adduced by bim in evidence; contending that by tbe first there was a positive assertion of-tbe Margaret’s being out 26 days, when by tbe second she appears to have been out 27.

At tbe trial tbe judge fully submitted tbe cause to tbe jury, on tbe point of concealment, expressing bis opinion to them pretty strongly that there bad been a material concealment; *witli respect to tbe difference cf tbe day, be intimated an opinion that it was not r, material misrepresentation. Tbe jury by their verdict, have considered that there were no material concealments; pnd, unless tbe evidence preponderates against it, it ought not, on this point, to be disturbed. There was no evidence that tbe plaintiff knew of tbe gale which Weaver bad encountered. He might or be might- not. To intend that he did not know of it, and concealed it from tbe defendant, s to intend from mere possibilities that be bad been guilty )f a fraud. This would be a presumption against legal maxims, and, in this stage of tbe cause, against tbe solemn finding of the jury. The charge of withholding information from tbe assurer, as to tbe arrival of a vessel at Baltimore, which sailed three days after tbe Margaret, is equally unfounded. The plaintiff’s letter of tbe 3d of January, 1802, in which be observes, “ I have information of her sailing,” sufficiently apprised tbe defendant that a vessel which sailed with or after the Margaret, had arrived. If, however, there is any pretence for deeming this a concealment, tbe jury have passed upon it, and considered it an immaterial circumstance. With a verdict, on these grounds, tbe court can perceive no reason to be dissatisfied.

Tbe fact of misrepresentation is alleged to consist in tbe plaintiff’s stating, as an independent and substantive fact, that tbe Margaret bad been out but twenty-six days, when in truth she bad then been out twenty-seven. But the plaintiff did not know the fact to be different from wbat be represented it. The court do not mean to decide that a misrepresentation of one day may not be material, and avoid a policy. They forbear expressing, in this ease, an opinion on that point; but they are clearly of opinion, that when the plaintiff represented, “ I have information of her “ sailing, and she has been out this day twenty-six days,” in good sense and strict construction, the information was applicable as well to the sailing as the time she had been out. The court, therefore, deny the motion, with costs.

New trial refused.

         See Ely v. Hallett, ante, 57, and note to that ease.


author: *Livingston, J.

text:
    The People against Van Wyck.
    A siibpma ticket for a person to attend as a witness in this court is good, though it docs not specify the place where to he held. So if it be to testify in an indictment in this court, when that against the party named is in tho oyer and terminer. Cause may be shown against a rule for an attachment by affidavit; the party not being bound to appear in person.
    ON a motion by the attorney-general for an attachment.
    The ground of application, and objections to it, being contained in the decision, it is unneecessary to relate the argument by counsel.
   *Livingston, J.

delivered the opinion of the court. In November last a rule was obtained by the attorney-general, calling on the defendant to show cause, on the first day of this term, why an attachment should not issue against him for not appearing as a witness !"ei ucen the People and Richard Riker, after being regularly served with a subpoena. The defendant shows for cause, and by affidavit, without personally appearing in court, that “a ticket, which is annexed to his affidavit, was served on him, but that no subpoena was shown to him at the time and further, that there was an indictment pending in the oyer and terminer against Eiker, who was bound to'appear in that court, and not at the term.”

It is insisted that the defendant should have shown cause in person, and that the facts disclosed by his affidavit, if cause can be shown in that way, are not sufficient to prevent the rule for an attachment being made absolute.

In the case of The People v. Freer, 1 Caines’ Rep. 485, cause was shown, as here, by affidavit, and although the court say that “ on such occasions the defendant ought to appear in person and- answer,” that point was not raised, and of course ought not to be regarded as settled.

Nor is it important to ascertain what is the mode in England. In a point of practice, and this is nothing more, we certainly may adopt a rule for ourselves, and alter it again if it become inconvenient. Ve all think it would produce great oppression, and unnecessary expense, to compel a party, who may be perfectly innocent, on a rule to show cause, to appear in person. "Why bring a man from Ontario. to New York, to swear that he was sick, and therefore unable to attend on a subpoena, whén that fact can be as easily communicated by his affidavit properly taken ? An attachment might almost as well go in the first instance. We, therefore, think the defendant’s personal • attendance was unnecessary.

The merits of his affidavit are next to be examined. It appears by the ticket left with him, that the name of the city in which the court was to be held is omitted, Bodwell v. Willcox, ante, p. 104. The terms of this court, and the places of its meeting being regulated by a public act, we think the ticket good, notwithstanding this omission, especially too as the defendant does not pretend ignorance on this head, and is a counsellor of this court. Neither is it important that tbe indictment, on tbe trial of wbicb be was to testify, was found, and then pending, in tbe oyer and terminer. Tbe attorney-general could bave brought *it into tbis court for trial, on tbe return day of tbe subpoena, wbicb would bave beeen sufficient.

The greatest difficulty arises from tbe defendant’s denial tbat a subpoena was shown to him at tbe time of leaving the ticket. But as tbe officer who served it swears positively to tbis fact, we think some further explanation necessary. Tbe defendant does not say tbat a subpoena was at no time shown to him, nor tbat tbis was tbe only ticket he received. It is probable tbe officer, on recollecting tbe mistake, may bave returned and shown it, or tbat be made an entire new service, or that something may bave passed rendering tbe exhibition of a subpoena unnecessary. At any rate, we think tbis ma.tter ought to be further inquired into, and tbat therefore tbe rule for an attachment be made absolute.

Attachment ordered.


text:
    Jackson, ex. dem. Clowes, against Hakes, tenant.
    An ejectment is merely a possessory remedy, and tlierefore if a landlord, in possession, "bring it to bar the right of his absconding lessee, it cannot bo maintained.
    Woodworth (Attorney-General) moved to set aside tbe judgment and execution in tbis cause for irregularity, on affidavits, tbe facts of wbicb were shortly these:
    Tbe defendant, being a tenant, absconded whilst rent was in arrear, upon wbicb tbe lessor of tbe plaintiff took possession of tbe premises, and, when thus in perfect enjoyment of them, brought an ejectment under tbe 23d section of tbe act “ concerning distresses,” &c. (1 Bev. Laws, 142,) in order to bar tbe tenant’s right under the lease,,, as if the premises had been then vacant.

      Foot (District Attorney) strongly contended,
    that though the lessor of the plaintiff was then actually in the occupation of the lands, they were, even as to him, in the eye of the law, regarded as vacant, because the only possession known to the law was that of the tenant. That if this were not so, the landlord of an absconding tenant would be in a worse situation when in possession of the demised property than when out of possession ; because, if he was out of possession, he might, after a suit and lapse of six months, get into the possession and keep it; but if in possession, he was never sure of retaining it, as the tenant might, at any time, turn him out. From these considerations he insisted that the only mode of barring the interest of the lessee was by adopting such proceedings as he had in (he present case advised. , That they were grounded *on an affidavit which was framed, with the caution necessary, to comport with the peculiar situation of the lessor of the plaintiff, who could not swear there was no sufficient distress on the premises, because his own cattle 'were there, but that there was no sufficient distress belonging to the tenant.
   Kent, Ch. J.

Take the effect of your motion with costs. It is absurd to sustain a suit in such ’a case. It is against the whole theory of the action. The proceedings, are an absolute nullity.

Motion granted.


author: Per Ouriam

text:
    Sayer against Finck.
    An opinion of a plaintiff’s attorney, that a cause on the day docket will not be brought on, will not, in future, be a reason for setting aside an inquest, taken in the absence of the defendant’s attorney, though accompanied by a strong affidavit of merits, notwithstanding it was allowed in this case.
    Hopkins moved to set aside tbe inquest taken in tbis cause at tbe last sittings, New-York, on an affidavit by two persons, that tbe debt for wbicb tbe action was brought bad been paid, and on another affidavit by tbe defendant’s attorney, stating that be did not attend when the cause was called on, because, from a conversation with tbe partner of tbe plaintiff’s attorney, and who' bethought was attorney also for tbe plaintiff,-be was led to imagine tbe trial could not be bad on that day, as there were eighteen prior causes on tbe day docket, and that tbe plaintiff’s attorney himself would not attend.
   Per Ouriam

Let tbe inquest be set aside on payment of all costs. Tbe court grant tbis only under tbe peculiar circumstances of tbe case. It appears that the defendant’s attorney thought be was conversing with a persons who was acting as attorney for the plaintiff. Tbis belief might easily be induced from this circumstance,.that tbe attorney on record and thé person spoken with, were in partnership. It was, however, but an opinion of tbe adverse attorney that tbe cause would not be beard. We shall, in future, expect more explicit reasons for thinking a cause will not be brought on. Tbe affidavit of merits is very strong. Taking tbis, together with tbe misapprehension of tbe defendant’s attorney, that tbe partner of tbe plaintiff’s attorney was absolutely concerned in tbe suit, are tbe grounds of our present determination.

Motion granted on costs.


author: Spencer, J.

text:
    *Winter against The President and Directors of the Bank of New York.
    If two persons enter a bank at the same time, one with money and the other without, the latter of whom informs the cashier it is to be deposited on his account, this circumstance alone, without any acts of the other party confirming such account, will not justify the cashier in carrying the money to the account of the party saying it is his; if he do, and pay money or give credit, on the strength of such deposit, to such person, the bank must hear the loss if any arise.
    Assumpsit, to recover one thousand dollars bad and received by the defendants to the use of the plaintiff.
    Prom the evidence at the trial, these appeared to be in substance the circumstances of the case: The money in question .was one of several consignments to different people, shipped under regular bills of lading, from New Orleans to New York. On the captain’s arrival, as the consignees did not come for their property, he put the whole into a box, in order to deposit it into the bank, but when he got there he found the hours of business over, and the outer doors just closed. At this moment, one Arnold, with whom he had formerly been acquainted, stepped up to him, and told him, if he wanted to go into the bank, he might still enter at the back door, and that he would show him the way. This proposal being accepted, Arnold, followed by the captain with the cash, proceeded to the back door, and went into the bank. So soon as they had entered, Arnold, leaving the master with his .money, pushed on to a further part of the building, where the cashier was sitting, and informed him, in such a manner, however, as not to be heard by the captain of the vessel, that he had brought about $4,000 to deposit, which he begged to be received. This being consented to, he then requested to have given up to him, and obtained, a note that was over due, his check for $1,600 certified to be good, another note, under protest, credited to his account as paid, and a note of one Armstrong’s for $1,400, deposited as a collateral security for one of Ms own for $750. Having accomplished bis object be took bis leave.
    While these things were transacting with the cashier, the captain was inquiring of the porter and one of the clerks whether his cash could not, though after banking hours, be received for the night. Being answere'd in the affirmative, he asked at what hour he could come to count it; and, upon being informed the next morning at ten o’clodk, he assisted the clerk in removing it into a back room, where he left it and went away. On returning the morning after, he demanded his money which was delivered to him, when he counted it out and immediately after-wards inquired for the *cashier to deposit it with him, on account of the consignees. On going -to him an explanation took place, which ended by the captain’s showing the bills of lading, and the bank’s refusing to pay the money to the consignees, in consequence of which the plaintiff commenced the present action, and obtained a verdict. The defendants now applied to set it aside, as contrary to evidence.
    The only question was, whether the conduct of the captain was, from the testimony, such as to sanction the fraud of Arnold, and thereby throw the loss on the consignees, in capacity of whose agent he then acted ?
    The arguments of counsel being directed only to show how the balance of evidence would turn, and that being accurately weighed in the opinion of the court, it is unnecessary to do more than state the decision, which was delivered by
   Spencer, J.

After a verdict for the plaintiff, under an unexceptionable charge from the judge who presided, the court are called upon to set aside this verdict, as against the weight of evidence. There is no imputation of fraud or design either in the captain, Living, or the officers of the bank. But the question is, who produced the mistake ? 2 Wasb.' Eep. 245. It is a principle, not controverted,' that where one of two innocent persons must suffer by the act of a third, he who has enabled such third person to occasion the loss must sustain’it. Testing the evidence by this equitable principle, I proceed to examine the conduct of Captain Living; for, if there has been no culpability on bis part, the plaintiff is entitled to recover.

He states, that not haying been called on by the consignees of the money which he had brought from New Orleans, he thought it best to deposit it in the bank; he arrived there after it was closed, and there met with Arnold, by whose directions he went to the rear part of the bank, met with the porter and one of the clerks, to whom he communicated his wishes to deposit the money, and after some conversation it was left in the bank for safe keeping, Captain Living observing that he should come the next morning at the opening of the bank and deposit it. Arnold, it seems, informed the porter of the bank that it was his money, and this claim was twice repeated in the presence of Captain Living. If he had heard this conversation, and remained silent, it would have brought him within the rule of enabling a third person to occasion the loss. But -he says that owing to deafness he did not hear what passed. It has been urged that this infirmity of Captain *Living ought to have rendered him more cir-cumspeet, and, as he must have seen Arnold conversing with the porter, he should have been more explicit, having been warned that Arnold was a dangerous man. It is, we think, not a correct position, that,Living was blamable in not contradicting what he did not hear, and could not have imagined; the infirmity of deafness, instead of being a misfortune, would savor of culpability, and, inasmuch as Living was the bearer of the money, as he never enabled Arnold to occasion the loss, and the omission arose from the officers of the bank in not asking him if this money was Arnold’s, and as the whole merits of the ■ case have been considered by a jury, who have decided in favor of the plaintiff, we do not think it a verdict against the weight of evidence, and therefore refuse the motion for a new trial,

New trial denied.

       Money paid into the hands of a clerk in á bank, who is not the regular receiving clerk, nor at the time acting in aid of such receiving clerk, is not a payment to charge the bank; and if the clerk to whom it has been made abscond with, or embezzle the money, it is the loss of the person wto paid it to him. Manhattan Company v. Lydig, 4 Johns. Rep. 377.


author: LiviNGSTON, J.

text:
    Graves and Scriba against The Marine Insurance Company.

      V an insurance be on a return cargo, beginning the adventure “ from, and immediately following the loading thereof on board the said vessel," at the port of destination, with liberty to touch and trade at two intermediate ports, the policy will not cover the outward cargo from the port of destination to one of the intermediate ports, though the vessel was obliged to carry it there, in consequence of being refused permission to enter that of her destination; the premium,, therefore, must be returned, as the risk never attached.
    Assumpsit, for money had and received, to recover back the amount of premium, paid for insurance.
    The facts were these: The plainliffs shipped for La Vera Cruz a cargo, fully covered by other policies, in the usual form, and then effected the one on which the present action was brought, upon the return cargo, “.beginning the adventure upon the said goods and merchandises, from and immediately following the loading thereof on board of the said vessel, at La Vera Cruz, and so, &c., until the said goods shall be safely landed at New York,” with liberty to touch and trade at New Orleans, or the Havannah. On the outward voyage the vessel was captured, carried into Jamaica, detained there two months, liberated, and arrived at her place of destination, where she was not permitted to discharge her outward lading, or even remain within the port, although in distress from her mast being sprung and short of provisions and water. Thus circumstanced, she was, with her original lading on board, and without taking in anything in addition to it, compelled to depart for the nearest port the could make. She accordingly sailed for New Orleans, and there loaded with a cargo for New York, to the full amount of *whieh a policy had been underwritten previous to that subscribed by the defendants. A verdict having been taken for the plaintiffs, the case came before the court on this simple question, whether the policy ever attached ? If it did not, the verdict to stand; if it did, to be entered for the defendants.

      T. L. Ogden, for the plaintiffs.
    The goods insured by this policy never were on board. They were to be taken in at La Yera Cruz. By the outward policy, the cargo from New York may, perhaps, have been protected even to New Orleans, as the going there arose from an interi diction of commerce. 1 Emer. 542. If so, the plaintiffs were perfectly covered, out and home, without the policy subscribed by the defendants. For the case specifies there was one on the cargo from New-Orleans to New York, effected previously to that now in question. It is clear, therefore, that there was not a moment of time in which the defendants could be liable. Independent of this, the words of the policy are conclusive.
    Riggs, contra.
    That the plaintiffs were protected in the voyage from La Yera Cruz to New Orleans, by the outward policy may be the law of France, but certainly is not that of this country. Stress of weather may justify going to a port not mentioned, whilst in the prosecution of the voyage insured, but after the iter is concluded, the policy never can warrant going on a new voyage and to a new port. The case of Yrcdenburg was decided on prin-eiplcs analogous to those for which we contend. That is, that our policy attached on even the outward caago from La Yera Cruz to New Orleans. It was in the route of the very voyage we.insured, and covered the goods, though not absolutely shipped at the port specified in the instrument. In the determination I have alluded to, the cargo was shipped at New York, but this court held it within a policy on goods from the West Indies, containing the very clause upon the construction of which we now dispute. The reasoning there was, that being a trading voyage, like this, any. goods at the place from whence the insurance was to take effect, were within it. The same rule was adopted at nisi prins, in Slaight v. Rhinelander. There, some salt brought from a foreign port was held to be within a policy on goods shipped in New York. We were liable from La Yera Cruz to New Orleans. Had the loss happened even after leaving this last place, we must have .paid and could only have called *on the insurers on the other policy for contribution. We, therefore, are entitled to retain.

      Hoffman, in reply.
    This last argument is an attempt to introduce the English doctrine of contribution among underwriters, in the teeth of the clause in our policies. The insurance, when effected, was on a cargo contemplated to be laden on board'at La Yera Cruz, and no other can be covered by it. In Sleight v. Rhinelander the salt had been entered here, and was destined for the voyage insured. In Vredenburg’s Gase, the cargo was shipped for the voyage insured. There never was an instant in which the defendants were liable on their subscription, and therefore they must restore the premium.
   LiviNGSTON, J.

delivered the opinion of the court. The premium on this insurance cannot be retained. The policy in explicit terms declares, “ the adventure shall begin from, and immediately following, the loading of the goods at La Yera Cruz.” At tbis port, whitber tbe outward cargo was insured, tbe Alert was not permitted to unload, or to remain in port, whereupon sbe sailed for New-Orleans m distress.

Tbe parties clearly intended to insure only sucb goods as were taken on board at La Yera Cruz; or, in other words, tbe return cargo. Independent of the unequivocal terms made use of, tbe plaintiffs could not contemplate bringing back to New York tbe property they bad sent abroad; the warranty also of its being American, might have been true of the one cargo and not of the other. "Whether tbe outward policies, by tbe denial of an entry at La Yera Cruz, continued or not, after tbe vessel’s departure thence, will make no difference. Tbe hazard which tbe defendants would have run, on their present construction, is much greater than tbe one they actually assumed. Would they not have asked a higher premium for insuring goods which had been several months at sea, and might have been greatly damaged, on board of a vessel too, which had suffered a long detention by capture, whose masts were sprung, and which was otherwise in a shattered state, and short also of provisions and water, than for underwriting a cargo laden at the place where the policy was to attach, and on a vessel thoroughly repaired, and properly found for the voyage she was undertaking ? If these goods were really intended as the subject of insurance, the defendants could never have been called on for a loss, inasmuch as the vessel was not repaired, provisioned, or watered, as she ought *to have been. To what cause this was to be ascribed is of no importance, it always being part of the contract that such shall be the condition of every vessel at the commencement of a voyage. But here it is conceded, that her distressed plight was owing to perils insured against by former policies, and evinces that the defendants did not mean to take her up until after her safe arrival at La Yera Cruz. Again, is it not a part of the understanding, that tbe goods shall not have been damaged by tbe sea when' tbe voyage begins ? Who can say this was not tbe case here ? Suppose at New Orleans tbe cargo bad appeared «so much spoiled as to justiiy an abandonment, or a claim for a heavy partial loss, bow was it to be ascertained when tbe injury happened, before or after leaving La Yera Cruz? In this way tbe defendants would have been exposed to a loss which had been occasioned in a part of the iter, during which it is not pretended they run any danger. When it is agreed, then, that the risk shall commence from the lading of goods, at a particular port, this is so far from being a nugatory provision, which we have a right to say means nothing, that the underwriter has a palpable interest in exacting a literal compliance, or to consider himself exonerated. These arguments, although not urged at the bar, are conclusive in favor of the plaintiffs. But in Vredenburg v. Gracie, it is said a different construction was given to this clause, and that the goods shipped at New York were considered as covered by the policy, although the adventure was to begin from their loading in the West Indies. Such a decision certainly took place; but it appeared that the underwriter was informed that the goods intended to be insured were shipped from New York, and that the vessel had proceeded to the West Indies (where she was at the time of subscribing the policy) without insurance. A letter was also shown to him, stating the vessel’s arrival at Cape Nicola Mole, where she had disposed of a small part of the cargo, and was about proceeding to St. Mark’s with the residue. This explanation, which was admitted, presents a very different contract from the one on which we are now deciding, and which, therefore, cannot be governed by it. It was a trading voyage in the West Indies, where it is not usual to carry produce of one island to another. It was also, by the express understanding of the underwriter, a policy on goods shipped at New York, and the vessel being already in the West Indies, that part of the world was only mentioned as the place where the risk was to commence. *But with, all these explanations, we well remember that one of the first counsel who ever appeared at this or any other bar, and who was concerned with me for the plaintiff in that cause, entertained a very strong opinion that our client would have to apply to a court of chancery to amend his policy, to enable him to succeed in a court of common law.

From this view of the question, it is not necessary to say how the interdiction to trade at La Yera Cruz affected the prior insurances. Whether they terminated there, or continued during the route to New Orleans, our opinion is the same.

The cargo taken in at New Orleans being covered by prior insurances, the defendant was of course at no risk after the schooner left that place, and thinking, for the reasons mentioned, that the policy did not attach during her voyage from La Yera Cruz to New Orleans, the plaintiffs must have judgment.

Postea to the plaintiffs.


author: KeNT, Ch. J.,

text:
    Jackson against Richards.
    If a note fall due on a Sunday, payment must be demanded on the Saturday. An endorser of the promissory note of an insolvent is not chargeable without a previous demand on the maker, and notice, though the endorsement has been without any consideration, and merely to give currency to the paper. Notice to the endorser, if previous to a demand on the maker, is bad, though it be on the first day after the expiration of the days of grace.
    Assumpsit by the holder of a promissory note against the second endorser.
    The maker being indebted to some English creditors, the plaintiff agreed to take his note for 15s. in the pound, with two endorsers. In consequence of this arrangement, the note in question was made, and delivered over to Jackson. The three days of grace expiring on Sunday, and the 'maker having become insolvent, notice of non-payment was given to the defendant on the Monday following, but, before any demand on the drawer, which, though on that day, was not made till after therirotice of non-payment. The case was submitted without argument on the following points: 1. That the note becoming due on Sunday,
    demand of payment was not 'requisite until Monday; no usage being shown requiring demand before the expiration of the three days of grace; 2. That the rule by which in such cases demand is necessary on Saturday, is applicable to bills and not to notes; because as to them, the law is satisfied if made within a reasonable time; 3. That as the maker was insolvent, and the name of the defendant endorsed to give the note credit, regular demand was not required ; 4. That no injury to the defendant has arisen from the *want of a more regular ^demand, and the court ought not to enforce any strict rule against the plaintiff, even if the demand was not strictly regular.
   KeNT, Ch. J.,

delivered the opinion of the court. This case presents two questions: First, whether the usual and due means have been taken to fix the defendants as endorser of the note ? Secondly, if not, then, whether the circumstances of the case rendered those means unnecessary ? Generally, to fix an endorser, the holder must demand, or use due diligence to get, payment of the maker when the note becomes payable; and, on his default, he must use due diligence in giving notice thereof to the endorser. The demand of payment from the drawer must be made on the third day of grace, and within a reasonable time before the expiratioir of the day. Bayley, 59, 67; Chitty, 148; 2 H. Black. 336, 337. If the third day be Sunday, demand must be made on the second day. This was the established usage as early as the time of Lord Holt, in tbe case of foreign bills, and it bas since been extended equally to inland bills and notes of band; for inland bills and notes are .payable at the same time as foreign bills,^and there is no material difference between them. Tassel and Lee v. Lewis 1 Ld. Raym. 743; Chitty, 141; Bayley, 66, and Marius, cited by both. See also what Lord Kenyon says in 4 D. & E. 152. In the present case, then, there was wanting due diligence in presenting the note to the maker for payment, and no reason is given why the demand was postponed from Saturday till Monday. If the demand had been duly made on Saturday, the notice to the endorser would have been sufficient On the following day; or, in this instance, on the Monday. Bayley, 76; Chitty, 153. W. & L. Titus v. Bowne, July term, 1798. But here the notice was given even prior to the demand upon the drawer, and was consequently null, as the drawer was not in default when the notice was given. From the reason, then, that the demand was not made on Saturday, and that the notice was prior in point of time to a default in the drawer, the requisite steps were not taken to charge the endorser, and he has a strict right to avail himself of the laches of the holder in his discharge, unless there be some peculiar circumstances in this case to take it out of the general rule. It has been laid down by the court of C. B. in the case of De Berdt v. Atkinson, 2 H. Black. 336 that the payee of a promissory note endorsing it to give it currency, and, knowing of the insolvency of the maker at the *time of such endorsement, cannot insist on the want of demand and notice, because he was not an endorser in the common course of business, and cannot be affected by the want of notice. The same point was afterwards ruled by Buller, J. at nisiprius, 1 Esp. Rep. 303. But within two years subsequent to the first decision, tbe same court of C. B. decided directly tha contrary in tbe case of Nicholson v. Gouthit, 2 H. Black. 609. We tbink tbe reasoning in tbe last decision tbe best and ought to be followed, When a person signs a note in tbe character of endorser, tbe presumption is, that be is to receive all tbe privileges of that character. If be meant to be absolutely bound as a co-debtor, be would have signed tbe note jointly with tbe drawer, or this meaning would have been in some other way declared. An endorsement for the credit of tbe drawer, and without receiving value, is not unusual in tbe ordinary course- of business, but it would be inconvenient and injurious to dispense with tbe settled rule of tbe previous demand and notice in all such cases. It is, no doubt, tbe general understanding of tbe parties when negotiable paper is endorsed, that tbe legal consequences shall attach to that endorsement. There is no imputation of fraud or want of faith in this case. It is not analogous to the case of a drawer of a bill, drawing without funds to uphold bis draft, and who is properly chargeable without notice. We are therefore of opinion, that judgment ought to be entered for the defendant.

Judgment for tbe defendant.

         On the authority of this ease Lord Ellenborough ruled, that notice to a payee of a bill, endorsing with a knowledge that the drawer had no funds in the drawee’s bands, was unnecessary. Sisson v. Tomlinson, Selwyn’s N. P. 29, (n.)

       Perhaps the two cases may ho reconciled by considering that in thd first the endorsement was on mere accommodation paper to raise money, that in the latter the endorsement was by way of security.