author:
SpKNctR, J. Livingston, J.
      Kejtt, C. J. Livingston, J.

text:
    William S. Smith, against James Cheetham.
    NEW-YORK,
    May, 1805.
    It to ascertain the quantum of damages a jury agree that each shall set down such sum as he thinks fit, divide the aggregate by 12 and the quotient be the irregularity for which it will be set. The confessions of jurymen as to their own misbehavour may be heard in applying to set aside a verdict, and so, ut semb. may their affidavits. If judgment has been entered before argument brought on for want an order to stay proceedings and the judge refused to grant one merely because be thought the case would be determined within the first four days of term, it will he no objection to awarding the new trial ordered.
    THIS was an action for a libel, in which a verdict for 200 dol-Jars had been rendered in favor of the plaintiff.
    Miller, on behalf of the defendant, moved to set it aside for irregularity in the jury, upon an affidavit of the constable who attended them, stating, that after they had retired to their room to agree on their verdict, and while discussing the matter, he heard one of them say, one cent damages was enough ; another, that six cents damages, and six cents costs were sufficient; and that he afterwards saw, at least six of the jurors, take a pen and mark down what he believed and understood to be, the sum that they thought proper to give as damages in the cause, and from what he then saw and heard, he understood the whole Sum should be divided by 12, and the quotient was to be the verdict. That two of the jurors had since owned to him that the verdict was determined by an agreement that each should put down such sum as he thought proper, that the whole should be divided by 12, and that the ver-diet was really thus-determined.
    These facts he contended, were sufficient to warrant the application. That they did not rest solely on the confession of a juror, which might possibly, be deemed inadequate, but came through a channel perfectly regular. Ip Hale v. Cove, 1 Stra. 642, a verdict rendered by drawing was set though according to law» The principle of that case applied to this. It was a determination without regard to the merits. One inveterate juror might, by putting down a large sum, insure an excessive and . ruinous verdict.

      Emolí, contra»
    The case cited, and all others on the same point, went on this principle, that it should not be left to chance to determine on which side a verdict should be given. Here, there was no dispute about the party, in whose favour it ought to have been rendered. The sum only was to be ascertained. Had each juror mentioned’the amount of damages he thought right, ” to come to an agreement, there must have been agreement, there must have been concessions The mode complained of was as' pure and innocent as if effected by word of mouth or conversation.
   SpKNctR, J.

In this cause, the inclination of my mind was against setting aside the verdict, considering it indisputable that the affidavits of jurors, and of course their confessions could not be received. Were that the law, then the affidavit of Murphy would not establish the fact that the verdict was the result of chance. But, on examining the English authorities prior to th«; revolution, it appears to me, that the information of jurors as to what passed may be received. The only decision to the contrary is in 1 Keble, 811 ; but it is a very unintelligible and illy reported case. The determinations in Bunbury 51. and Barnes 441, shew, that the information of jurois may be received, and I cannot perceive any principle of law invaded by it. The affidavit of Murphy, in connexion with confessions of the jurors, leave no doubt, that the amount of damages was ascertained, by each person’s setting down the sum he thought fit, and dividing the aggregate by twelve,. If this practice be tolerated, it will prevent that discussion and examination, so necessary to the developement of truth, and so essential to justice. To affirm the present ver-.clict, would be to sanction a practice dangerous in the highest degree. I therefore am of opinion that a new trial be had, and that the costs abide the event.

Livingston, J.

Every verdict should be the r-esult of re? ilexion, and not the effect of chance or lot. Jurors being sworn to determine “ according to evidence,” suitors have a -right to expect, that they will examine and decide upon it to the best of iheir ability and discernment. But if lot is to be substituted for judgment, if deliberation and reflexion are to yield to the.cast of a die, parties instead of exposing themselves to a heavy and useless expense, will gamble away their right, or have recourse to more intemperate means of ascertaining them* The practice therefore cannot be too promptly, nor stronlgy discountenanced. Accordingly in England, where so mu.cli pains are taken to preserve a pure administration of justice, not only verdicts determined by lot or hazard, are always set aside, but every pecies of misbehaviour in a jury is narrowly watched, and, if not punishedj the party 'affected by it, is nev.er denied relief,' Thus new trials have been granted, because jurors have been áilowed to go at large by the officers having the custody of them ; because they had taken refreshments between the charge, and delivering their verdict; because one of them left his fel-'ows, and then returned with a paper which -influenced their de-cisión ; because a juror had received a paper from the plaintiff after leaving the bar, and especially on the ground, which most nearly resembles that on winch this application is made, I mean Thus in Mellish v. Arnold, verdict that of determining by lot. was set aside because, whether three or ‘ live hundred pounds should be given, was determined by throwing up cross and pile, in Hale v. Cove because two papers were put into a hat, on the one marked P coming out, a verdict was found for the plaintiff, which, although according to evidence, and the judge’s opinion, was set aside. The same thing ivas done in Philips v. Fowler, because recourse was had to casting of lots; and in Vaise v. Delaval, lord Mansfield assented to the propriety of the rule, font would not receive an affidavit of the fact from the jurymen themselves, although in Philips v. Fowler, such a one was read. With proper submission to his lordship, it appears the best and highest evidence of which the case admits. If a man will voluntarily charge himself with a misdemeanour, why should he not be indulged ? Are not criminals in England every day convicted, and. even executed on their own confession ? And is not our state-prison filled in the same way ? But, perhaps it may be thought, that this verdict cannot be classed with those which have been the result of chance. ■ If not, the method pursued was still more exceptionable. Where chance alone is tried, the decision will sometimes be correct, however wrong the means of arriving at it. Indeed, not mauy centuries back, our superstitious ancestors considered this equivocal mode of ending a controversy, as a direct and legitimate appeal to Heaven, and as a certain way of discovering the divine will. Here, the method of deciding as effectually prscluded a proper exercise of judgment, as that of chance ; and, what is worse, put it in the power of any one juror, from prejudice, passion, or other bad motive, to ruin a defendant. lie is only to set down a sum sufficiently large, and, if his fellows adhere to their promise, a most outrageous verdict will be 1 he consequence. Thus 110 one can tell, at the time of pledging himself what sum he.will finally agree to. It was said on the argument, that this might be nothing more than an essay to produce an understanding. As a mere attempt at unanimity, there might be nothing very reprehensible in it; hut it is impossible tb regard what passed in any other light, than a stipulation, by each man, to set down any sum he pleased, and that the quotient arising from a division by twelve, should at all events, become his verdict. Tlié* die was not only td be cast, but the throw, whatever it might be, abided by. If evidence of this fact may Hot be deceived from a juror himself (which opinion however .1 do not here adopt) what Stronger proofs, than those we already have, can be required of the misbehaviour complained of? The constable who kept the jury swears i( That from what he heard and saw, he understood that “ the stuns sfet down by the several jurors were tb be divided (< by 12,| and the quotient was to be the verdict.” He also swears “ that thé verdict Was determined by, an agreement-, that each í¡ should put down such sum' as he thought proper, and that i( the whole should be divided by 12, and the verdict was thus “ determined.” Another witness informs us, that some of the jury acknowledged the whole matter to him. Stronger than all this, is the silence of the jurors theniselves. Exculpatory affidavits would hardly be rejected, and yet not one is produced. We Cannot suppose, any juror would be sb regardless of character, ahd sb insensible tb the bails of justice, as to deny the plaintiff so small a boon. In the case fcited from Bunbury, affidavits had been made by persons who heard the jurors talk of the matter, and great stress is laid oh “ their not thinking fit to dea? theniselves by oath.” So in Parr v. Seames and others, Barnes'] 438, Where a verdict had been determined by “ buslling half* iC pence in a hat,” the Court gave the plaintiff an opportunity tb procure affidavits from some of the jurors. With me. this silence is conclusive evidence, hot only of the truth of the affidavits so far as they go. but of every inference against their conduct, which the circumstances disclosed will, in any degree warrant. If we ask for stronger proofs, and at the same time, adopt lord Mans. field’s rule of shutting the mouths of the jurors, we may aS well, at once, close the door on all inquiries of the kind, and leave them to act and decide as they please. The only case from which lord Mansfield’s opinion can derive any support whatever, is that of Prior v. Powers, Keb. 11. There ohe of the jury had confess sed the whole mattér, but being against himself, it was not much regarded, and the court seem afraid, that If they granted a new trial, they would have to punish the jury, which could not be done bn their-own-confeSsiom Why the judges are so very tender of thb jury; or why they, as well as others may not be punished on their own confession, which is the highest evidence, we are not told. But, without refuting an argument which is founded altogether in mistake, it is sufficient to say, that this decision took place in the 16th year of Charles 2d; and that, since'that time, information has, in various instances, been received frond the jurors them* selves, so that long before the revolution, it ceased tb be a precedent in England, and of course is not now binding here. The case of Vaise v. Delaval, happened since the revolution, and therefore forms no precedent. My opinion, on the whole, is that there be a new tidal with costs to abide the event, agreeably to the decision in Hale v. Cove. The losing party ought not to pay for being relieved against misconduct and irregularity in a jury, any more than against the consequence of a misdirection on a point of law.

Bro abr. tit. Verd 17. 18, ed. 8 ibid. 18, 14, Her. 7, 1.

1 Sid. 235.

Kejtt, C. J.

If the jury cast lots for whom they shall find, it would, no doubt, vitiate the verdict. 3 Black. 376. Hale v. Cove, 1 Stra. 642. Barnes, 438. Prior v. Powers, 1 Keb. 811, Foy v. Harder, 3 Keb, 805. But the better opinion is, that the fact must not be derived from the jurors themselves, since the court cannot take notice of it, without at the same time, making the jury answer for the misdemeanor, 1 Keb. ub. sup. Vaise v. Delaval, 1 D. & E. 11. The decision however, in Philips v. Fowler, Barnes 441, is contra. In this case then, I incline to the opinion, that so much of the affidavit as relates to the confession of the two jurors ought not to be receivéd, although I do not think, that part of it, if proper, adds any material strength to the motion. The charge here, is not that the jury casts lots, whether they should find for the plaintiff or defendant, but only that in ascertaining the amount of the damages, they took the average sum d t-duced from the different opiniohs of each other; This has no an-tilogy tb the case of casting lots, or determining by chance for v horn they sir.11 find. The liquidation of damages, must always, in a certain degree, be the result of mutual concession, since the amount of the injury is not susceptible of being ascertained witli mathematical precision. If this mode of collecting the medium of their different opinions, was fraudulently abused by any of the jury, by fixing on a sum intended to be extravagantly high or low, and which was not given in good faith, it would, perhaps, justify our interference ; but no such fraud appears, or is to be presumed, in the present case. I do not, therefore, think that ⅛½ mode of ascertaining the average sum, Was in itself exceptionable; and if, -when ascertained, it appeared to the jury, to be a reasonable sunt; . under all the circumstances of the case, connected with sentiments of respect and conciliation for each others opinions, I think it was not improper for them finally to adopt that SunV. As we are to intend all this took place, for nothing appears to jjaihsay it, I think the motion ought to be denied. It may not be improper to add, in confirmation of this opinion, that it is supported by that of the court of common pleas of Philadelphia, in the case of Cowperthwaite v. Jones, 2 Dall. 55, and which was afterwards affirmed in the supreme court of that state.

Thompson, J. Gave no opinion not having heard the argu-' ment.

Tompkins, J. Had been concerned.

*** After the decision of the court was pronounced, Wilkins, observed, that, as no order to stay proceedings had been served, judgment had been perfected before the argument took place, and though this fact was unknown to the counsel concerned, still it was within the rule of Shephard ads. case, Cole. 90.

Livingston, J.

I imagined when I was applied to for an order that the argument would have been had and the determination p-.onounced within the first four days of term, so that judgment could not have been entered, otherwise, I should have granted the order to stay proceedings ; the defendant must not be prejudiced by my omission, or misconception.

        Prior v. Powers.

        Bellish v. Arnold.

        Barb. 51.

       1 Stra. 642.

        Barnes 441.

       1 D. & F. 11.

        Philips v. Fowler.


source: Caselaw Access Project

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

license: Public Domain

text:
    Jackson ex dem’ Seth Sherwood against Phelix Phelps.
    NEW-YORK,
    May, 1805
    By the 5th of April. 1803, the title to the military bounty lands vested in the patentees at the time of their deaths respectively, though they died previous to the 27th of March 1783.
    EJECTMENT for lands in Scifiio, in the County of Onondaga. Samuel Mitchel, the patentee from whom the lessor of the plaintiff derived title, was a soldier in the Ncio-York line, who died in October 1781, without issue, leaving a brother named Martin, and a sister called Mary. By the fifth section of the statute. “ to “ carry into effect the concurrent resolutions and acts of the legis- “ lature, for granting certain lands promised to he given as bounty “ lands, and for other purposes therein mentioned,” it was enacted “ that the letters patent, directed to be issued, shall issue in the “ names of the persons who have actually served in the line of “ the army of the United Staes, as designated in the concurrent “ resolutions, and the eleventh clause of the act passed on the ;‘llth day of May, 1784, granting the same to such persons ^ respectively, and to their respective heirs and assigns forever, “ and the lands to be granted in and by the said letters patent shall . . “ be deemed, considered, and adjudged to have vested m the re-u spective grantees and their heirs and assigns resfiecti-vely, on the “ 27th day of Marcia in the year of our Lord 1783 ; and all li grants, bargains, sales, devises, and other dispositions made by “ any of the said grantees, or their heirs or assigns, of the said “ lands so to be granted to them respectively, or any part thereof, “ between the said 27th day of March* in the year last aforesaid, “ and the date of such letters patent respectively, shall be as good “ and effectual, as if the said letters patent had been granted on “ the said 27th day of March in the year last aforesaid.’’
    Some short time after the passing of this law, the letters patent for the premises in question were granted to Samuel Mitchel. On the 21st of October, 1797, Martin Mitchel, by deed duly acknowledged and recorded, conveyed to Thomas Pa-dy, and he in the same manner, on the 10th of November, 1797, conveyed to Sherwood.

    By an act of the legislature, intituled “ An act granting relief to “ certain persons claiming titles to lands'in the counties of Cayuga <c and Onondaga,” it is in the first section ordained, “ that the title u to all lands heretofore granted by letters patent, to officers and u soldiers serving in the line of this state, in the army of the M United states, in the late war with Great Britain, and who died “ previous to the 27th day of March, 1783, shall be, and is deciar-M ed to have been vested in the said persons at the times of their 66 deaths respectively.”
    At the trial of the cause, which rested on one single demise from the lessor, the antecedent facts, documents, and laws, were given in evidence and relied on by the plaintiff. He also -proved the defendant to be in possession of the premises, and that at the time the deed from Pardy was executed, it was agreed between the lessor of the plaintiff and Samuel Phelps the late husband of the defendant, that Sherwood should purchase the premises from Pardy, for the benefit of himself the lessor, ■Samuel Phelps and others then in possession of the premises, commence an action to try the validity of the title derived from Samuel Mitchel, and that, on establishing it, Phelps, or his representatives, should receive from Sherwood a deed for the premises in question, at 4 dollars per annum» On this testimony the defendant moved for a non suit, which being overruled, she then produced a deed, duly recorded and acknowledged, from William I. Vredenburg to her late husband, for the very premises, dated the 6th of December, 1794,. The judge having charged in favor of the plaintiff, the jury found accordingly. A case was then made, subject to the Opjnion 0f the court on this point. Whether any title passed by the letters patent to Samuel Mitchel, the soldier, he being dead at the time they were issued.
    Wood-worth, attorney general, for the plaintiff.
    The decision of this case will depend on the acts of 1790, and 1803. It is objected that by the words of the first law, nothing could pass to the soldier who was dead. But if it was meant that only those in existence on the 27th day of March should take, the statute would never have directed that the lands should be deemed to have vested, on that day in the “ heirs" of the patentees. This word is not used merely to denote the quality of the estate, but has a further operation, to vest it in the descendants of those not then in esse. Doubts however having been entertained on this subject, the act of the 5th April 1803, was passed, which, it is presumed, puts the question at rest.

      JKmott, contra.
    The expressions relied on, are merely words of limitation. The legal effects of words in a statute, are the same as in a deed, and the terms used in the law referred to, were only to give a fee, not describe the persons who were to take. If a devise be to a man and his heirs, and the devisee die before the testator, the devise is gone, because there is na one to take at the death of the testator, for the heirs cannot come In. The same principle applies in this case. It is an absurdity to say, the legislature intended lands to vest in a man who was an-tecedently dead. Besides, what rule of descent is to prevail ? In 1782, the common law would govern. In ’86 we changed that system, and abolished the rights of primogeniture. In addition to these arguments, the case shews, that at the time when Par. d-y’s deed was executed, there was an adverse holding under color of title, and therefore nothing passed by it.

      Woodworth in reply.
    The facts and agreement in the case, do away all the argument as to adverse possession, and shew the whole proceedure was to settle the question now brought up, which has never been determined. The 8th section of the act of 1803, prescribes the rules of-descent, and establishes those of 1786. We allow, that a deyise to a man his heirs, in a deed, will not operate as a designado persone, but it may be otherwise, in a statute. Because the one conforms to the law ; the other makes it. By the law of 1803, the title is '• declared" to have vested in the persons entitled at the times of thein deaths. If so, it must descend to their heirs.

       2 Vol. Greenleaf's Ed. 333.

       of the 6th April, 1790.

   Per curiam., delivered by

Livingston, J.

In deciding this cause, it is unnecessary to enquire, whether the legislature, by its resolution of the 27th March 1783, intended to comprise within its bounty, as far as regarded the line of this state, persons not embraced by the act of congress of the 16th September 1776 ; of whether the commissioners of the land-office, in carrying its views into effect, have expounded them too liberally, by issuing letters patent to soldiers who were dead at .the time of its adoption, or whether, jf those who were the authorized agents of government, have erred in judgement, as to the proper object of gratuity, bona Jidc purchasers can now be disturbed ? Nor is it of any use to settle the operation of military grants under the act passed the 6th April 1790. It cannot be dissembled however, that were it proper, in this collateral way, to draw into question the validity of a public grant, and our examination were limited to the terms of the resolution, and the effect of the grants, as fixed by this law, very serious difficulties would occur. Whatever our feelings might be, or however strong the claims on public: benevolence, of those, whose fathers may have perished in fighting the battles of their country, we could hardly, without some violence, or indulging an improper sympathy, give to these proceedings, an interpretation as latitudiuary, as the commissioners have done. From a view of the different public acts relative to this matter, and a recurrence to the history of the times, we should perhaps, be compelled to say, that a provision was designed for such officers and soldiers only, as were living in March 1783.

But whatever doubts may have existed on these points, and on which no opinion is now intended to be given, none can reasonably be entertained, at this day, with respect to the validity of titles derived through grants to military men, who may have died at any period whatever during the British war. The legislature has, greatly to its honour declared, by an act passed the 5th April, 1803, that the title “ to all lands theretofore granted by letters patent, “ to “ officers and soldiers, serving in the line of this state, in the army of ‘‘the United States, in the late war with Great-Britain, and,wAo died ‘‘ previous to the %7th March 1783, should .be, and thereby was de- “ Glared to have been vested in the said persons, at the time of their u respective deaths." This law was passed with a full knowledge of every circumstance, the same having-been brought to public V;CW) ^y commissioners apppointed to settle the titles to this property. For, so long- since, as the year 1800, these gentlemen;, in ⅞ very able report to the governor, had exposed the mistakes, if such they were, which hail been made in a great many instan ces, of granting lands to persons who had died during the war, and the inoperative nature of all such patents. They went further ; they not only cautioned government against rendering these grants valid, but recommended the institution of an en« quiry, as preparatory to a resumption of the lands. Nor were motives of interest wanting, to allure to a measure of this kind; for, by a schedule accompanying this report, it appeared that, as far as had then come to the knowledge of the commissioners, the state would have gained in this way, neir two hundred thousand acres of land in a very valuable part of the country. The legislature however, not forgetful of the services which the patentees had rendered in establishing the independence of their country, disdained, in a moment of tranquility, ar.d when no danger impended, to listen to suggestions of interest, but \yich a generosity, not very common, and therefore the more laudable in a public body, confirmed all thes epatents without discrimination, and that by expressions so apt and strong, that neither on the argument, nor since, has the plaintiff's title appeared to me, liable to the smal-est doubt. The acts being declaratory or not, can be of no moment, as it respects these parties, although from its subject matter, as -well as expressions, it would seem more naturally to belong to the former class. As these lands belonged to the state, if the patents were void, or inoperative, (for it is not pretended they have -been granted before or since) it was competent to the legislature, to confirm and quiet tlje titles derived under them, however defective they were before. And as we do not perceive, from the facts before us, that the rights of any person, otherwise acquired, will be affected by the confirmation, we arc not bound to suppose, that such cases exist. It does not appear that Vredenburgh, who conveyed to Phelps, had any title at all. If he had, it is not pretended that he, or those under whom he claimed, derived any right from the state.

Something was said of an adverse possession in Phelps, at the timeof the execution of Panh/’s deed; but how could this be, when Phelps had agreed, that the purchase should be made, for the express purpose of trying- the validity of this title r Surely stronger evidence cannot be required that Phelps did not hold adversely to Pardy, notwithstanding his deed from Vredenburgh, than his willingness to take under the former, at a stipulated price, so soon as his title should be established. Would it not be monstrous, to let him now set up his own possession in defiance of the plain understanding of both parties, to defeat the tecoverv of Sherwood?

Nor is it important, whether the act of April 1803, passed prior, or subsequent to bringing this éuit. Rather than put the .plaintiff, who lias now a perfect title to a new action, because it be doúbtful whether such were the case when this suit was commenced, and for no other purpose than to prevent the defendant’s liability to cost's, 1 prefer considering the law as relating back to the lime of issuing the patent, which comports also with the intention of the legislature. The Postea must be delivered to the plaintiff.

Kent, C. J.

Upon this case the two following questions have been made. 1st, Whether there was an adverse possession of the premises, at the tithe of giving the deed from Mitchel to Pardy, so as to render the same void. 2d, Whether the original grant from the st&te to Mitchel, was a sufficient basis to support the plaintiff’s title. •

1-It appears that a deed of the premises was executed by William I. Vredenburgh to Samuel Phelps on the 6th December 1794, “and although it is not stated when Phelps took post session under that deed, yet we find him in possession on the 10th of Abvnnber, 1797, only a few days subsequent to the deed to Pardy. From this, it might be presumed that h'e was in posses-sión as early, at least, as the time of the sale tb Pardy, and if so, his possession was under color of title, adverse to that of Mitchch But, notwithstanding .this might have beeii the case, I think that Phelps concluded himself from making that objection- When the lessor of the plaintiff purchased from Pardy it was with the knowledge and assent of Phelps, and he was eventually to be benefited by it, on the terms stated in his agreement. It was agreed between them that the lessor of the plaintiff should purchase, and bring a suit thereupon, to try the validity of. the title derived through Pardy. This was a waiver of the objection now ket up, for the object of the agreement Was to try the validity of the title, as it had existed in Mitchel. The parties never had lE view this mere technical objection, which does not go to the me-' rits of the title. It would be- against good faith, for the tenant, one untjer ¾⅛ now to set up, and it it therefore ought not to be permitted;.

2~_It is stated that thfe action was commenced in the year 3798, and 1 am of opinion; that at that time thfe letters patent td 'Mitchel were nugatory and void, and the property reinained vested in the people of this state. The act of the 6th of April 1790; jrave letters patent for the military bdunty lands ah operation from the "27th of March 1783, so as to be deemed to have vested a title in the grantees from that time ; and the legislature were ho doubt competent to give their letters patent a relation back; to a time anterior td the issuing them. Considering tile promise that the state hád niade, to their two regiments of infantry, by the resolution of the 27th of March 1783, this relation back tb that time, was ho more than a just execution of that original promise, and, not being to the prejudice of third persons, it was conformable to general principles of law. 18 Vin. Abr. Tit. Relation, D. E. But this act of 1790, could not, by any just construction, be considered as authorizing grants, when the person to be designated as the grahtee was not alive in March 1783. The resolution of the legislature evidently referred only to officers and soldiers then in esse, and composing thfe regiments commanded by Van Schaick, and Van Cortlandt; and the resolution of congress of the 16th of September 1796, on which the resolution of the legislature was trained, Only applied to the soldiers who should ’continue to the end of the war, and to the representatives of those who should be slain by the enemy. There could be no pre-tence that á soldier who died before 1783, was within those provisions, and the act of 1790, by making the letters patent to be issued in pursuance of the resolution, to refer back to the date of the resolution and no further, most undoubtedly meant, that they should correspond, and be 'commensurate only faith the former provison. There is nothing in the words of the afc't, Wheh attentively considered, 'that favors a different construction ; ahd it would, indeed, have required the most explicit and positive provision to have extended the grants, by relation, anterior to the period of 1783, and beyond the limits of the original contract The act of the 5th of April 1803, appears to reach and help these patents, made t’o persons who were dead in 1783, by reViving the grant and giving it a relation back to the life of the grantee. It declares “ that the title to all lands before granted “ by letters patent to officers and .soldiers serving in the line “ of this state, in the army of the United States, in the war with “ Great-Britain, and who died previous to the 27th of March 1783, “ shall be, and is declared to have been vested in the said per-s< sons at the time of their deaths respectively!” This'act does not appear to have been intended as a declaratory act, and we ought not to presume it to have been so intended, vVhen we do not perceive any solidity in the opinion that such was the antecedent law. And if this last act was a declaratory one, it would not be binding on the courts as such, although as a legislative opinion, it would deserve and receive very respectful consideration. I consider therefore, this act of 1783, as introductory of A new rule in respect to the letters patent in question ; and had it passed before the commencement of the present suit, it would have conclusively established the plaintiff’s title. This last provision affects no other rights, than those of the state. There Cannot arise any conflicting title in consequence of it, and it rested with the legislature, in its discretion to part with its title to the premises, in the mode, and to the extent it should deem advisable. But a title acquired after the - commencement 6f the suit, cannot be introduced upon the trial, unless it be one derived from the defendant, since this would be to charge the defendant with the costs of the Suit. For this reason, I think the plaintiff obght to have been nonsuited at the trial, notwithstanding he appears to be now Vested with a valid title.


author: Livingstoh, J.

text:
    William E. Sheffield against James Watson.
    NEW-YORK,
    May, 1805.
    A government agent, though known to be such, contracting for things for the use of government, will be personally liable on his contract, unless he make it in his official character, on account of government, and the party contracted with, appear to have looked to government alone for compensation.

      ASSUMPSIT for work, labour, and materials in making two •drafts and models for the frigate Adams, at the defendant’s request. There being no dispute about the facts, á verdict was taken by consent, subject to the opinion of the court, on the following case.
    The defendant, who is publickly known as the navy agent for the general government) in consequence óf orders to have the Adams built, wrote to the plaintiff a letter, bn the subject of present suit, couched in these words.

      July 8, 1798.
    “ SIR,

    “ I pray you to make a draft of the ship as soon as possibles ” ^01' which you Shall have the usual allowance from
    iS Your humble servant,
    “ James Watson,.
    “ To Mr. Sheffield.”
    The plaintiff, in pursuance of this, made a draft and model on a sca¡e 0f jqs feet; but directions having been riven to the defendant to construct the frigate on larger dimensions, he ordered ¿mother draft and model, which were accordingly furnished by the ° 1 1 t defendant, who shortly after, in conjunction with one John Jackson, entered into a written contract with the defendant for building the ship. Ih this agreement, Watson styled himself “ agent for, “ and in behalf of the United States.”

    Ih ship-building, modeling and drafting are distinct charges^ and on the present occasion, constituted nd part of the demand against government, they employing a regular draftsman of their own, whose business it is to furnish drafts and models for government ships, though, from some particular circumstances, he had not done it for the Adams.

    Upon these facts it was submitted to the court to determine whether the plaintiff was entitled to recover for one or two drafts and models, or whether he was entitled to .recover at all? If for the two, the verdict to be entered for 300 dollars ; if for one only, for 150 dollars ; but if not at all, then to be entered for the defendant.

      Blake for the plaintiff.
    This case will turn on the intent of the parties_Whether Sheffield considered the defendant as acting in his individual capacity, or as agent for the United States. The intendment of law would naturally view him in the first of these lights, for whoever contracts for the labour of another, assumes a prima fade responsibility of payment. This alone would be sufficient to induce in the plaintiff a belief, that he was to look to the defendant for his money. He would perform the services required, under that impression, and with that intent. This’, therefore, is to be the rule of construction to ascertain who, by the plaintiff was contemplated as his pay-master. To shew this intent of the parties ought to govern, 1 Bow. on Cant. 243. The fact relied on to destroy this general responsibility, and establish the contract to have been entered into with another intent) is that the defendant was knowr? to be the agent qi the United States. Against this, the letter of the defendant speaks a plain language ; and for the very services the plaintiff rendered, government have an officer of their own and could not, therefore, be resorted to by us.

      Hofikins and Harison, contra.
    The question is, whether a known agent of the United States acting in a line palpably for the service of the public, shall be responsible in his individual character, on the contracts he may thus make for government. The contrary is firmly settled. 1 East. 135, 579. 1 D. & E. 172, 674.§ the plaintiff is to recover, the defendant mustióse the money. The agent of even an individual, if known to be acting for his principal, does not incur any liability. A fortiori the agent of government. No surprise is pretended ; the plaintiff contracted \vith his eyes open, and to make a goverment agent responsible, there must be clear unambiguous circumstances to shew he contracted in his private capacity.

      Caines in reply.
    That an agent may bind himself by contracts, made for his principal is admitted. In addition to the facts already relied on to evince that was the case in the present instance, the conduct of the parties themselves, when intending it to be otherwise, may be referred to. In contracting for building the frigate, Mr. Watson describes himself as agent, for and in behalf of the United States. When therefore he does not so engage, he must mean to personally undertake. There is a case in Strange where a cashier of a public company, was held answerable ip his private capacity, for a bill accepted by him in his own name though directed to him as cashier, and drawn upon the funds of the company. Words tantamount to those used in this letter have been ruled to .create an individual responsibility. In general Burgsyne’s case cited in Macbeath v. Haldiman, the expressions were, that the plaintiff “ should be paid at the same rate as “ the provost marshal under general Howe,” and they were held to work a personal liability. Whenever the rule contended for on the other side has been allowed to operate, the terms of the contract have shown that it was entered into with a reference to government. In Macbeath v. Haldiman, the plaintiff’s accounts were made out “ government debtor and the whole of the correspondence stated in the report, manifests the same idea. So in Umvir v. Woolsey, the charter-party was expressly “for and on ac- “ count of government.” AH the cases referred to, have the same, or some other similar ingredient, distinguishing them from, thepresent. Under as ystem so widely extended as ours, to turn over to the administration, every man who might furnish that which countlT requires, would be ruinous, and impede, if not totally obstruct the public service. Suppose the rations of an army delivered to a commissary, must the recourse be to government alone ? The defendant in giving directions for the models, eithe;* acted under the orders of government, or he did not. In the first case, he either has received, or will receive the amount of the present contest; if so, he suffers nothing by the recovery. Ik the second, he must have intended to, act for hjmself and is therefore liable on his contract.

       Myrtle v. Beaver.

        Rice v. Chute

        Macbeath. v. Haldiman. v.

         Thomas v. Bishop, 2 Stra. 955.

   Per curiam, delivered by

Livingstoh, J.

It is not enough the plaintiff knew the defendant to be navy agent, and that the frigate, whose model he was to make, was to be a public ship of war. Before we send him to government for redress, it should appear, as well that Watson contracted in his official character, and on account of the United States, as that Sheffield gave credit, and intended to look to the government alone for compensation. No one would do any thing for a public agent, were he compelled for every demand, however small, to send his account to the seat of government, qr to petition congress for relief. The expense and delay, would, in many cases, be greater than the sum due might be worth. Never before was it insisted, that every carpenter, ship-chandler, Ecc. who had supplied materials, or bestowed labor on a public vessel, had no recourse against the person employing him. The consequence would be, either an unwillingness to work for the public, or an. exorbitant price would be asked, as an indemnity for the inconvenience of applying to the legislature, or some distant office, for ⅞ settlement. It is more reasonable, that an agent who receives a salary, or a commission should be personally answerable to all who are employed in his department. He trusts government. His acceptance of the office is voluntary. He is compensated for his services ; and, so long as he acts within his instructions, he runs no risk of having any proper account disallowed. In ordinary cases he will not be alarmed at a responsibility, which, upon great occasions, such as provisioning an army or the like, may be avoided, by taking care so to model the contract, as to leave no doubt that the patty was willing, and intended to look, not to him, but to the public. Where this precaution is omitted, be ought to be liable for every thing done at his request, although his character be known, and that the services rendered, are on public account. Here, on the contrary, is something very like an express undertaking, on the part of Watson, to pay. For, what other construction can be put on the his letter, in which he declares that the plaintiff u shall have the usual allowance from his humble servant ?” His public character is not brought to view, nor is the plaintiff referred to, government for satisfaction. It must have been upon reasoning like this, that the lord Chancellor, assisted by two of the judges of the king’s°bench, proceeded, in the case of Horsley v. Bell. 1 Bro. Ch. Rep. 101. in notis. They considered the commissioners named in an act of parliament for carrying on a certain navigation, personally liable to the undertaker, although he .knew they were exercising a public trust, and they had signed the several orders in that capacity.

It is not intended to shake any of the English authorities on this point. None are to be found in which the party was denied a remedy against his immediate employer, but on the principles here recognised. In Melchart & others v. Halsey & others, 3 Wils. 149, lord Mansfield, thought, from the circumstances disclosed (but what they were does not appear) that the forage and provisions furnished the British troops were <£ upon the public “ faith and credit of government,” and therefore nonsuited the plaintiff. So in Mackbeath v. Haldiman the plaintiff had made u Governmenldebtorfor sundries supplied by orderofthe lieutenant *< governor,” and on this circumstance the court laid great stress. The supreme court of the United States in Hodgson v. Dexter, 1 Cranch 345, regarded the contract as made with a view en~ tircly to government.” When this appears, it will be unjust to charge the officer, but as the contrary may fairly be inferred as the understanding and agreement between the parties, the plaintiff must have judgment for 300 dollars, anc| this is the unanimous opinion of the court.

         Uniwin v. Woolsey.


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

text:
    Daniel Pelton against Elijah Ward.
    NEW-YORK,
    May, 1805
    If a man say another, "You swore to "a lie, for "which you "now stand in-"dicted," it is actionable If the count, in an action for words, be insufficient, and the declaration do not contain any introductory matter or colloquium by reference to which they can be rendered so the inadequacy of the count cannot be made good by a justification and confession of the words, in the bar.

      THIS was an action for words spoken of the plaintiff, and came beiore the court on a motion m arrest or judgment.
    The declaration consisted of nine counts. The first, second and third, charged the defendant with saying you mere false« The fourth, fifth and sixth, with saying, you swore lo a damned lie and -you knew it. The seventh, eighth and ninth, with saying, you swore to a damned lie and you knew it, for which you now stand indicted, innuendo that the plaintiff had committed wilful perjury. The defendant pleaded to all the counts, first not guilty, and secondly in bar a justification, that at a court of oyer and ter-miner, held at White-Plains in the county of West-Chester, the pjain tiff was s worn and examined as a witness in a cause concerning the building a store, on a highroad; and did then and there fajse]y anc[ corruptly swear, that a part of the store remained on J . the ground where it had formerly stood and had not been remove(j when in fact no part of the store at the time of the plain- • tiff’s so swearing remained there, for which an indictment was f°un<^ and presented against him. Replication, de injuria sua pro-pria absque tali causa, and issues thereon, with verdicts for the p]a¡ntjff on au the pleas, which, however, were entered only on the three last counts (the first six being confessedly bad) and entjj.e damages assessed, °

      Caines for the defendant.
    The action is not maintainable. The counts ajwe an indictment for that which is not indictable. For ” simple false swearing, an indictment will not lie. There is not therefore, any offence charged, for which the plaintiff could be punished. The ground of the present suit is, that there is such an of-fence imputed. The addition of “ for which you now stand indicted,” does not make the act more criminal, for a man may be indicted and yet be innocent. “ Thou ait a false knave, and thou wast arraigned for two bullocks,” Bayly v. Churrington, Cro. Eliz, 279, held not actionable ; for, continues the authority, “ he saith ⅜( not,"he was arraigned for stealing two bullocks, and if the words “ had been so, yet the words had not been actionable, for a man “ may be arraigned for felony, and yet no felon.” So by Yelver-ton, J. 1 Bulat. 40. “ Thou wert arraigned for stealing a horse, “ when the plaintiff had been acquitted,” and ruled that no action would lie. To sustain a suit for words, such as the one now before the court, it is requisite not only that there should be a crime stated, but an affirmation that it was committed* In Steward v. Bishop., Hob. 177, the expressions were, “ James Steward is in “ gaol for stealing a mare, and other beasts.” It was determined they were not actionable, because being in gaol “for” doing a thing, does not say it was done. So here '■'■for which he stands “ indicted,” does not imply he was guilty. There is then no word used which states a crime, nor any allegation that it was actually committed. If so, it is not helped by the innuendo, “ meaning " that the said Daniel had committed wilful and corrupt perjury.’’ The office of an innuendo is not to supply but designate. It is synonimous with a " prædictum" James v. Rutlech, 4 Rep. 17, therefore in Gurneth v. Derry, 1 Lev. 166, thou wast a forsworn man, to and didst take a false oath against me, before justice Scawen, “ innuendo John Scawen, a justice of the peace,” it was determined the innuendo did not aid, and that the declaration was insufficient. The same principle is recognised in Holt v. Scolefield, 6 D. & E. 691, where it is said it ought to be shewn either by introductory matter, or averment, that the forswearing was in some judicial proceeding. Where it appears in the introductory part, it is good, Brumring v. Hanger, Hard. 151. So, if it be the result of necessary implication. 6 D. & E. 691. If it be said, that it arises here, fromthe word indicted, then it ought to have been averred. The rule is this. When the latter words are relied on to explain the first and give them their criminality, if they be connected with the former by the word for, they must be followed by an averment; when by the word and, they need not. Painter v. Warne, 2 Bulst. 142. Therefore in the present case, the plaintiff should have averred, that he had not been indicted. The case of Gilbertin v. Rowe, 1 Roll. Abr. 40, pl. 8, may be cited against us. But taken with the above distinction it is in our favor. The words there used were “ Thou art a forsworn knave, and wast " indicted by twelve men and hast compounded for it.” The declaration therefore is bad, for these reasons, 1st, The words do not state any crime. 2d, If they do, it is not charged to have been committed. 3d, The want of so doing is not aided by the innuendo. 4thly, Nor does it arise by necessary implication, and 5th, if it does it should have been followed by an averment. But it may be sáid that the defect, if any, is cured by pleading over. This however is a defect in substance, and “ if the count be defective in substance, " the bar cannot make it good.” 8 Rep. 120. b. Doctor Bonham’s case. The point however is decided. “ In an action for words, " though the defendant justify and acknowledge the words, this " does not aid the declaration.” Badcock v. Atkins, Cro. Eliz. 416. Nor is it helped by the verdict, Rushton v. Aspinall, Doug. 679. In the next place, intire damages are assessed upon separate issues, and several verdicts. “ Every count is to be considered as a dis" tinct declaration.” Hill v.Lewis, 1 Salk. 133. You may as WelL assess intire damages on separate actions, as on separate issues. " If several issues are joined on several points and found for the “ plaintiff, and damages assessed intire, the judgment is reversa“ ble, for being several issues the jury might have assessed the “ damages severally, viz. for each issue, several damages.” Bedel & Moore's case, 1 Leon. 171. The entries in all the books of precedents are in conformity to this. Lill. Ent. 428.
    Kent, C. J. The last point is settled by a case in S Bur-tows. It was formerly the practice to enter separate damages on each issue, but this Was found inconvenient, ahd in this court they have been Uniformly entered as in the present case. As to the words Used, they must be taken in the same sense as in common parlance they would be received. The doctrine of mitiori sensii has long been exploded. No man but would interpret the expressions in the declaration as conveying a charge of perjury.
    Emott, contra.
    The defendant has added enough to shew the Words were so intended. In Gilbert v. Rod, 3 Bulst. 304, the allegation of being forsworn was followed by the same expressions as in the present case, and held to be actionable. But if it Were otherwise, the pleading and verdict would make it good' The defendant by his bar has confessed the words, and shewn that they were uttered with an intention to impute perjury. He sets forth the court in which the forswearing took place, and thus gives certainty to the declaration. In a similar action this was held to cure the uncertainty of the count.
    In Drake v. Corderoy, Sir W. Jones 307. Cro. Car. 288, the defendant justified by setting forth a forswearing in a court of quarter sessions, and it was ruled to make good the uncertainty of the declaration. Tuke & Candies case, cited in Osborne v. Brooke,

       Alleyn 7, is to the same point.
    Caines, in reply.
    Thu authority from 3 Bnlstrod<t is the same as that from Rolle, and must be received with the explanation already taken. On the other points the decision must turn according to the weight of the cases cited.

       The business of an innuendo is, by a reference to proceeding matter, to fix more precisely the meaning of it. Pr lord Mansfield, in the King v. Ayltet, 1 D.&E. 70. See Rex v. Alderton, Sayer, 280. Lex v. Mathews, 9 Sta. Tri. 682. Rex v. Horne, Cowp. 672.

       The reason is the word "and" is held to be cumulative. See Whitcare v. Hillidel Alleyn 11. Yearworth v Pierce ibid. 31 and Wainewright v. Whitley, Sty. 115. where the same distinction is taken, and the case of Clerk v. Gilbert, Hob. 331 contra denied to be law.

       In the case the plaintiff, by introductory matter in his own declaration, shewed that the words were spoken of a forswearing at the sessions where he took an oath, and after stating the charge of having forsworn himself, omitted she innuendo (meaning the said path taken by him) the defendant in this bar confessed the words and that they were said of the oath there taken, & this was held to make good the uncertainty occasioned by the want of the innuendo. Observe how ever that in this case, it appeared introductory matter in the declaration, that the for swearing was in a judicial proceeding. The authority therefore is perfectly within the rule as laid down in Holt v. Scbolefield, 6 D.&E. 691. and Brumrig Hanger, Hard. 151.

       A contra desision is also stated.

       The words were " Captain “ Osborne is " forsworn, " and his oath “ appears upon " record " This the court held to beequal to saying he is forsworn upon record. See ante 75, the note upon the word “ and" being cumulative.

   Per curiam, delivered by

Spencer, J.

The first inquiry will naturally relate to the charge in the three last counts. The office of an innuendo is to contain and design the person who was named in certain before. “ It cannot alter the matter or sense of “ the words themselves.’’ It cannot extehd the Words, by an imagination of an intent not apparent by any precedent words, to which the innuendo should.refer, " in effect it stands in lieu df ⅜ " pretdictum." This doctrine is laid down in the case of James v. Rutlech, 4 Rep. 17, and has been the received law ever since. In the case of Oldham v. Peake, 2 Black. Rep. 961, it is decided „ that an innuendo cannot introduce new matter, but may ascertain the meaning of the old. In that case the declaration stated a ^colloquium concerning the death of Daniel Dolly } the words were, you are a bad man and I am thoroughly convinced you are guilty (meaning of the murder of the said-Dolly) and rather than " you should want a hangman, I would be your executioner.” The court held that the word “ death," must be understood to mean “ murder," because it was such a death as the plaintiff might be liable to be hanged for. This authority bears strong analogy to the present case. The words charge the plaintiff with swearing knowingly to a “ damned lie, for which he stood in--dieted.” The words in this instance can mean nothing less than perjury, for it was an allegation that the plaintiff had knowingly sworn to such a lie as rendered him obnoxious to an indictment, which could only be for perjury. If the innuendo was not true, it was competent to the jury to say so ; but they have affirmed it, on grounds which strike me as substantial.

The plaintiff's counsel has called in to his aid, the plea of jusfication, as rendering the intent to charge perjury clear and certain; and there are authorities which seem to sanction a reference to a plea with that view. But I cannot accede to the doctrine. The case of Badcock v. Atkins, Cro. Eliz. 416, appears to me to be most consistent with principle. The court there held that the declaration which was insufficient in substance could not be helped by the plea. The question in-that case was, as to the certainty of the person slandered, the plea justified the words, and still the declaration was holden bad. The plaintiff to sustain an action must have a complete right to bring it at its commence-merit. But, on the former ground, my opinion is, that the defendant take nothing by his motion. I think the pleadings in this case highly censurable. Instead of one plea of justification to all the counts, there are the same pleas to each count. There 1 are also nine counts for substantially the same words, and a special replication to each of the pleas. The attornies on both sides , , . are m fault, and in the taxation of costs the plaintiff ought to be allowed for only two of his counts, and one replication; and the defendant’s attorney, as against his client, to be allowed &ui for one of his special pleas.

Kent, C. J.

I concur in the opinion delivered.

Livingston, J.

I am unfortunate enough to differ from the court.

If the words used, be not in themselves actionable, the judgment must, in my opinion, be arrested, notwithstanding the plea of justification, on which the plaintiff so much relies, as evidence of the defendant’s intention or meaning to charge him with perjury. It is the import of the words themselves, and not the defendant’s intention, which is the criterion of their being actionable or not. This meaning cannot be assigned to them merely by an innuendo., or depend on a secret intention, but must be collected either from the criminal sense in which the expressions are usually understood ; or, from the colloquium which led to them, it must appear they could have no other meaning. Let a man’s intention be ever so mischievous or malicious, if his reproaches, however strong, impute no crime, nor bring the party of whom they are uttered into danger of legal punishment, he can be no more responsible than one who intends, but does not perpetrate a crime. Nor will any subsequent explanation by him, confer a right of action for words not actionable at the time they were spoken, or in the manner in which they were used. This explanation itself may be the ground of a suit, as being a new slander, but it can never make that actionable which was not so before. Were one to declare against another for calling him a fool, would the plaintiff be permitted to shew that the defendant intended to call him a thief? Nay, would the defendant’s own confession in open court to that effect support a declaration of this kind ? The action is brought for the injury which the words are calculated and supposed to have produced ; not for the intention from which they proceed. This is precisely the case here. The defendant had «charged the plaintiff with swearing to a lie. These words, it is admitted, are not actionable, when not applied to swearing in a judicial proceeding, but are laid generally, without any colloquium from which it can appear that they were used with reference to some proceeding, wherein the plaintiff had been examined as a witness. It must be seen, by apt words in the declaration, that the defendant referred to such proceeding, or, whatever his intention may have been, those who heard them could only consider the plaintiff as a liar, which, however discreditable or disgraceful, would not have given a right of action, notwithstanding the case in 1 Buls. 40. Reasonable as the rule there laid down may be that words, “ tending to the infamy, discredit, or disgrace of the H party,” are actionable ; the law is certainly otherwise. They must contain an allegation of “ some crime liable to punishment, some capital offence or other infamous crime, misdemeanor,” &c. As those then, who were present when this supposed slander was propagated, must have formed their opinion from what fell from the defendant; they could not suppose he meant to charge the plaintiff with perjury, unless he had made use of other expressions, than those which are set forth. If then there were no injury, or cause of action at the time of filing the declaration, how is it possible that the plea, which perhaps will never be seen or heard of by those to whom the words were addressed, can confer one, and that too, by relating so far back. I am apprized however that the plaintiff is not altogether without authority on this point. It Is that of Drake v. Corderoy. The defendant had there said of the plaintiff that he was forsworn, without mentioning in what court or on what occasion. In his plea of justification, he stated in what court he took the oath, and that it was false. The court there say that the uncertainty of the declaration is cleared up by the de? “ fendant’s expressing in hjs plea, that he intended to speak of the is oath he had taken in that particular court.”

This case proceeds on a supposition that the intention with which words are spoken is material. It may be so as it respects the measure of damages, but not as' it regards the right to recover. No malice or evil intention can render actionable, words in themselves innocent. I have examined every case cited in the margin of this one, in support of the decision, (and they are numerous,) but not one of them is in any respect like it. They are cases on contracts where one party or the other, in the course of pleading, has admitted some fact, which was material, and which the court would not afterward permit him to contest or deny ; but here, the fact admitted by the justification is immaterial, because slander can never consist in what a man intends to publish, but in what he does actually declare ; and so it was determined in Badcock v. Atkins, which is a very strong decision in favor of the defendant, and at open war with the one just examined. It was doubtful from the declaration, whether the words spoken applied to the plaintiff. This fact however was admitted by the plea, but the court say “ the declaration was not " good, and although the defendant by his plea confesses that he intended them of the plaintiff, yet that shall not help the " declaration which is insufficient.” This case it is true is many years older than Drake v. Corderoy. It is not however on this account that I give it a preference) especially as it may be con-. s*dered as overruled by the latter judgment, but because it appears to me more reasonable, and more agreeable to common sense than the other, for the more we reflect on the subject, the less will we be able to conceive how any one can be af. fected or injured in his reputation, by slander which consists in mere intention, without any overt expressions to carry such intent into effect. In the case of Oldham, v. Peake, there was a colloquium concerning the death of one Dolly, and the manner of the defendant’s charging the plaintiff with it, was equivalent to a charge of murder.

But if the plea of justification, be not a sufficient cause for not arresting the judgment, it is said the words are actionable, inasmuch as the defendant alleged that the plaintiff stood indicted for what he then charged him with. Here we must again recur to the words, and if they do not contain an imputation of a crime or offence, the allegation of an existing indictment will not alter the case. It is very possible, that a person, from ignorance in a grand jury or other cause, may be indicted for a matter not crimina], but unless what is charged, be so, it is no slander. Were one to say to another, are you a mahometan or a jacobin, for which you stand indicted, would these words, on account of such addition, be actionable ? Certainly not. Now as no man can legally be indicted or punished for being a liar, his being called so, and being charged with being indicted, as such, can give him no right of action any more than his being charged with being indicted for any other immorality not punishable by law. I am not for extending the action for words,but for confining it as much as possible within its present limits. Abusive expressions which expose a man to no punishment are beneath the dignity of the law, and unworthy of legal cognizance. A man of character cannot be affected by them, and he who has none, should not have his angry passions gratified by an appeal to courts of justice, whose time may be much more Usefully employed in attending to other matters. The judgment in my opinion must be arrested. I concur however in the opinion of Mr. Justice Spencer, as to the pleading.

Thompson, J. Gave no opinion, not having heard the argument.

Tompkins, J. Had been concerned.


text:
    Stephen Brown against Caleb Smith.
    NEW-YORK,
    May, 1805.
    ON certiorari from a justices’ court, in trespass gure clausum fregit, the errors relied on were, 1st, That the verdict being for one mill, no judgment could be, or in fact was rendered upon it. 2d, That as no costs were found by the jury, the justice was not warranted in giving judgment for any.
    On a verdict for one mill, no judgement can be rendered and if it be en tered for the costs only, it is error. Whenever the jury give damages, costs follow by the statute, and threfore need not be found,

      Sanford, for the plaintiff.
    By our act “ relative to the money “ of account of this state” all fractions of money, less than cents are, in judicial proceedings tobe rejected. The verdict then, could not be legally received, and, if so, there was nothing on which to found a judgment. On the second point, though it may be said that the finding of costs is mere form, and the court will order it to be done, in order to carry those of increase, yet this very circumstance shews they are essential. They are peculiarly so in this case, which is an action sounding in damages. If not found, they cannot be assessed by the justice, and a judgment rendered for them alone.

      Bogert, contra.
    The statute relative to the money of account was passed antecedent to the £10. act, and as inferior jurisdictions take nothing by implication, the justices’ court is not affected by it. Besides it speaks only of judgments and decrees, not of verdicts, and the judgment is in dollars and cents. Another answer may be given, that the errors are in form only, and therefore not to be now regarded, as, after verdict, they are cured by the statute of jeofails.

      Per curiam stopping Bogert,

    On the second point it is unnecessary to say any thing. The jury need not find costs ; they are given by the statute, wherever damages are found. But the judgment must be reversed; without any law none could be given on a verdict, it is a nullity and could not be the basic the of any judgment. In that which is now rendered, the justice is obliged to reject the verdict, for there is no judgment as to the mill. It is for costs only, and if carried into effect there could be no levy tor tne verdict. There is no such currency as the sum given. given.

       1 Rev. Laws, 250, ch. 52 sec. 2.

       See Finch’s Law 29 Shore v. Thomas, Noy Rep. 4. Contra Marsham v. Buller 2 Roll. Rep. 21. Vide also 2 Bos & Pull. 36, Governor &c. of Harrow School v. Aldeston.


text:
    Matthew Codd et. ux. against Richard Harison and others.
   IT was ruled, that in partition the practice is the same, when unopposed, as in other cases, and therefore the notice and affidavit of service only, need be read.


author: Kent, C. J.

text:
    James Jackson ex. dem’ Peter Waggoner and others against James Murphy.
    Where the plaintiff and defendant claim under adjoining patents, the court cannot grant a rule ordering the lessors of the plaintiff to permit a survey to be taken of the boundary line, but if it appear necessary for the defence in the suit that it should be ascertained, they rule to stay proceedings till the lessors consent to a survey, or judge at the circuit may postpone the cause on the same principle.
    EMOTT, moved for a rule, ordering- the lessors of the plain- . , , tiff to permit a survey to be taken by the defendant of the boun cjal.jes anc¡ marked trees of a patent under which he claimed» „ , . . - , , on an affidavit stating, that it was necessary for his defence to ascertain the fines of it. but that a person sent by him for that ' . purpose, had been prevented hy the agent of the lessors who de. rived chle under an adjoining grant,
   Kent, C. J.

, Were we to this application, could we enforce ¡qle leave we had given ? Suppose an action of trespass brought, would this be a justification ? But, it does not appear to me tliat our interference is necessary. The judge at the circuit would, upon the grounds, now shewn to the court, postpone the cause. You may however take your rule to stay proceedings, r till the lessors of the plaintiff enter into a consent rule for having a survey made.


author: Thompson, J.

text:
    Nicholas Low against Jacob W. Hallett.
    NEW-YORK,
    May, 1805.
    In opposinga motion for a reference, it is sufficient if the affidavit, state that the controversy will involve questions of law, as the party “is ad“vised by his "counsel and "verily be"lieves” without setting forth what those questions are.
    EMOTT, on the common affidavit, that the trial of this cause would require the examination of long accounts, moved for a reference.
    Hoffman, contra,
    . read an affidavit by the plaintiff, simply stat-j that as he was advised by his counsel, and verily believed, ° J the controversy would necessarily involve questions of law.
    Emott, inreply,
    submitted to the court whether the affidavit ought not to have specified what those questions of law were-

         See Lusher v. Water 1 vol. 150.

   Thompson, J.

I believe the usual mode has been to state them.

Per curiam.

The addition of " as advised by counsel ” is sufficient. It is to be presumed that counsel would not advise, unless there was some foundation. Take nothing by your motion, and pay the costs of resisting.


author: Per curiam.

text:
    Seth Moore against Asa Bacon.
    A clerical misprision in a return to a certiorari may be amended after joinder in error, when it appears to have been served to prevent the entry of a default, for want of being served with an order to stay proceedings, then applied for, and expected, but it will be allowed only on paying costs of the assignment, and resisting the application to amend.
    MOTION to amend a justices’ return by altering the date of an act, mentioned to have been passed on the 7th day of April 1804, to the 7th day of April 1801.

      P. W. Radcliff.
    read an affidavit by the attorney of the defendant in error, that the mistake was a clerical misprision, which he did not discover till the 27th of Ma ch last, when a copy of the assignment of errors, in which this was set forth as a cause, was served on him, with a notice to join in error in twenty days, or that a default would be entered.

      Caines., contra,
    urged that the application could not how be heard, as from an affidavit of the attorney for the plaintiff, it appeared to be after joinder in error on this very point, so late as the 22d of April, and that, in such cases, the rule was, not to to allow of amendments.
    jP. W. Radclff, in reply.
    The papers before the court, shew that the parties live in a remote county, and the joinder was ni'erely to prevent the entry ef a default for want of being served with an order to stay proceedings.
   Per curiam.

The observation of the defendant’s counsel takes this case out of the general rule. The order to stay proceedings was applied for, and evinces, that the joinder was amere matter ■of precaution, not a reliance on, or affirmance of, the correctness of the proceedings. The amendment therefore must be allowed, on payment of the costs'’of the assignment of errors, and those of resisting this application.^


text:
    Bach and Bach against Coles.
    NEW-YORK
    May, 1805.
    The court will not hear an applicalion for an order to stay proceedings on a case made, unless recourse has previously, and without success been had to a judge.
   THIS was an application to the court, in the first instance for an order to stay proceedings ol a case made.

Per curiam.

Though the rule authorizing parties to apply to a judge for this purpose, does not abrogate the power of the court, yet we ought never to be resorte^to, till the other mode has been attempted, This is chamber business.


author: PENDLETON,

text:
    Richard Hartshorn and others against David Gelston.
    NEW-YORK,
    May, 1805
    That the government of the United States is interested in a cause, does not make it of importance enough to grant a struck jury.
   PENDLETON,

moved for a struck jury in this suit, which Was fot erecting a beacon on the plaintiffs’ lands at Sandy-Hooki> after being warned not to do so, on an affidavit, stating, a for5met action and recovery for the same offence, the pendency of two suits for a continuance of the original trespass, and that the defendant was, as he verily believed, reimbursed by the govern ment of the United States, for the damages paid in the first action, and would be indemnified by them, against any recovered in the present, or other suits. These circumstances and the probability that the genernl government was interested in the cause, Were sufficient, he contended, to make it of such im portance as to require a struck jury.

Per curiam, stopping Sanford. There is nothing in this case, which is not fitted to the capacity of an ordinary jury. The parties litigant, do not make a case important.


text:
    John Ball against John P. Ryers.
    If the sheriff have a surplus in his hands arising from a sale on an execution, the court will order it to be paid over, on a fi-fa. issued at the suit of another plaintiff.
   THE plaintiff in this suit had issued a fi.fa. upon a judgement he had recovered.

Riker, citing Doug. 231, now moved for a rule directing the sheriff to pay over, on the execution thus sued out, the cf . 197 dols. 26 cents, being the suplus arising from a learehoj perty, levied on and sold, in an action against the same deh ° at the suit of another plaintiff.

Ordbred accordingly.

        Armistead v. Philpot But if a plaintiff have, in the hands of the sheriff, money arising from an execution, a levy cannot be made on such money by virtue of & fi.fa. against the plaintiff, for the mere raising the money by execution, does not, it is said, pass the property in it to the creditor, Turner v. Fendall. 1 Cranch. 117. In the principal case, Livingston, J. said, he had no doubt money might be levied on. See Dalton's Sheriff Accord. But vide Fieldhouse v. Croft, 4 Fast, 510, Overruling Armistead v. Philpot.


author: Tompkitts, J.

text:
    Colman I. Keeler against John Adams.
    The court will not order a justice to make a return contrary to what he has sworn to, though there appear a cirtificate from him Impeaching the return, but will leave the party to his action. If a special notice amount to the general issue, it seems unnecessary toreturn it. In a special action on the case for damages, a notice of set-off cannot be given. The court will not ut semb. order a justice to return a special notice, which, if on the record would not vary their judgment.

      HOPKINS moved for a rule on a justice, ordering him to amend his.returh by inserting the substance of a notice given at the trial of the causes and the testimony adduced under it.
    The affidavits of the defendant and his attorney, set forth, that the action ivas tresspass on the case, for not retimling and misusing four beds, bedsteads and some furniture, let to the defendant ° for 6 months, to which not guilty was pleaded with a notice, that at the trial, evidence would be given, that the hiring was for twelve mbnths, at the rate of 4 dollars per bed per annum, and that the defendant had paid more to the plaintiff than the rent for six months amounted to, and also, that the plaintiff had, before the expiration of the year, by force, taken away the goods demised, and that the defendant would on the hearing, insist on ° . recovering the balance due him, on the overplus of the rent paid, That proof ivas made of these circumstances, and the jury found a verdict in his favor for three dollars damages and six cents costs, upon which the plaintiff sued out a certiorari., ahd had assigned for error, that the jury gave damages for the defendant, when he claimed none by his plea.
    NEW-YORK,
    May, 1805.
    To these depositions, was annexed a certificate from the justice himself, corroborating their contents.
    Emott, contra,
    read affidavits made by the plaintiff, his attor-hey and the justice, denying the notice of set-off, but admitting one. of giving in evidence that the hiring was for 6, not 12 months, In that by the justice, the contradiction between his certificate and affidavit, was explained to arise from surprise in the hurry of business, and conceiving the former, which was brought to him ready prepared, to relate to the argument Used by the defendant on the trial
    From these Facts, and, the tenor ox the defendants, affidavits, he insisted, that as > be suit below was an action on the case for damages, there could be no set-off, and that the court would not Order a return, contrary to the deposition of the justice, as that would be obliging him to lay himself open to an action.
   Per curiam, delivered by

Tompkitts, J.

I am of opinion that the present motion ought not to be granted. The evidence of the notice of set-off. which the defendant alleges to have been given, consists of his own affidavit, that of his counsel and a certificate of the justice. To this is opposed the affidavits of the plaintiff and his counsel, and an affidavit of the justice, stating the notice of special matter given at the trial of the cause, to be different from the one specified in the affidavits on the part of the defendant!

The latter notifce was of such matters as it was competent for the defendant to give in evidence under the general issue, and therefore, a return of it by the justice, in addition to the general issue, would be unnecessary, and immaterial in the final determine ation of the cause.

The weight of evidence before us, is against the allegations of the defendant, since the affidavit of the justice, ought to receive greater credit than his certificate; especially as in the former, he explains the circumstances uhdei' which the latter was obtained, and his inadvertence and misapprehension at the time of giving the latter. We cannot suppose that the justice, if compelled to amend, would return any other notice; than the one to which he has now sworn, and, as I remarked before, the notice amounted to no more than the general issue.

I should not be inclined to grant the defendant’s motion, if the affidavits on his part, were uncontradicted by opposite proof. The declaration below was for a tort, to which the defendant properly pleaded not guilty, and, in such an action, evidence of set-off is inadmissible. It cannot, therefore, be important for the defendant to have a return of the notice which he alleges to have been given, as it would not vary the determination of the cause in this court. Let the defendant take nothing by his motion.

Kent, C. J¡ gave no opinion on the point of set-off.


text:
    Christopher Wolfe against William Horton.
    In a civil suit a certiorari to an inferior court removes, in judgment of law, the record itself with the proceedings in the same stage as they were below, therefore, need not be commenced de novo, but must, go on from the last pleading, as if in the court below. If a notice of trial for the sittings, be for the right day of the month, it is g*ood. though the day of the week mentioned be wrong.
    ON certiorari to the mayor’s court after issue joined, the plaintiff, without declaring de novo here, served a notice of trial for , Tuesday, the 18th of April, and took an inquest at the last New* York sittings.
    Woods,
    on affidavits shewing these circumstances, moved to set aside the inquest, contending that the proceedings should have commenced anew, and a declaration in this court have been regularly served. He, also tobk an exception to the return of the writ, in certifying that a copy only was sent Up, and insisted the original bill, 8cc. ought to have been removed. In addition to this, he urged that the notice of trial being for Tuesday, instead of Monday the 18th, was insufficient, and therefore, on this ground, as well as the others, the application ought tobe granted.

      Evertson and Boyd contra.
    The practice under a certiorari, is to be distinguished from that on a habeas corpus cum causa. By the former, the proceedings themselves are brought up, by the latter, only a transcript is returned. In the first.case,'therefore, as the original pleadings in the cause are actually before the court above; the case is taken up as they then appear, and the suit goes on, from the last step below, without any renovation. This,reasoning does not apply to a habeas corpus. The return to that, is not of the record itself, but of its tenor ; of necessity, then, a new declaration must be filed here, for the purpose of creating a record, on which the superior jurisdiction may act. It is no argument against this reasoning to say, that the record is not in fact removed by a certiorari, and that, in the present instance, the very return specifies only a copy, is sent up ; for, in po case are the proceedings really moved from the court below. On writs of error from the king’s bench to the common pleas the record is not actually transmitted, yet by the fiction of law, it is so considered ; and it is on this intendment, made from the nature of the writ, that the practice is founded. That the notice was for Tuesday, instead of Monday the 18th, is immaterial. It was impossible the defendant could have been misled.

    NEW-YORK,
    May, 1805.

       See exactly the same point in Batten v. Harison, 3 Bos. & Pull. 1.

   Per curiam.

The last objection is a captious attempt to take advantage. The period at which the sittings were held, was a matter of general notoriety. The day of the month was right. and though that of the week was wrong, it could not, as the plaintiff’s counsel have remarked, mislead, and must therefore be rejected as surplusage, for it was not necessary to state it. With regard to the regularity of the practice adopted, it is settled, that upon a certiorari in a civil suit, we must proceed as the court below would have done, and consider the cause in the same state here, as it was there. On the return of the writ therefore, the cause was at issue, and nothing more required than to notice for trial. On a habeas corpus, the history of the cause is sent up j on a certiorari, the record itself. We cannot attend to the statement of the return, that it is only a copy which has been transmitted. In the eye of the law, this is the record ; and its being called a copy in the return, cannot make us consider it otherwise. In the analogous case of a writ of error, urged on the argument, the transcript only is before the court of kings bench. But it h always regarded as the record itself. Rex. v. North 2 Salk. 565, The same principle governs the present case. Nothing is shewn to take it out of the general rule. If there are merits, they ought to have appeared on affidavit. This not being done, we must hold to strict practices and deny the motion.


text:
    Thomas and Andrew Napier against Christopher Whipple.
    NEW-YORK,
    May, 1805.
    If, from a change of attornies a bail bond takeno y a plaintiff deputised to arrest be lost, the court will after verdict grant leave to file common bail nunc pro tunc.

   THE plaintiffs’ original attorney had left this state before the return of the writ; the one now employed found, on search, a' rule entered, to declare or be nonprossed. In consequence of which he served a declaration, received a plea of the general issue, went to trial, and obtained a verdict.

Emott, on an affidavit containing the above statement, and ... . „ that, from having received no instructions or papers from the first attorney, he could not obtain the bail bond given in this suit, • which was taken by one of the plaintiffs, who was specially deputis-ed, to make the arrest, moved to file common bail nunc pro tunc, which was, after slight Opposition,

Ordered accordingly,


text:
    John Thompson and Charlora Adams against Amaziah Payne.
    If a notice of retainer of attorney, be sworn to have been given on one side & deni ed on the other, for want of which a default has been entered, it will, with the subsequent proceedings be let aside, on payment of costs, if accompanied with an affidavit of merits, and there is reason to think there has been some mistake.
    MOTION to set aside a-default’and all subsequent proceed-on an affidavit of'merits by the defendant, and two affidavits by the attorney-and his clerk, that a notice of retainer had been duly served on the agent Of the plaintiffs’ attorney,' but which, from misapprehension of the Christian name of Adorns, had been entituled John Thompson ahd Charles Adams against the defendant.
    On the opposite sidq, the attornies of the plaintiffs swore positively, that they had never received any notice of retainer in the present suit, or any other' in the title of which the Christian name of Charles, was used instead of Charlora.
   Kent, C. J.

There must have been some mistake in this business, and as merits are sworn to, let the default and proceedings be set aside on payment of costs, '


text:
    Jackson ex dem’ Counter against Isaiah Giles.
    If the service of notice be insufficient, the court will deny the application though unopposed.
    ON reading-the affidavit of service, it stated-the notice to have ^een delivered to the clerk of the attorney,' without saying where,
   Per curiam.

The service is on the face of it insufficient. We not- investigate the merits of any application, which the other side does not oppose; because we construe silence into consent, and an acknowledgement that the law is with the person moving. But we require the notice and affidavit of service tobe read) because they are to conform to our own rules, all of which are known to the court. This reasoning, however, does not apply to transactions between the parties to a suit. The motion must therefore fie. denied though -there is no opposition.

NEW-YORK,

May, 1805.


text:
    Joshua Whitney against John Crosby.
    When a note deraandable immediately, is on interest from any given month, without particularizing; the year, it means the month of that name next antecedent to the date of the note, ff there be one good count, and a demurrer put into the whole declaration, judgment will be for the plaintiff, tho’ ⅝ special cause be assigned, which is applicable to only one of the counts.
    TO a declaration on a note dated the 15lh of July 18Q3, ao bnowledging there was due to the plaintiff 188 dols. 90 cts. on interest from the first day of June, with a second count for money had and received, the defendant assigned, as a special cause of demurrer to the whole declaration, the uncertainty in not specifying from what June the interest was to accrue.
   Per curiam.

The first count is good, because certain to a common intent. When a day or month is,mentioned as antecedent, or subsequent to a contract, and the precise day or month is not specified, it means the time nearest to the date of the contract. As the money here, was payable immediately, with interest from the 1st of June, it must mean the preceding 1 st of June. It can have no other interpretation. A further reason why the plaintiff must have judgment is, the demurrer is to the whole declaration, and the second count is clearly good.


text:
    Robert I. Thurston against The Columbian Insurance Company.
    If an assured be apprised by his master, of his pursuing another voyage than that insured,on which he has been sent, and do not disapprove of it.itispniy ade-viation and not barratry,though, the master ultimately run away with the ship, sell her and embezzle the proceeds.
    UPON a policy on the sloop Dolores, Elihu Utley, master, from New -York to the Havanna, and back again, valued at one thousand four hundred dollars.
    The declaration was for a total loss, by the barratry of the master. Plea, non assumfisit, and a verdict taken for the plaintiff, subject to the opinion of the court on the following case, made on behalf of the defendants.
    By bill of sale, dated the 15th of July 1801, Utley, in consideration of 12G0 dollars, conveyed the sloop Dolores to the plaintiff, who, on the 17th effected the present insurance, and in the course of the same month the vessel duly sailed on the voyage described.. On the 22d of August succeeding, Utley, after a safe arrival at the Havana, wrote a letter to the plaintiff, informing him of the arrival of the vessel, and that he (Utley) had eon-signed her to the house of Simon Poey, but that, for want of a cer- ” tmcate from the Spanish consul, the sloop' was not permitted to enter. On the third of September a second letter was written by Utley to his owner, mentioning the same impediment, and requesting the certificate to be forwarded. On the 15th, the plaintiff received the first letter of his master, who, on the twenty-sixth, wrote a third time, saying that the Dolores had, the day before been permitted to discharge and depart from the Havanna, on giving security that the consular certificate should be produced Within a specific time, but that having lost a second freight for JVew- York, -in consequence of the delay in transmitting it, he should accept of one, which offered for Charleston, to the amount of about 800 dollars, of molasses, to be shipped from the port of Haruco, about seven leagues to windward of the Havanna. That after having taken in this cárgo, he should proceed to Charleston and from thence to JVew-York, desiring insurance to be made on the -vessel and freight. This letter was followed by another to the same effect, dated the 2d of October. The two letters written in September were received by the plaintiff in the beginning of JVovember, about which time Utley, with the loading he had mentioned, sailed for Charleston, where he arrived the December after. From .thence he wrote to the plaintiff, that finding no chance of a freight fot JVew-York, he had taken one for the Havanna, but was, by contract, to return to Charleston., and would, after that, proceed to JVew- York, when he hoped to be able to discharge his obligations, of which he was not unmindful, adding “ do not be uneasy ; “ I have the vessel fully insured for the voyage in case of any “ accident, that I may not fail óf my present hopes, which are to « -make payment as soon as possible, as my account has been long- “ er standing than I had any idea of at che time of contract.’’ The plaintiff, on the receipt of this letter, caused enquiry to be made respecting the sloop, and found, that about two days after it was written, she had cleared out for the Havanna, from whence Utley wrote, that finding a good opportunity to sell the vessel, he should do so, though he was obliged to -go to the Man anzas for the money, and, when about to return to JVew-York, would give timely advice, that insurance might be made, saying it -was imposing “ on good nature, to stay away s.o long, although he could do no “ better, was the same to do again.” After this letter had come to hand, another oil the first day of July 1802, reached the plaintiff from St. Augustine, bearing date, the 28th of April prececb ■ ing, in which Utley mentions, that after selling the Dolores for . . a good price, he had been robbed of all the money, excepting 350 -dollars, which was inadequate to discharge his debt to the plaintiff, but that he hoped in a short time to return and do it, when he would give satisfaction for his absence.

      NEW-YORK,
    May 1805.

      On the 15th of July 1802, the plaintiff abandoned, adducing as proofs of interest and loss, the bill of sale, and the letters above-mentioned.
    It was admitted that Utley had not returned, neither had he paid to the plaintiff the proceeds of the sloop, nor accounted with hint for them.
    Jones, for the defendants,
    made three points, 1st, That the voyage from the Havanna to Charleston, and -the actual sailing of the Dolores from the Havanna to Harneo for a freight to Charles= ton, was either an abandonment, or a change of the voyage insured, or a deviation, and discharged the owners of their obligation. 2d, That the acts and conduct of the master, must have been according to his duty and by the authority of the owner, or, if unauthorized, that the same were adopted, or acquiesced in by the owner. 3d, That the offer to abandon was made too late, being after the assured (having elected not to abandon) had lost his right so to do, if, at any time, he had such right.
    As to there having been a deviation in fact, no question can be made. For instead of returning to New-York, the vessel sailed from Charleston. This however is explained to be a barratrous voyage. But to make it so, it must be in fraud of the owner, without his authority, and by a master who is not owner. It may ■well be inferred that the master of the Dolores was her owner, but if he was so, this I admit ought to be shewn by the underwriter. Still, however, the circumstances evince the measures adopted, were fot the benefit of the owner; they could hot therefore amount to barratry.

      Hendrick v. Delafield, 2 N. Y. T. R. 67. But it is known in these West-India voyages, very great discretionary powers are invested in the captains.
   Kent, C. J.

We do not see any thing like barratry in the cace, and should wish to hear the other side on th¡9 point.

Hoffman, contra. If Utley's going to Charleston was contrary to his duty, it was barratry. • The benefit of his owners could not have been intended, for he has never since returned, and has actually gone off with the proceeds of the vessel. The frequent communication kept up with the owner, was only to lull into sectil . . i’lty, the more certainly to ultimately effect his barratrous design* ahd in this case, the first part of Utley's conduct is to be interpreted by the last; the running away with, and embezzling the vessel.

Per curiam, 'stopping Pendleton m reply. There is not sufficient evidfehce of barratry, and that is the only cause of loSs Stated. Judgment must therefore be entered for the defendants.


text:
    Peter Bogert and Samuel Mansfield against Cornelius Lingo, impleaded with James M‘Guire.
    If the drawee of a bill be in partnership with the drawer who with another person constitute a distinct house a promise by such drawee, after arrest, to pay the bill before refused to accept is no evidence that he is one of the house under the stile of which the bill is drawn, though the signature be in the name of the drawer’s partner "& Co.", therefore on such promise, an action cannot be maintained against such drawee, as drawer.
    ASSUMPSIT, against the defendants as the drawers of a bill exhhaiige, signed “ M-Glare Itf Co," addressed to “ Cornelius and indorsed “ William Robinson

      AfGuire and Armstrong,

    constituting the firm of M'Guire Cf Coj drew, the bill in question on Cornelius Lingo, who was oiie of the house of M'Guire and Lingo, but the two partnerships were, in fact, really distinct concerns, as appeared from the testimony of PerSotis knowing both houses, and deriving their information from the partners themselves, as well as their mode of doing business.r^*le billj being protested for hon-acceptance, a Writ was sued out against Lingo, who was taken, and while in custody, uPon being shewn the draft, promised, without having it read to him, that he would pay it, if the plaintiffs would let him go another voyage. There was Ho testimony of the hand writing of either drawers or indorsor, or that Lingo, made cue of the house 0f M'-Guire ⅛* Cor excepting; such its might be inferred from the r o ° . promise of Lingo. For the utter deficiency of all evidence on -c|lese points, the counsel for tlie defendants insisted at nisi Jiriusi on a nonsuit. Being overruled by the court, on the two first, jag(. wag ;eft |0 the jury who found for the plaintiffs,
    The casé now tame before the coürt oír a motion for a new trial, on the samg grounds as thbsfe urged at the circuit.

      Hawes for the defendant.
    . To entitle the plaintiffs to recover, iiiey were bound to make out every position ; the handwritings of the drawers, and indorsor, and that Lingo Was a partner in the house of M'Guire W Co. The holder derives title through the indor-sor, and hiust therefore prove his signature. Chitty, 201. Bayley, 115. The law is the same, thtmgli the'bill be indorsed at the time bf acceptance. Smith v. Chester 1 D. & E. 654. The liability.Of
      Lingo as a drawer, was only ift consequence of his being a part-nerinthe house of M'Guire is? Co. that is, so far from being established, that it is negatived. The promise to pay is immaterial; it was made as drawee of the bill, and therefore cannot be of avail in an action against the drawer. Besides, a .promise when under arrest, is, as to that suit, a species of duress, and therefore void. Rouse v. Redwood, 1 Esp. Rep. 155.
    NEW-YORK,
    May, 1805.

      Bogert and Hoffman, contra;
    To prove the handwriting of the indorsor is unnecessary in an action against the acceptor, because acceptance operates as an acknowledgment of the signature, Hankey v. Wilson, Say. 223. The promise to pay, in the present case, had the same effect. The nisi prius decision in lispU masse, is opposed to this doctrine; The point there Was, that a promise to pay, made by a person ignorant of a fact by which he was discharged in law, would not, in favour of a person to whom such fact was known, create any responsibility. This reasoning does not apply to the case before the court. Whether Lingo constituted one of the house of M'Guire & Co. was matter for jury consideration. Drake & Pinckney v. Witaker

       and ors. 1 N. Y. T. R. 184. The verdict has settled that he was.

         See the case.

   Per curiam.

The judge ought to have nonsuited the plaintiffs at the trial, the verdict must therefore be set aside with costs to abide the event of the suit. Thel’e was not evidence sufficient, that Lingo was one of the house of M'Guire & Co. who drew the bill, to let the cause go to the jury. It was a verdict clearly against the weight of evidence, and ruled wrong by the judge. The court, however, do not decide between the case in Sayer, and that in D. & E. nor whether it was, in the present instance necessary to prove the handwriting of the indorsor,- because it is not necessary to the judgment we now deliver.