author: Lewis, Ch. J.

text:
    Bowne, surviving partner of Bowne & Embree, against Shaw. The Same against Neilson and Bunker.
    If both insurer and insured on lawful goods, in a policy containing the usual clause of warranty against contraband, know there is contraband on hoard, the warranty against loss under the clause against illicit trade and contraband of war will apply only to the goods insured. The suit for a return of premium must he against the underwriter, not the broker, though the assured be themselves underwriters and the broker employed by both parties.
    These were two actions on a policy of assurance on the cargo of the schooner Polly, in which verdicts were taken for the plaintiff, subject to the opinion of the court on a case made, with liberty to turn the same into a special verdict.
    The only question in the first cause was on the effect of the warranty against loss, “ by capture, or detention for or on account of any illicit trade, or trade in articles contraband of war.”
    The facts were shortly these; the property insured, no part of which was contraband, really belonged to the plaintiff and his deceased partner, who were also owners of the schooner. They, however, as agents for Joseph M. Stansbury, shipped on his account, in the _ same vessel, other articles which were contraband, and Embree even made out the invoice in his own hand-writing. The difference of premium between contraband and other goods for that voyage, was 21 per cent. At the time, however, of subscribing the policy, Shaw knew there were contraband articles on board: Heilson and Bunker did not; and, as soon as they did know it, insisted on being discharged from the policy. This the plaintiff agreed to do, but did not erase their names from the instrument. The vessel was taken, and, together with her cargo, condemned as lawful prize. In promulging the sentence, on the 18th of December, 1800, the judge rested himself on the general interest of the plaintiff in the contraband. This he inferred from its appearing that Stansbury was part owner of the vessel in the September preceding, and there being no evidence of his having ever alienated his share. He also relied on the invoice of the contraband being in the handwriting of Embree. It was, however, admitted, that the plaintiff had not, either directly or indirectly, any interest in the contraband articles.
    In the case against Neilson and Bunlcer, the return of premium was the sole object of the suit. The defendants contending the broker was as much the debtor for the premium to the assured-as the assurer, and, therefore, the action improperly ^brought against them. The [*490] facts on this point are fully detailed in the opinion of the court.
    Iloffman, for the plaintiffs.
    The court is called on to say whether the warranty is confined to the goods insured by the policy, or shall be considered so extensive as to guard against all losses, whatsoever they may be, arising from any article on board which may be contraband. There is no position of law more known, or more acted on, than this; the mere letter of a contract is not to be the rule of exposition. It is to be construed according to the spirit, and expounded according to the intent. If so, though the words be large enough to cover all goods, we may examine into the intent, which cannot be better done than by inquiring into tire the reason of introducing this .clause; the mischief it was meant to redress, and the rem edy it was designed to afford. It owes its origin to Seton, Maitland & Co. They insured contraband merchandize, without communicating its nature, and this court decided a neuter need not avow the quality of shipment, all goods being to him lawful trade. To communicate to the underwriter the particular species of commodity shipped, and yet to warrant only as to that commodity, was the clause introduced into our policies. The conduct of Neilson and Bunlcer, show this construction ought to be adopted. On being informed there were contraband articles on board, they desired- to be released from their responsibility ; this was unnecessary if the warranty covered those articles. The generality of the construction is against it. An importer must warrant against transactions and parties thousands of miles distant, and always in the dark. This would destroy insurance itself. Besides Shaw, underwrote with a knowledge of all the circumstances, and must be presumed to have taken the risk of consequences from contraband articles on himself. Our construction, therefore, as to him, must prevail

      Pendleton and Harrison, contra.
    The intention .of introducing the clause, on the construction of which the whole of this controversy depends, was to relieve the underwriter from his general liability. It was an exception from what was considered as the effect of the policy. Being [*491] so, the exception *must be co-extensive with the effect The words, also, used for this purpose, are equally large. They are, “ for or on account of any illicit or prohibited trade.” But, in deciding the present case, it is not necessary to determine the universal operation of the clause in question. The plaintiff here was owner of the vessel. He is presumed conusant of all that comes on board. By the old maritime law, his vessel was liable to confiscation for having contraband on board, merely from the circumstance of his supposed knowledge. This, on general principals, would affect the cargo which belonged to him, because the taint of contraband is communicated wherever there is privity. It is only in modern days that we have had the rule relaxed, but that is only when actual knowledge is not proved. Here the reverse is the case, and the circumstance of the plaintiff’s partner having written out the invoice, was a principal ingredient in causing the condemnation. In the case of Heilson and Bunker, allowing the plaintiff entitled to recover, it must be from the broker, and not from the defendants.

      Hamilton, in reply.
    It is contrary to the principles of a Warranty, that it should extend to all things. It can relate only to the subject matter insured. When we warrant of a certain thing, we warrant of that thing alone. Whei we warrant against acts, we may warrant against the acts of all the world. The intent of the clause cannot be doubted. It was framed by myself to avoid the construction contended for on the other side, and to confine the operation of it simply to the article insured. I have heard that every new clause in an instrument is but a fertile source of litigation, and it is with regret I find in myself a personal verification of the truth of the remark. But whatever may be the construction of the effect of the warranty, it cannot touch the present case, because all was known to the defendant. I cannot, however, agree that the operation of the clause is to be different against different persons. The rule of law must be the same as to all.

       The case alluded to, is Seton, Maitand & Co. v. Law, since reported in - 1 Johns Cas. 1.

       See the case of The Franklin, 3 Rob. Ad. Rep. 217, and the note there, v. 221, (a), where this point is ably treated.

   Lewis, Ch. J.

delivered the opinion of the court. The question between the parties of the suit against Shaw, arises upon ike warranty against loss by capture or detention for trading in articles contraband of war. The effect which Contraband shall have upon lawful goods when going to [*492] *the port of a belligerent, would be here a proper subject of inquiry, had the fact of the Polly’s carrying such contraband been secreted from the insurer at the time of subscribing the policy. But it is stated in the case that the circumstance was within his knowledge. It is, therefore, only necessary to inquire into the understanding the parties had of the contract they entered into. The goods covered by the policy on which this suit is brought were lawful, and insured at a premium of 9 per cent. Certain contraband articles were shipped in the same vessel by the plaintiffs as agents, and insured at the premium of 80 per cent. With a knowledge of this fact, the defendant subscribed the policy, and as both parties must be presumed equally acquainted with the law upon the subject, he, doubtless, took the risk of all the consequences that might result to the lawful from the illicit goods: the warranty extending, in the understanding, of the parties, to the goods only which were the subject of the policy. See Suckley v. Delafield, 2 Caines’ Rep. 222, and note here.

We are, therefore, of opinion, the plaintiff is entitled to recover as for a total loss.

In the case of the same plaintiff against Neihon and BunIter, we think the former entitled to a return of premium. The broker who held funds of both parties, debited the plaintiff in account, with the whole amount of the premium due on the policy, and credited the defendants for their proportion. In May, 1801, he settled with the plaintiff, and paid him a balance which did not include the premium in question. On two several accounts rendered the defendants, the amount of premium still stood to their credit. And although a balance in their favor has always lain in the hands of the broker to a greater amount than the premium, it does not appear to have been left there for the purpose of repayment to the plaintiff. No authority for this purpose has ever been given, and the defendants must be considered as still withholding it from the plaintiffs.

Judgment for the plaintiffs, in both suits.


source: Caselaw Access Project

author: Livingston, J.

license: Public Domain

text:
    De Peyster and Charlton against Gardner.
    In a policy on commissions on lawful goods, the warranty against contraband is not broken, though the assured be captain, and consignee of illicit arti cles shipped on board without the knowledge of the underwriter.
    On error from the mayor’s court, upon a judgment ren dered against the now plaintiffs.
    *By the special verdict, it appeared the insurance [*493] was effected on the commissions of the defendant on “ lawful goods” consigned to him, shipped in the same vessel, and for the same voyage, as were mentioned in the preceding cases against Shaw, and against ISTeilson and Bunker. The defendant was also consignee of the contraband goods of Stansbury, and master of the Polly ; but the commissions on the contraband were not insured. It did not appear that the now plaintiffs knew any contraband was on board. In other respects, the facts correspond with those in Brown v. Shaw.

   Livingston, J.

delivered tne opinion of the court. The assured in this policy, has, certainly, made out a case of more favor than the one we have just disposed of; for he was not owner, but only master of the Polly, and therefore, could not refuse to take the goods of Stansbury; nor had .his interest, or agency, any influence on the confiscation. The judgment of the court below must therefore, be affirmed with double costs.

Judgment affirmed


author: Per Curiam.

text:
    Jackson, ex dem. Staring, against Defendorf.
    If a lot be granted by deed, and its number specified with a reference to a map, the whole lot will pass by the deed, though it there be mentioned as containing fewer acres than it absolutely does.
    This was an ejectment to recover lands in the county of Herkimer.
    The plaintiff, in support of his title, adduced a deed to his lessor, by which Nicholas Staring granted to him one certain lot of land, distinguished by the name of lot No. 10, in the new patent, in the second tract, on the south side of the Mohawk river, “ butted, bounded, and described, as can be more fully made to appear by a map of the said patent, the said lot No. 10, said to contain two hundred acres, more or less.” The deed then went on specifying the “said two hundred acres” in the habendum, covenant of seisin, and clause of warranty. It appearing, however, that lot No. 10, contained more than two hundred acres, the judge at the circuit ordered a nonsuit to be entered. Application was now made to set aside this nonsuit; and the only question was, whether the deed would carry the whole lot, as it contained more than two hundred acres.
   Per Curiam.

The intent was to convey the whole lot. It referred to the map. When the quantity of acres is mentioned, *it is only as descriptive of the lot [*494] according to common acceptation. The non suit must be set aside.

Nonsuit set aside.

       Where lands had been settled under a survey by a deputy from, the surveyor-general, but upon a wrong line, and the patents for those lands, without specifying metes and bounds, courses or lines, but described them by a reference to a map in the office of the secretary of state “ as there known and distinguished,” it was ruled that the locations should be corrected by the map referred to. Jackson v. Hunter, 1 Johns. Rep. 495. The words “ more or less” are held to be matter of mere description; therefore, if a man convey his land specifying the quantity 100 acres “be it more or less,” if it turn out only 60 acres, even equity will not relieve the vendee, for it is his own laches. Anon. 2 Freem. 106. So if lands be mentioned in a conveyance as containing so many acres, “ by estimation," for a small quantity over, the purchaser is not liable, nor the vendor for a small deficiency. Sir Cloudesly Shovel v. Bogan, 2 Eq. Ca. Ab. 688, pl. 1. How much wiU be covered by the words more or less is not accurately defined. In a lease of ten acres if they fall short three, the lessee, it is said, must be content. Day v. Fin, Owen, 133. On the other hand, if it specify the land by name, and add “containing 10 acres,” when in truth it contains 20, the whole will pass. Thetford v. Thetford, Savil, 114. We have ruled that a conveyance of a lot by name, “as said to contain 600 acres, be the same more or less,” is a performance of the condition of a bond to convey that lot “containing 600" acres, though the lot fell short 125 acres. Mann & Toles v. Pearson, 2 Johns. Rep. 37. Note, the consideration money paid was a gross sum, not a certain sum, at and after the rate of so much per acre.
      See also Van Wyck v. Wright, 18 Wend. 157; Root v. Puff, 3 Barb. Sup, J. Rep. 353; Luce v. Carley, 24 Wend. 451; Lush v. Druse, 4 Wend. 313. Jackson v. McConnell, 19 Wend. 175; Jackson v. Banenger, 15 J. R. 471 Mann v. Pearson, 2 J. R. 37.


text:
    REGULÆ GENERALES.
    Ordered, that in future, the days for non-enumerated motions be Monday and Thursday, in the first week of term, and Friday, in the second week.
    N. B. This alteration was occasioned by the late act of the legislature fixing the terms of this court, in consequence of which, Thursday is become the quarto die post.
       The rules of October, 1801, and July, 1802, are therefore, annulled.

       See to the same effect Rule 36 of Sup. Court.

   Ordered, that every person who shall have regularly pursued juridical studies, under the direction or instruction of a professor or counsellor at law, for four years, within this state, or shall have been admitted to the degree of counsellor at law in any other of the United States, and practised with reputation, as such, for, four years in such state, shall be entitled to a license to practise as counsel in this court; and that the second rule of October term, 1797 be annulled.

In this vaction Mr. Justice Radcliffe resigned his seat on the bench.

       No person other than a natural born, or naturalized citizen of the United States, shall be admitted as a counsellor or attorney of this court, Rule of .A ugust, 1806.


text:
    Atterbury against Teller, Jun.
    In an action on a promissory note, if, in consequence of the plaintiff's attorney having no agent in Albany, the suit be non-prossed there for want ot declaring, and judgment by default be obtained in Hew York, and the damages assessed by the clerk endorsed on the note, the court will, when the costs of non-pros have been paid, and the judgment in Hew York vacated, order the damages assessed and endorsed to be struck out, that the plaintiff may, in a second action, proceed to trial without any embarrassment from the former proceedings.
    This was an action on two promissory notes, on which the clerk had assessed damages.
    A former suit had been brought on the same notes which were the foundation of the present action. The attorney for the plaintiff lived in New York, and had not any agent in Albany, near to which the attorney of the defendant resided. Whilst the plaintiff’s attorney was proceeding, in New York, to obtain judgment, the defendant’s attorney placed up, in the clerk’s office in Albany, the usual notica of appearance, and of a rule to declare, after the expiration of which, no declaration having been received, the defend ant, after the regular affidavit of due service, entered a non pros for not declaring. During these transactions in Albany, the plaintiff went on in Eew York, and there obtained, subsequent to the entry of non pros in Al-[*496] bony, a judgment *by default; after which the clerk of the court duly assessed damages, and endorsed the amounts on the respective notes. The attorney on record for the plaintiff having been changed, the present attorney discovered the above circumstances, and as the judgment of nonpros had been entered in consequence of the original attorney for the plaintiff not having had an agent in Albany, he paid the defendant’s attorney the costs of nonpros, and agreed to vacate his own judgment, which was accordingly done.
    A second action being now commenced, the. plaintiff was apprehensive that the assessment of damages under the first, might be made use of on the trial, as a species of judgment already recovered.
    Pendleton,
    on affidavits containing the above facts, moved for liberty to strike out the assessment endorsed, and proceed to trial on the merits, in the same manner as if the damages had never b8en assessed.

      Van Antwerp

    resisted the motion, relying on the assessment being conclusive as to the amount.
   Per Curiam.

Take the effect of your motion, with costs of this application to be paid by the defendant.

Motion granted.


text:
    Jackson ex dem. Smith, against Hammond.
    New nisi prius record allowed to be filed, and a postea endorsed thereon, according to a judgment of six years antecedent, and execution thereon, . upon affidavits showing the probable loss of the originals.
   , In this cause, on an affidavit stating a verdict having been, in 1792, taken for the plaintiff, subject to the opinion of the court, on a case agreed on between the parties, on which judgment had been given, in 1798, for the plaintiff; and also, that the nisi prius record and issue roll were not to be found in the office of the clerk of this court, nor the nisi prius record among the papers of the former clerk of the circuit in which the cause was tried, and if left with the plaintiff’s attorney, had been burnt or lost.

Leave was given to make up and file a new nisi prim record, with a postea to be endorsed thereon, conformable to the minutes of the trial, and also to enter up judgment and issue execution for the plaintiff, according to the api nion of the court in 2798.

No opposition.

       A fi. fa. having, after levy upon it, been accidentally burnt in the house of a deputy sheriff, the court ordered a new p. fa. to be made out and delivered to the sheriff. White v. Lovejoy, 3 Johns. Rep. 448.


text:
    * Graham against Woodhull
    in slander, for saying of the plaintiff that he was peijured, and a particular perjury pleaded in justification, the court will, on affidavit of the ab-senco of the witness by whom it was to be proved, give leave to amend by pleading another perjury, on payment of costs.
    This was an action brought against the defendant for saying that the plaintiff had been guilty of perjury. To this the defendant had pleaded the general issue, and a justification, setting forth a particular perjury committed in an examination before Thomas Cooper, Esq. one of the masters in chancery.

      Hoffman

    moved for liberty to plead another plea, or to give notice of special matter, to be given in evidence on the general issue, in addition to the pleas already pleaded. The application was founded on an affidavit stating the above facts, and also that the pleas were delivered in August last, and issue soon after joined; that at the time of pleading the above pleas, one Gfleeson, who could have proved the truth of the above justification, was in New York, or its vicinity, and the defendant relied on being able to produce him at the trial; but, that since that time, G'leeson had quitted this state, and was gone, the defendant knew not whither; that the charge of perjury was true, and that, under the idea of being able to have the benefit of G-leeson’s evidence, the defendant had not given notice of justifying by proof of another perjury by the plaintiff before the recorder of New York, on an application for relief under the insolvent law.

      Bogert, contra.
    The defendant’s plea of justification is confined to that before the master. The other may, even allowing it to be true, have taken place long since. The question, therefore, is, whether the court will allow a subsequent perjury, admitting it to have been committed, to justify a former charge of perjury. This is an action of slander, and out of the general rule of amending and ad ding pleas.
    Hoffman, in reply.
    The declaration is general; and, foi ¿my thing that appears, both perjuries might have- preceded the action, nay, contemporaneous, as they might be in relation to the same discharge. We only ask to amend on the usual terms of paying costs.
   After some little conversation on the bench, in which it was conceived this practice might possibly lead to hunting for instances of perjury, the court granted the motion, on ^payment of costs, saying they could not [*498] make any distinction between actions of slander and other cases.

Motion granted.

       See Lent v. Butler, 3 Cow. 370; Williams v. Cooper, 1 Hill, 637.


text:
    Spencer against Sampson.
    If a cause be important, or intricate, it is cause for a struck jury. In,actions for words to obtain it, the truth ought to be denied, and the cause at issue «t senib.

    This was an application, on the part of the plaintiff, for a struck jury, in an action on the case for a libel.
    The affidavit on which it was founded stated, that the words spoken of the plaintiff, were concerning him in his official character as attorney-general, were false, and that the cause was at issue.

      W. W. Van Ness

    opposed the motion, and urged, that to entitle to a struck j ury, the cause ought to be important and intricate; that though he might allow the importance of every cause relating to character, yet its intricacy he must deny, and both these circumstances are necessary by our statute.
   Per Curiam.

The words of the statute are, “ intricate or important.” It is of great consequence to this court to protect its officers, and those of the public, in the discharge of their duty. Take your rule

Buie for struck jury.

       The rule as to struck juries, for libellous words on official characters is, that they must be spoken of the party in his official character. Van Vechten
        v. Hopkins, 2 Johns. Rep. 373. Thomas v. Croswell, 4 Johns. Rep. 491, and the truth of those words denied. When these requisites are complied with, a struck jury will be granted in an action by an attorney-general, (the case in the text,) a district attorney, Foot v. Oroswell, in the text, the plaintiff having in a subsequent term amended his affidavit, 1 Johns. Rep. 161, a recorder, or ex officio director of a banking company, Livingston v. Cheetham, 1 Johns. Rep. 61, or a member of congress. Thomas v. Rumsey, 4 Johns. Rep. 481. But that tho government of the United States, is concerned, is not a sufficient reason for a struck jury, Hartshorne v. Gelston, 3 Caines’ Rep. 84, nor that the plaintiff, in an action for a libel, was formerly a resident minister from a foreign power, if the transaction be stale, and he long ago superseded. Genet v. Mitchell, 4 Johns. Rep. 186. But in an action by a turnpike company for opening a road so near to a turnpike as to affect the tolls, a struck jury will be granted, New Windsor Turnpike Company v. Ellison, 1 Johns. Rep. 141. So, it is said, if the dispositions of a county be unfavorable to turnpikes, New Windsor Turnpike Company v. Wilson, 3 Caines’ Rep. 127, or a town contribute to the expenses of a suit, Stryker v. Turnbull, 3 Caines’ Rep. 103, or in a Long-Island cause a right of fishery be'in question. Value to the amount of 18,000 dollars in two suits have, on an affidavit of eminent counsel as to the importance, been held sufficient to warrant a struck jury. Livingston v. Smith, 1 Johns. Rep. 141. But in another case, a total loss of 21,000 dollars was not. Wright v. Col. Ins. Co., 2 Johns. Rep. 211. So where the sum was 1,000 dollars, and a common jury had been discharged, because unable to make up their verdict. Anon. 1 Johns Rep 314. See also Parker v. Livingston, 2 Wend. 296.


text:
    Foot against Croswell.
    S. P. as last case, and for want of those circumstances rule refused.
    This was a similar application. The affidavit stated the action to be for libellous words spoken of the plaintiff, exhibiting him in an odious point of view, as guilty of swindling; that a right determination was important to his character in society, and issue joined.
   Per Curiam.

The plaintiff can take nothing by his motion ; his affidavit is defective, in not stating that the words were spoken of him in his official character of district attorney, and in not swearing to their falsehood.

Struck jury denied.


author:
      Per Curiam.

      Spencer, J.

text:
    Arden and Close against Rice, White and Townsend.
    If the court be satisfied a demurrer is put in merely for delay, aftd the opposite side has noticed the demurrant for argument, who does not appear, the demurrer will be overruled, and a rule for judgment ordered, the party obtaining it stating himself ready to open the rule if good cause of demurrer, or merits, be shown. Judgment may be entered upon a cognovit m vacation.
    This cause had been noticed by the plaintiffs for argument, at the last term, on a general demurrer filed by the defendants to the declaration; the court had, on the statement of the plaintiffs’ counsel that the demurrer was merely for delay, overruled it, and granted a rule for judgment, the *counsel pledging himself to open [*499] the rule any day on an affidavit of good cause of demurrer,-or of merits. On service of the rule for judgment, the defendants gave a cognovit, on which the plaintiff entered up his judgment in the last vacation.

      Foot

    moved to set aside the judgment, contending that it could not be entered but in term.
    Some little variance of opinion existing on the bench respecting the practice, on this point, it stood over till the last day of term, when the court thus decided:
   Per Curiam.

By the 8th rule of April, 1796, judgment, after a default entered, may be entered at any time after 4 days in term have intervened. The rule of July term, 1796, ordering all rules for judgment to be entered in term, and not in vacation, was abolished in April term, 1799, and restored the first rule. There is no good reason why four days in term should be given in this case to the defendants, any more than on a warrant of attorney to confess judgment. The defendants take nothing by their motion.

Spencer, J.

dissented, on the ground that the practice had been different.

Motion denied.

       Judgment may be entered in vacation as of the preceding term on a warrant of attorney given in that vacation to enter up judgment on a bond payable immediately. King v. Shaw, 3 Johns. Rep. 142. A warrant of attorney should also authorize the entry as of the preceding term, when given in vacation. But except in the above cases, neither interlocutory nor final judgment can be entered in vacation. Hogeboom v. Genet, 6 Johns. Rep. 325. To enter a rule nisi for judgment on the 4th day of term after a verdict, is no violation of an order to stay proceedings. Hackley v. Hastie & Patrick, 3 Johns. Rep. 253. It may be entered on any day in term. Rose v. Rock, 6 Johns. Rep. 330.


text:
    Gilchrist against Van Wagenen and Moore. Lawrence against Van Wagenen.
    Where an attorney has been, from peculiar circumstances, induced to authorize the sheriff to discharge a prisoner, on a single bail, who afterwards turns out insolvent, the court will, if no opposition be made, and the attorney’s conduct appear Iona fide, allow 1dm, after filing common bail under the statute, to put in special bail, for the purpose of obtaining a surrender of the defendant’s body, to save himself from liability.
    This was an application by the attorney of the plaintiffs, for liberty to file special bail in both suits, to enable him to surrender the defendant.

    The circumstances, as disclosed on affidavit, were these: the defendant, Van Wagenen, had been arrested in both actions, one of which was for 4,000 dollars, and the other for 400 dollars, at a very late hour of the night, and was by the officer who took hjm, carried to the house of the plaintiff's attorney, who was then in bed. Being called up, the defendant requested him to take as bail one John S. Moore, who was at first refused. But on the defendant’s represent ing the distressed state his family would be in, and the shock it would be to his credit should he go''to jail, the attorney, on receiving faithful assurances that sufficient bail should be put in by nine 9 o’clock the next morning, agreed to accept *John S. Moore as bail for [*500] that night, and the defendant was, accordingly suffered to go at large. The defendant, however, instead of putting in satisfactory bail, as he had promised, went immediately on board a vessel that he owned, which was bound for the West Indies, though he knew at the time that Moore, who has since been declared a bankrupt, was then insolvent. On this the plaintiff’s attorney filed common bail in each of the suits, according to the provisions of the statute; but having been threatened by the plaintiffs with being called on for the amount of their debts,

      Boyd

    made the application above mentioned, which, not being opposed, was granted.

         See ante, p. 11, n. (a), and Van Rensselaer v. Hopkins, 3 Caines’ Rep, 136, n. (a)

   Motion granted.


text:
    Ex parte P. Reynolds.
    If a man bo turned out of possession, by a mistake in executing a writ ol possession against him, instead of another, the court'will, on motidn, grant relief, and order restitution. •
    This was an application for a writ of restitution. The facts are stated in the opinion of the court, which was delivered by.
    Spencer, J.
    It appears by the affidavit of the deponent, (and the allegation is uncontroverted,) that in October last, upon a writ of habere facias possessionem, issued out of this court, in the case of Jackson, ex dem. Low and others, the deponent was turned out of possession of a house and 50 acres of land, being part of lot No. 37, in Romulus, in the county of Cayuga; that the possession held by him was delivered by the agent of Mr. Low; that the deponent was, prior to the commencement of the ejectment against James Reynolds in peaceable possession of the land from which he was expelled; that the object of the suit against James Reynolds was for the recovery of different lands which he held on another part of the lot, and that the two possessions were separate and distinct.
    It is a settled rule of practice, that no tenant who was in possession anterior to the commencement of an' ejectment, can be dispossessed upon a judgment and writ of possession, to which he is no party. It is the opinion of the court, that Peter Reynolds is entitled to relief, and that a writ of restitution issue to reinstate him in the possession of the, premises from which he has been thus irregularly ousted.
   Restitution ordered.


text:
    *Durkee against Brackett, q. t
    If a Justice of the peace, in a cause before him, admit a plaintiff to be sworn and testify as a witness in his own cause, this court will grant a rule, or certiorari, as the party may be advised, to have that matter returned.
    This was an application for a rule, or certiorari, to be directed to the justice of the peace before whom the cause was tried, requiring him to certify whether Ichabod Brackett, the plaintiff before him, was not by him permitted to be sworn as a witness, and testify in his own cause.

      Harison,

    in support of the motion. As no bill of exceptions will lie in this case, the injury will be without remedy, unless the court, by virtue of their superintending jurisdiction, please to interpose. This they have authority to do from their general controlling power. This differs from the applications to return evidence, because there it would be to assume a right to determine on facts, matters cognizable by a jury alone. The granting of a certiorari is not confined to reasons that appear on the record. In 4 Yin. 842, letter D. pi. 7, tit. Certiorari, the writ was allowed, to inquire whether the defendant, who had pleaded his protection as the Icing's servant, was attending on the Icing for his own business, or the Icing's.

    Henry, contra.
    This is, in substance, to bring up the fact; and this court has decided it will not oblige a justice to return evidence.,

       1 Rev. Laws, 316. The words of the act are, “When any one who is Impleaded before any judges or justices, doth allege an exception,” &e. Therefore, qtmre as to this, and see 2 Inst. 427, (2).

       By Laws N. Y. sess. 28, April 9th, 1808, c. 93, s. 3, he must return specially as to the facts set forth in the affidavit on which the certiorari is granted. See Schoonmalcer v. Trans, 2 Caines’ Rep. 116. See Code of Procedure, secs. 360, 362.

       In Church v. Hubbart, on error from the district court of Massachusetts, 2 Cranch, 239, a question was suggested by Chase, X, whether a bill of exceptions would lie to a charge given by the judge to the jury, unless on a point upon which the opinion of the court was prayed; doubting whether it would within the statute of Westminster. Marshall, Ch. X, thought it would, observing, that if in this country the question could not come up by a bill of exceptions from a district court, the party would be without remedy.

   Per Curiam.

Take your rule, or certiorari, as you may be advised.

Motion granted.


author: Per Guriam.

text:
    Jackson, ex dem. Hogeboom, against Stiles, Griffin, tenant in possession.
    In ejectment, on a motion to set aside the rule to appear and enter, &6., if the application be founded on irregularities to be supported by inspection of the declaration, &c., on file, and the plaintiff produce affidavit of due service, &c., it will be presumed that all was regular, the tenants not producing the declarations and notices served, especially if¡ by granting the motion, the statute of limitations would attach.
    In this and several other actions, under demises from the same lessor, the tenants moved to set aside the rules which had been entered to appear and enter into consent rules, or that judgment go against the casual ejector.
    The notice of motion stated that the applications would be grounded on an inspection of the declarations, notices, and affidavits on file, by which it would appear that three of the notices were directed in blank, and one to James Perkins, instead of the tenant, James Kerman.

      Harrison.

    In ejectment the declaration is analogous to process, and ought, therefore, to be governed by [*502] the same *rules. If a sheriff were to serve one man with a writ directed to another, it certainly would not be a legal service, and, in ejectment, a notice to A. is not a notice to B. Kerman can never be Perkins. The court will not permit the possession of one man to be changed by proceedings against another. Ex parte Reynolds, this term. (Ante, 500.)

      Woodworth

    (Attorney-General) read an affidavit, stating that James Kerman was personally served, and that the declaration, with notices annexed, were served on the tenants. He also referred the court to Jaclcson v. Stiles, ante. 249, for the same facts, on a former application in this very cause. The effect of the present motion, if "allowed, would be, he said, to try and decide the cause against the lessor of the plaintiff, as the limitation of the statute will then apply. See Jackson v. Horton, 3 Caines’ Rep. 197, and the note there.

      Harrison, in reply.
    The effect of the statute cannot be taken into consideration. Suppose trespass for carrying away goods brought, instead of assumpsit, and the six years passed, would the court interfere to prevent the operation of the statute ? This case deserves no indulgence; twelve months elapsed before the application to amend in August last was made.
   Per Guriam.

The application in these suits is founded on a reference to the proceedings on file, by which, it is said, it will appear that one of the notices was misdirected, and the others in blank. In the affidavit on behalf of the plaintiff, it is sworn, that the direction of the one served on James Kerman, was to him- in his name, and that the tenants were duly served: if the facts were otherwise, it would have been very easy to evince them, by producing the several notices, ¿ce. actually served, without referring to those on file. It is, therefore, to be presumed that the services have been regular. The court will, in the present case, support this presumption, as otherwise, by the intervention of the limitation of the statute, the plaintiff would be barred. The case of Eeynolds is very different from this; there no proceedings had been served on him; a different tract of land was. claimed ; the first intimation he had was by an execution which turned him out, and that very execution against *the possession of [*503] a different man. We there protected the right of the party, and we do so here. The tenants can take m thing by their motion.

Motion denied.


text:
    J. and E. Kirby against Watkies.
    If there be sufficient time before a circuit to admit of the return of a commission in which the plaintiff has not joined, though the court will not vacate the rule on which it was granted, they will give leave to proceed to trial notwithstanding.
    'The defendant had, after due notice, obtained a rule in the last term for a commission, in which the plaintiff did not join, to examine a person in Port Republican, and since then had not given any notice of further proceedings under the commission. On these facts,

      Harrison moved to vacate the rule.
   Per Curiam.

Let the rule be so far vacated as to permit the plaintiffs to proceed to trial notwithstanding the commission.

Motion granted.

N. B. On a commission to England, the court will, after eight months without a return, give leave to proceed to trial, notwithstanding the commission; but this does not prevent cause being shown, at the circuit, why the trial should not then be put off.

         As the permission to go to trial does not prevent showing cause at the circuit for a further postponement, it will be granted, though the time for returning the commission be not expired; Pell v. Bunker, 2 Caines’ Rep. 46, a fortiori if it be; Bushereau v. Le Guen, 2 Johns. Rep. 196. Rush v. Cobbet, 2 Johns. Cas. 10, against which a belief, sworn to by the defendant’s counsel, that the plaintiff has by his acts delayed the return is not sufficient. Id. ibid. Where, from circumstances over which the defendant could have no control it appears, even after a second commission, that a return could not have been had, and that the testimony expected is almost conclusive on the question, the court will vacate a rule permitting to go to trial, and give the defendant his full eight months from the issuing the second commission. Ferris v. Smith, 2 Caines' Rep. 253. The time for the execution and return of a commission arrived in England, is said to be three months. Juhel v
        United Ins. Co., cited post, 517. If the party has an agent in England, who is instructed to forward the proceedings four months from the issuing the commission, it is, in a statement of the same case in another place, (Caines’ Prac. 427,) said to be sufficient. When a plaintiff has delayed his own commission, judgment as in case of nonsuit, for not going to trial will be granted, as in other cases, unless he stipulate. Coles v. Thompson, post, 517, and Miller & Graham v. De Peyster, there cited. But the application will be refused if the delay complained of appear to have arisen from the neglect of the defendant’s commissioner. Coles v. Thompson, 2 Caines’ Rep. 47. The return should be by the commissioner to whom delivered, or a person who has received it from the commissioners, Murray v. Mar. Ins. Co., Caines’ Prac. 425, and should specify that the depositions were taken on oath; Bailis v. Cochran, 2 Johns. Rep. 417, a statement of which, in the caption of the depositions, by saying the witness “ was produced and sworn," &c., if signed by the commissioners, is enough. Bolte v. Van Rooten, 4 Johns. Rep, 130. See ante, p. 4, note'[l], and 74, n. (b).


text:
    Jackson, ex dem. Rosekrans, against Stiles, Howd tenant.
    In ejectment, the court will allow of excuses for defaults to protect the pas session, which, in other cases, would not be received. If the consent rule, &c., have been actually forwarded in time to be delivered to the attorney of the plaintiff in ejectment, and be, by mistake, filed in the clerk’s office, instead of being served, the court will set aside a judgment on such a default, and if a writ of possession has issued, award restitution, on payment of costs.
    This was an action of ejectment, brought to recover lands to which the tehant derived title under the state.
    The declaration, &c. had been duly served on the tenant, and by him delivered to the Attorney-General on the 14th of April last. The notice was of course for the last May term, and the consent rule and plea were, immediately afterwards, drawn and forwarded to a clerk in the office of the clerk of this court in Albany, directed to the attorney for the plaintiff, who the Attorney-General believed to reside in or near Albany. The consent rule and plea were duly received, but, from inattention in the clerk to whom they were transmitted, they were filed instead of being served. The consent rule and plea not having [*504] been received, the plaintiff took *his judgment by default against the casual ejector, sued out a writ of possession, and turned out the tenant. On these facts, it was intended to move the court, last term, to sot aside the judgment and writ of possession, and that a writ of restitution should issue; but it being inconvenient to both parties to bring it on then, a written agreement was entered into, consenting to postpone the application till this term, and that the delay should not be deemed a loches in the tenant.
    Gaines,
    on the above facts, substantiated by affidavit, now moved to set aside the default and subsequent proceedings, and that a writ of restitution should issue. There were, he said, but two objections which could be made to the motion ; 1st. That the default was not accounted for; 2d. That the application ought to have been made at an earlier day. As to the first, this court had allowed the miscarriage of pleas, when sent by the mail, to excuse a default (Hudson v. Henry, ante, 67,) and though this was not exactly that case, it was within its principle; for, the defendant’s attorney had taken every necessary step in due time. On the second point, the written agreement was a complete answer. In addition to this, no injury could' be induced by granting the application: if the plaintiff had any right, he would, on a trial, be able to prove it; on the other hand, if the motion was denied, it might be of the utmost prejudice, as it would shut out the defendant from all possibility of showing his title. Besides, the rule was not asked for but on payment of all costs, so that the plaintiff would be where he was, with all his rights, titles, and even his pocket unimpaired.

      Van Vechten, contra,
    read affidavits stating that the lessor of the plaintiff had beeen duly put in possession of the lands in question by the sheriff of the county, and had, on the same day, granted a lease of the premises to a third person; that in conversations with the lessor of the plaintiff] he-had acknowledged that he held under the patent of Clifton Park, whereas the premises delivered under the writ were claimed under that of Kayaderosseras, and that the lessor of the plaintiff had acknowledged he believed they were in Kayaderosseras. He, therefore, insisted that, as now the right of a third person was implicated,, the court *would not interfere; that the title was ac- [*505] knowledged, and it would, therefore, be useless. The excuse for the default he also denied to be similar to the case relied pn.
    Caines, in reply.
    The lease granted since the execution ol the Avrit, and before the signing of the agreement, must have been so recent as to admit of no improvements. The third person, therefore, can sustain no injury.- Allowing the right to be with the lessor, still it cannot be thus tried on affidavit. A jury is the tribunal for its determination. In referring it to a jury, he has all his rights, and the expense he has been put to we agree to pay. He, therefore, cannot suffer; but the defendant may, as he cannot obtain compensation from the state unless he shows a defence, to which alone he asks to be admitted.
   Per Curiam.

The proceedings on the part of the defendant certainly have not been perfectly regular, for they ought, in strictness, to have been sent to the agent of the plaintiff’s attorney. It appears, however, that every measure necessary for the defence was actually taken, though from an idea on one hand of the clerk of the defendant’s attorney, that the plaintiff resided near Albany, and a mistake on the other, in the office of the clerk of the court, the papers never reached their proper destination. In ejectment, as it is the creature of the court, every thing will be done to promote the justice of the case, according to right, and the court will go further to protect the possession, when it can be done without injury to the plaintiff’s claim, than it is willing, in other cases, to proceed. As, therefore, there was a full knowledge in October last of an intention to make this application, and the transactions are all of a recent date, we are of opinion that the default entered against the casual ejector, the judgment thereon, and the writ of possession sued out, be set aside, and a writ of restitution issue, on payment of costs.

Motion granted.

         Where the default was regular, and no trial had been lost, the court recognizing the case in the text, upon an affidavit of merits, set it aside, and admitted the tenant to defend. Jackson v. Stiles, 4 Johns. Rep. 489.


text:
    Kirby against Cogswell.

      kn endorsee of a firm of which he is a member may, on an endorsement made by himself in the style of the partnership, maintain an action against the maker of a promissory note. A judge’s certificate of probable cause, does not stay proceedings unless accompanied with notice of motion.
    This was an action on a promissory note by the endorsee against the maker. It appeared on the trial, which took place during the last Albany circuit, that the plaintiff was one of a firm, and had endorsed the note, in [*506] the name of the house, *to himself, and now sued in his individual capacity. On this account, an objection was taken, the defendant insisting that the plaintiff could not, by his endorsement in the style of the copartnership, transfer to himself,

       in his private character, the note so as to give a right of action. This, however, being overruled, the defendant, within the time limited by a rule, made a case, and served it on the plaintiff’s attorney. He, observing it to be incorrect, made another, detailing the facts accurately, and also served his, titling it an “amended case.” Milward v. Hallett, see ante, 344.
    On the first day of November term, the plaintiff filed his certificate of trial, nisiprius record, with the postea endorsed, and entered a rule nisi for judgment.
    On the 8th of November, the defendant, taking no notice of the case intended as an amendment, obtained, on his own statement of facts, a certificate from Mr. Justice Kent to stay proceedings. This, with a copy of his case, but without any notice of motion he served the next day on the plaintiff’s attorney, observing to him, at the same time, that the amendments according to the practice of the court, ought to have been proposed and not sent in the shape of a new case. The plaintiff’s attorney then offered to make a fair statement, as should be agreed on, alleging his ignorance of the strict rules of making a case. The defendant’s attorney seeming to evade this, the plaintiff, on the 16th of November, served a copy of a bill of costs in the suit, with regular notice of taxation, which he proceeded to execute, signed judgment, and issued a fieri facias.

      Van Antwerp

    now moved to set aside the judgment, and all subsequent proceedings, insisting that the certificate of the judge was a complete stay, without any notice of motion annexed, for the plaintiff had, as well as the defendant, a right to bring on the argument upon the case made.

       There can be no doubt of an individual partner being a legal endorsee of his firm; Bolton v. Puller, I Bos. & Pull. 546; but there would be great difficulty in proceeding against his endorsers.

   Per Curiam.

The question is, as to the operation of a certificate of probable cause to stay proceedings. The 4th rule of January, 1799, settles that, at the time of service of the order, it must be accompanied - with a notice of motion. The right of the opposite party .to notice for argument, does not take away the necessity of no-[*507] tice, for the mere certificate itself *is no stay. The defendant, therefore, can take nothing by his motion and must pay the costs of the present application.

Motion denied, with costs.

       The necessity of accompanying a certificate of probable cause, with a notice of motion, is settled by the case in the text. On a non-enumeratod motion it suspends the proceedings, during the term for which the notice is given, (4th Rule, January, 1199,) if the certificate be in general terms. If only till the 4th day of term, and there be then such a press of business, that the non-enumerated lay over, the certificate is by operation of law enlarged till the next non-enumerated day. Caines’ Prac. 35. Where a certificate is granted after the 4th day of term, it enlarges the time for moving in arrest of judgment to any other day. Bayard v. Malcolm, 1 Johns.’Rep. 310. If the motion be enumerated, it suspends the cause till heard, or the certificate be vacated. Jackson v. Brownell, 3 Caines’ Rep. 151. To give effect to the certificate, a copy should be served; a mere notice oí it is not enough. Cheetham v. Lewis, 2 Johns. Rep. 104. To bring a party into contempt for disobeying the certificate, the original should be shown at the time of serving the copy. Howland v. Ralph,. 3 Johns. Rep. 20. There is no difference in the practice .under an order to stay proceedings, and a certificate- of probable cause.
      As to staying proceedings on making a case see also Graham’s Prac., 2d ed. 334; 2 Wend. 246; 1 Cowen, 598; Code of Procedure, secs. 401, 264, and 348; and ante, p.


author:
      Per Curiam.
     Kent, J.

text:
    In the matter between the Mayor, Aldermen, and Commonalty of the city of New York, and the President and directors of the Manhattan Company.
    A judge cannot revoke his own warrant, appointing appraisers under the 5th sect, of the act incorporating the Manhattan Company. A freeholder in the city of New York is, under that section, incompetent to act as an appraiser of the damage done to the streets by laying the Manhattan pipes. Want of time and. place in a notice of preferring a petition is fatal. A rule nisi leaves the party at liberty to come in and oppose when the court is applied to for making it absolute. Whether Service of a notice on a cashier of a bank be -good, service, qu.

    This was an application to make, absolute a rule nisi, obtained last term, to confirm the report of William Pop-ham, Abijah Hammond, and Eichard Hatfield, three persons who, under the fifth section of the act incorporating the Manhattan Company, had been nominated and appointed by his honor Mr. Justice Kent, to estimate the damage done to the pavements of the streets of New York by the Manhattan Company, in laying down the pipes which convey water through the city.

      Harison,

    in support of the rule, read a petition from the Mayor, Aldermen and Commonalty of New York, stating, that all the streets and highways in the city are, by law, vested in them and their successors, and were so previous to the 2d of April, 1799.
    That the President- and Directors of the Manhattan Company, shortly after their incorporation, and without license from the petitioners, had dug, in several of the streets, trenches for laying the water pipes of the Company, and materially injured the pavements.
    That ineffectual endeavors had been used to bring the Company to an agreement with the petitioners, and, therefore, they prayed persons to be appointed to estimate, &c.
    He stated, also, from affidavits, that on the 6th of July last a copy of the above petition was served on the Manhattan Company, by delivering the same to their cashier; that this was previous to the delivery of it to Mr. Justice Kent for his warrant; (but how long previous the affidavit did not state;) that on the 12th day of the same month the warrant, appointing the three persons above named, was issued ; that on the 26th of the same July, a copy of the warrant *was served on the cashier of the [*508] Company, and, on the next day, a notice that the person so appointed would meet at 10 o’clok of the same day to proceed in the duties assigned to them.

      Hamilton, contra,
    insisted that, from the facts, as they appeared on the affidavits of the other side, it was manifest the notice of an application to appoint persons to estimate was imperfect; it specified neither time nor place, when and where the Company might attend to oppose the nomination of improper persons. That this was analogous to, and by the act intended as, a substitute for a trial by jury; that therefore, the same rights as would be had in that mode ought to be preserved in this, and of those rights that of challenge was one. He then read an affidavit by the President of the Manhattan Company, showing that Mr. Hammond was a very large freeholder in Hew York, and there had his principal residence; and, also, that the original cost of paving the places was only 3,525 dollars, though the damages which had been assessed, as a compensation for the injury, amounted to 6,881 dollars. From hence be contended that Hammond was an interested person, (though he might have acted perfectly conscientious,) as the houses of proprietors were assessed for the pavements opposite their lots, and the more was gotten from the Company the less would the freeholders be called on to pay. The notice, also, of attending the meeting of the persons appointed by the judge’s warrant, was of a piece with the rest; it was, as appeared by Mr. Remsen’s affidavit, served on him, as cashier of the Company, only ten minutes before the assessors were to assemble. In the next place, it might be a question how far any service was valid which was not served on the President himself, he being the head of ,the Company. It was also doubtful whether the judge had any jurisdiction; the act gives him authority only when the Company and the Corporation disagree; the petition did not state this, but that they did not agree.

      Harison, in reply.
    The act does not prescribe any time at which notice is to be given. It is evident, however, that there was no intention of surprise, as there were six days between the service of the petition and the [*509] ' judge’s warrant. *Supposing the analogy to trial by jury to be correct, still the Company were too late. The service of the petition was enough to set them on inquiry, and they have lain by till the whole business is finished, and then, because they think themselves aggrieved, they come forward. Were a party to be thug silent, and take the chance of a verdict, it would be too late for him to urge any challenge to a juror. The petition states that all endeavors to bring the Company to an agreement were ineffectual; whether this amounted to disagreeing, or only to not agreeing, and the distinction to be taken between them, he declined to argue.
   Per Curiam.

The application is, to affirm the report of appraisers acting under the fifth section of the statute incorporating the Manhattan Company. The act directs, that in case of disagreement, &c. it shall be lawful for tho judges of the supreme court of this state, or any one of them, (not being an inhabitant of the said city,) upon the application of either party, to nominate and appoint three indifferent persons to view, examine and survey the said lands, &c. and to estimate the injury sustained as aforesaid, and to report thereupon without delay; and upon the coming in of such report, and the confirmation thereof by the said court, the Company shall pay the sum mentioned in the report,” &c. On the part of the Company, the first cause shown against confirming is, that the application to Mr. Justice Kent was made without due notice. The second, that one of the appraisers was interested, and, therefore, an improper person. The third, that the damages awarded are excessive. As to notice, it is not denied that it was necessary, though it is insisted that which was given was sufficient. The petition appears to have been served on the cashier, and contains neither time when, nor place where, the application would be made to the judge. The notice, then, is altogether irregular. It wants the necessary requisites of time and place to enable the opposite party to attend and object to the appointment of appraisers, On the second point, the affidavit of the President shows, that one of the persons nominated was interested; and this again proves the importance of notice, for had the [*510] Company appeared *they might have shown his interest, and hindered his appointment. This interest is not denied by the corporation; they merely urge that it is alleged at too late a period. As to the damages, an injury to the amount of 6,881 dollars is assessed on that which originally cost only 3,525 dollars. The corporation, it is true, say that the streets were much injured, but this ought to have been shown more satisfactorily, and is sufficient to send this matter for further investigation. A question, however, has been made, whether the Company can now avail themselves of these objections ? They must be at liberty so to do now, or they would be remediless. There was not any notice given them to attend before the judge; therefore, to him they could not state their objections. Nor could they have applied to the judge who granted the warrant, to make a further or other appointment, for under the words of the act, the judge cannot revoke his warrant. He, therefore, is functus officii. The only resource, then, is to this court They have no authority to interfere till this application is made to confirm, and then, the matter being before them, they may proceed on the objections taken. The report was returned on the last day of the last term, and from the manner in which the corporation have taken their rule, they seem to suppose it might now be opposed by showing cause. There can be. no ground, therefore, for imputing loches,' as the company have come forward at the earliest period they could, after the court was in possession of the cause by filing the report. But it is contended that the notice, though defective, was enough to put the Company on inquiry, and they ought to have applied to this court directly after service of the petition. The rule of practice in this court, as to defective notices, does not apply to this case. It is a special mode of proceeding under a particular act, and therefore, not within our regulations as to defaults. The court are of opinion that the report be set aside.

Kent, J.

I dissent from this determination. The fact is, that the bank had notice of the petition, and of the allegations of that petition. The denial of notice goes only as to time and place. The first intimation they received was on the 6th of July, and the warrant was not issued till the 12th. *They then again, on the 26th, re- [*511] ■ ceived a further notice, and it is not till the 28th of November that the report is made. The bank remained .inactive, seeing the whole business progress, and, had its termination been favorable, they would have abided by the event; as they deem it otherwise, they now come to us. It is a rule of moral justice, that no man shall be permitted to speculate on his own delay. It is against all rules of practice, which require due diligence. If a party has a short notice of trial, it is enough to set him on inquiry ; and if he does not immediately come forward at the next term, we never set aside the verdict he has permitted to go against him. MUvers v. Macldan and Oelston, January term, 1800i The bank might have applied in the last term either to a judge or the court.

Report set aside.

       “If the head be not warned, (notified,) the body is not.” Agreed, Bro. tit. Corporation, pl. 6


author: Per Ouriam.

text:
    The People against The Judges of the Court of Common Pleas in and for the County of Washington.

      Mandamus lies to the court oí common pleas for not signing a bill of exceptions.
    Eussel moved for a peremptory mandamus

       to be directed to the judges of the common pleas for the county of Washington, ordering them to sign a bill of exceptions.

       As to affidavit for Haight v. Turner, 2 Johns. Rep. 371. When rule to show cause only. People v. Judges of Cayuga, 2 Johns. Cas. 68. When to forbid judgment. People v. Sessions of Chenango, 1 Johns. Cas. 179 S. C. with opinion of Kent, J., 2 Caines’ Cas. in Error, 319. When to compel judgment. Fish v. Weatherwax, 2 Johns. Cas. 215. Haight v. Turner, ubi sup. When not. Jansen v. Judges of Ulster, Cole. 117. S. C. 2 Johns. Cas. 12. When to sign bill of exceptions, and when not. People v. Judges of West Chester, Cole. 135. S. C. 2 Johns. Cas. 118. Sikes v. Ransom, 6 Johns. Rep. 279. When to correct and compel proceedings. The King v. Justices of Wiltshire, 1 East, 683, and 10 East, 404. The King v. London Court of Requests 8 East, 292. Rex v. Justices of Leicester, 1 East, (n) 686. When not for allowing an account. Adams v. Supervisors of Columbia County, 8 Johns. Rep. 323. The King v. Justices of Kent, 11 East, 229. When to restore an attorney, or officer. The People v. Justices C. B. of Delaware, 1 Johns. Cas. 181. The King v. Company Free Fishers, &c., 8 East, 353. The King v. Commissary, &c, of Bishop of Winchester, 8 East, 573. Rex v. Clarke, 2 East, 75. When to grant administration. The King v. Inhabitants of Horsely, 8 East, 408. When to inspect books. The King v. Lucas, 10 East, 235. When to give benefit of an insolvent act. Ex parte John King, 7 East, 91. When not to commissioners of bankrupt to certify conformity. Ex parte John King, 8 East, 92. When not as prospectivo. The King v. Chapelwardens of Haworth, 12 East, 556. When not as too late. The King v. Justices of Lancashire, 12 Bast, 366. When peremptory. People v. Judges and Supervisors of Ulster, 1 Johns. Rep. 64. People v. Collins, 7 Johns. Rep. 549. Form of writ. The Kmg v. Bishop of Oxford, 8 East, 345.

         The Reg. Brev. 182, contains a writ grounded on the stat. Edw. I, commanding the judges to put their seals guata formam statuti. If they make a false return, an action lies against them. See 2 Inst. 427. Show Pa. Cas. 117.

   Per Ouriam.

Take your rule to show cause the first day of next term. The practice is, not to grant a peremptory mandamus in the first instance.

Rule to show cause granted.

       As to compelling the judge to sign a bill of exceptions see Graham’s Prac. p. 321; 2 Rev. Stat. 422, sec. 15; 2 Caines, 313; 2 Johns. Cas. 118; 6 J. R. 219; 5 Wend. 132.


text:
    Manhattan Company against Brower.
    If a person in custody on mesne process sign a warrant of attorney, the nature of whieli is explained to him by an attorney, who does not witness it as Iris attorney, the court will not ut semi, set it aside.
    The defendant in this suit being in custody on mesne process, executed a warrant of attorney to confess judgment for the amount of the debt, but it' was not witnessed by any person as his attorney, acting in that capacity for him.
    Hoffman,
    on this ground, moved to have the warrant of attorney delivered up to be cancelled, and to vacate the judgment entered.
    Hamilton, contra,
    read some affidavits, showing that the defendant, at the time of executing the instrument, was perfectly well apprised of its nature, which had been explained *to him by an attorney, though not [*512] actually Ms attorney, or the attorney of the plaintiffs, and that the whole transaction was Iona fide, and without surprise.
    The inclination of the court appearing to be against the application, the proceedings having been within the spirit of the rule relied on; and it being suggested at the bar, that it was doubtful whether the English rules of E. 15 Car. II. and E. 4 Geo. II. had ever been made rules of this court, though the practice was acknowledged to have been in conformity to their regulations,

      Hoffman

    consented to withdraw his motion, and let the judgment stand as a security for the debt, the plaintiffs delivering a declaration, and agreeing to go to trial on the merits.

         In all cases not provided for by the rule-i of the supreme court, the practice of the K. B. is said to be adopted. Dubois v. Philips, 5 Johns. Rep. 235.

        а) In Hutson v. Hutson, 7 D. & E. 8, court of K. B. held, that the benefit of the English rule referred to, could not be waived by a prisoner, and that the presence of the plaintiff's attorney was insufficient, though acting for the prisoner at his request and entreaty, and though pressed to send for another attorney, to witness the instrument, with the nature of which the defendant was perfectly acquainted.

   Motion withdrawn.


text:
    Ross and others against Hubble, and Jemima, his wife, administratrix of Paterson.
    Where it is necessary only to endorse an appearance on the writ, bail not being required, it is the duly of the clerk of the court to enter the appearance of record. If judgment be signed before it is so entered, it is good, and the court will order the appearance to be entered nunc pro tune.

    This was a motion to sot aside the default entered in the cause, and all subsequent proceedings, with costs.
    ■ The affidavits contained a variety of unimportant facts, but the only question worth noticing, which was relied on, was one of practice, whether it was regular to a writ, which was in trespass only, and returned with the names of the defendants endorsed, to enter their appearance in the clerk’s office, after judgment was signed.
    It was contended that as the court would order it to be done on application, it was in fact, doing no more than that which the court would sanction.

       If the writ be not returned, nor bail filed, nor ar appearance entered, it is irregular to enter a rule for pleadi lg, because the iourt is not possessed of the cause; the rule, and proceedings on it wifi, therefore, be set asida Howell v. Denniston, 3 Caines’ Rep. 96.

   Per Curiam.

It is said that no appearance of the defendants, by special or common bail, or an entry of an appearanee was of record, when the default and judgment were returned. As the process in the cause did not require bail, the defendants endorsed their appearance on the copias. It was the business of the clerk, and not of the attorney, to have ^"entered their appearance. This [*513] may be done nunc pro tune. The loches of the clerk ought never to prejudice the attorney. We, therefore, deny the motion with costs of opposing.

Motion denied, with costs.

       On this point see also Hester v. Haynes, 6 Wend 547.


text:
    Waterbury and another against Delafield.
    Where a suit has been consolidated, and a commission sued out in the consolidated cause, in which the defendant had joined, the court will allow the evidence taken under it to be read on the trial of the principal suit.
    This was the principal suit in several actions on a policy of insurance, in which a consolidation rule had been granted. A commission to examine had been taken out, titled in the consolidated cause; in the commission the defendant joined, and titled his cross interrogatories in the same manner.

      Hoffman

    moved to read, in the principal cause, the evidence taken under the commission, titled in that which had been consolidated. The Court, after some words by Pendleton, in opposition, granted the motion with costs to abide .the event of the suit.
   Motion granted.


text:
    In the matter of Randall, an absent debtor.
    If the trustees of an absent debtor’s estate admit there will be a surplus after payment of all demands, the court will, on petition, order a part to be paid to the debtor, or his agent.
   The attorney of the debtor, who was still abroad, applied to have the sum of five thousand five hundred dollars paid to them by the trustees of the creditors, on a petition stating, that after payment of all demands then established, and keeping in hand a sufficient sum to answer any which might appear, there would remain, of the money, now in the Manhattan bank, to the credit of the debtor’s estate, a very large surplus.

These facts being admitted by the trustees, the Court ordered according to the prayer of the petition.


author:
      Spencer, J. Thompson, J.
      Kent, J.

text:
    Gordon, survivor of Munro and Gordon, against Bowne.
    Where a plaintiff has neglected to file a copias and enter an appearance for two terms, though there be an affidavit swearing to an agreement that all the proceedings should be considered as of a third term antecedent, the court will not give leave to file the copias and enter the appearance nunc pro tune as of the third term past, especially if it appear that it be asked with a view to prevent a set-off of a note falling due since the tiiird, and before the second term, but will order the copias, &c., to be as of the second term past. Endorsing an appearance on a writ of a term past, is not evidence of an agreement that the proceedings shall be considered as of that term.
    This was an application for leave to file the copias, and enter the defendant’s appearance nunc pro tune, as of the last August term.
    The facts, as they appeared on the several and long affidavits read, were, that the plaintiff and his partner were the assured on a policy of insurance, underwritten by the defendant; that being in embarrassed circumstances, and unable to meet * their payments, they en- [*514] tered into a composition with their creditors, of whom the defendant was one, to pay them, on receiving a release from all demands, fifteen shillings in the pound; ten shillings to be paid by approved endorsed notes, and the remaining five shillings by their own; the endorsers to receive an assignment of a part of the property of the plaintiff and his partner,, by way of security against their endorsements; that, in pursuance of this agreement, the defendant received his two notes of ten shillings, and five shillings in the pound, executed a release, and the policy in question was assigned to persons for whose benefit the present action was brought; that the note for ten shillings in the pound was duly paid by the assignees of the policy. The attorney for the plaintiff called on the defendant, a few days before August term, to inform him of the intended suit, when the defendant assured the attorney, that the matter would be accommodated, and, if not, that he would consent to proceedings being as of August term; that a copias was afterwards sued out on the second of August last, returnable the sixth, but not served till after August term, at which time the defendant endorsed his appearance, and, as the plaintiff’s attorney verily believed, with intent, that all proceedings should be deemed as of August term; that the declaration was titled as of August term, though the copias has not yet been filed; that since August, the plaintiff has become a bankrupt, and that the defendant had pleaded, giving a notice of setting off a note which fell due on the 8th of September last, and was the very note for five shillings in the pound given by the plaintiff and his partner, in composition for their debts.

      Hoffman

    insisted that the endorsement of the writ by the defendant, was tantamount to a written agreement, as it was evidence in writing of the agreement, which was further corroborated by the pleadings.

      Cur. ad. vuli.

   Spencer, J.

delivered the judgment of the court. The defendant resists the application, relying principally on this; that he holds, to nearly the amount of the plaintiff's demand, a note against him due on the 8th oi [*515] September *last, which he intends to set off. The object of the plaintiff’s motion is, if possible, to exclude this effect; on this ground, that his demand is assigned for the benefit of certain persons who have paid debts for him, incurred by endorsements to his compounding creditors. The defendant denies notice of such assignment ; both parties admit the insolvency of the plaintiff. The verbal agreement between the attorney for the plaintiff and the defendant cannot be attended to; a rule of this court forbids such' agreement being alleged.

There has been loches on the part of the plaintiff in not entertaining his suit as of August term, and to avoid that loches, the court is now applied to. In granting favors of this kind, the court ought to be careful not to do injustice, and it appears to them, that granting the rule as applied for, might have that effect; for, most certainly, the defendant’s claim to offset is better founded than that of the assignees to recover. Let a rule be entered, that the plaintiff have leave to file his writ, and enter the defendant’s appearance, as of the last term.

Thompson, J.

I am sorry to be under the necessity of differing from the court; but I think the endorsement of appearance is evidence of an agreement as strong as if it had been reduced to writing, and sufficiently indicatory of the intent of the parties, to avoid any of the consequences, against which the rule in question was framed. How far the defendant may, by filing the copias, and entering an appearance of August term, be precluded from a set-off or by the present rule entitled to it, is unnecessary to determine. My opinion is, that the plaintiff ought t<? nave the effect of' his motion.

Kent, J.

I concur in the opinion last given. I deem

it a point of moral rectitude to enforce all agreements, when the evidence is such as is not contravened by any rule of law. But as the judgment of the court is, to deny the full extent of the plaintiff’s application, he can take no more than has already been pronounced.

Buie to file the writ, and enter the áppearance as of last term.

         See Palmer v. Berrian, 3 Caines’ Rep. 131, and note i,here.


text:
    *Masters against Edwards.
    If a defendant be discharged for want of being duly charged in execution, he can never be taken on a ca. sa. issued ón the judgment in the suit on which he was in custody.
    The defendant had been surrendered in exoneration of his bail, final judgment obtained against him, and aftei three months, he was, on regular notice to the plaintiff, superseded, for want of being charged in execution in due time. Notwithstanding this, the plaintiff’s attorney sued out an execution against the body of the defendant, upon the judgment on which he had been in custody, and took him upon the ca. sa. thus issued.
    Henry,
    on these facts, disclosed by affidavit, moved that he should be discharged.
    This case, he said, is to be distinguished from that of Brantingham; in that, the court held the .plaintiff entitled, after notice of a rule for a supersedeas, to come in, charge in execution, and show that circumstance as a cause for refusing the application. Blandford v. Foote, Cowp. 72, recognizes the principle of the application. The court there decided that a man released for want of being charged in execution, might be taken on a ca. sa. in an action founded on the judgment in the original suit. It is to be inferred, therefore, that on an execution sued out in the original suit, he could not be taken.

      Benson and Biggs, contra.
    The English courts proceed on ■his maxim, “ once supersedeable, and ever supersedeable.” This we have departed from, and overruled, in Brantingaam's Case. Besides, the whole object of the motion is to prevent us from doing that directly, which they allow we can accomplish circuitously; for they say we must proceed by action on the judgment, and have' execution in the second suit. This is contrary to the settled principle, that circuity and multiplicity of actions are abhorred in the law.

      Henry, in reply.
    The doctrine contended for by the plaintiff, would go to shut out, from a defendant, any right of set-off. Suppose a man discharged; in the course of fair dealing, he, by services, or other means, pays a part of the debt; if he is to be taken on the original judgment, he is excluded from showing perhaps a full satisfaction, till he applies to the court for relief, and during that period is deprived of his liberty.
   Per Curiam.

In Brantingham's .Case we certainly did depart from the English practice. "We there allowed, on a rule to show cause, the being charged in execu[*517] tian subsequent *to notice of the application, to be shown as a reason for denying the supersedeas. The court proceeded there on the idea, that the statute gave the plaintiff a right of election to have execution against the body, or the goods; and that he was not obliged to manifest this election till called on. The present case is not of that description; that statute was only to prevent double executions. The plaintiff has elected to relinquish the person of his debtor, who, having been once actually superseded, must continue so, and the plaintiff shall never have liberty again to resort to his first judgment. Let the defendant, therefore, be discharged, but without costs.

Motion granted, without costs.

       See Manhattan Co. v. Smith ante, p. 67,


author: Per Curiam,.

text:
    Coles, Titford and Brooks against Thomson.
    Practice as to commissions. *•
    Boyd moved for judgment, as in case of nonsuit, for not going to trial, on an affidavit, that the cause was at issue in September, 1802, noticed for trial in November following, and had not since been noticed.
    An affidavit contra was read on the part of the plaintiff, stating, that on the 9th of last March a commission issued to London to examine witnesses on his behalf, which had not been returned, but was daily expected.
   Per Curiam,.

In the case of Juhel v. The United Insurance Company, October term, 1801, we held, that three months was a sufficient time (ante, 503, n. (a) for executing and returning a commission arrived in London. In Miller and Graham v. De Peyster and Charlton, January term, 1803, it was decided, that where a plaintiff has delayed his own cause by a commission, and it does not appear that due diligence has been used, the defendant may apply for a rule for nonsuit, and compel the plaintiff to stipulate, (see ante, 7, n. (a) or be nonsuited, as if no commission had issued. In the present case it does not appear that the plaintiff has used due diligence in causing his commission to be executed, as eight months elapsed between suing it out and the sittings. Unless, therefore, he stipulate, the motion must be granted.

Motion granted, nisi.

       See Townsend v. N. Y. Ins. Co., ante, p. 4, note [1].


text:
    Bowne against Hallet.
    If judgment be signed for the whole penalty of a bond not due, but forfeited for non-payment of interest, execution will be stayed on bringing in interest and costs, the judgment standing as security.
   Judgment had been signed for the whole penal-[*518] ty of *a very large bond on account of the breach of condition in non-payment of the interest. On motion of Boyd, for the defendant, the court ordered that execution stay, on payment of interest, and costs, the judgment, however, to stand as a security for the debt.

       See Black. Rep. 706, Marsen v. Touchet, S. P


text:
    Shuter against Hallet.
    After verdict, and certificate of probable cause granted, the court will not order the amount of the sum recovered, to be brought into court.
    A verdict had been obtained, in this cause, against the defendant, on which a case had been made, and a judge’s certificate of probable cause duly granted.

      D. A. Ogden,

    on an affidavit by the plaintiff, stating his fear of losing his debt, from the circumstances of the defendant, moved to have the amount recovered brought into court.

      Pendleton, contra,
    cited Hallet v. Cotton, ante, p. 11, in May term last.
   Per Curiam.

The practice of the court has never been according to the application. It would be often oppressive, and amount to a denial of right, as the defendant may not be able to comply with the condition, yet have a complete defence to the suit.

Motion denied.


text:
    The People against Freer.
    The intent of a publication will not justify it, if it be, in the opinion of the court, contempt against the court.
    ■The defendant being brought into court, Kent, J., thus delivered their opinion.
    The defendant is brought before the court, for publishing paragraphs in the Ulster Gazette, of August last, containing remarks on the trial of Harry Crosvvell. The paper being laid before the court at the last August term, it appeared to be intended to prejudice and influence the public mind against the court, before which the trial was held, and to intimidate and influence this court in deciding on the motion pending before it, for a new trial in the cause. A rule was accordingly granted, that the defendant show cause, by the ensuing term, why an attachment should not issue against him for a contempt.
   This proceeding was correct and necessary. Publications scandalizing the court, or intending unduly to influence, or overawe their deliberations, are con-tempts which they are ^authorized to punish by [*5191 attachment; and, indeed, it is essential to their dignity of character, their utility and independence, that they should possess and exercise this authority. The defendant did not show cause in person, in pursuance of the rule, but he appeared by attorney, and in an affidavit disavowed any intentional disrespect to the court, or any intent that was contemptuous and unlawful. He stated, that the offensive remarks were produced in the course of an editorial controversy on the subject of Croswell’s trial, with another newspaper, entitled the Plebeian. The court considered this affidavit as not going in justification, but only in excuse of the publication; and that, on such occasions, the defendant ought to appear in proper person, and answer. Accordingly, the rule for an attachment was made absolute. He is now brought in upon attachment, and admits himself the publisher of the remarks in question, and again clears himself by oath of all intentional disrespect or contempt. We have no reason to doubt the truth of the defendant’s affidavit, which exculpates him from any criminal design, and we have nothing to do, under the present process, with the seditious or libellous nature of the publications, any farther than they relate to a charge of contempt against this court. The defendant’s excuse is entitled to its full consideration. On the one hand, we cannot but perceive that the disavowal of any bad intent will not do away with the pernicious tendency or effect of publications reflecting on judicial proceedings which are before us. On the other hand, when the causes which led to the publication are frankly stated, and that the discussion originated in an opposite and rival paper; when we consider the irritation which these publications must have prod uced, and the unguarded license with which all questions of general concern have been usually treated in our 'public prints, we think the present case, under all its circumstances, does not require any serious animadversions. When a case is made out, in which there appears sufficient evidence of an intentional contempt, we should deem it our indispensable duty to inflict a punishment strong and exemplary. But, we trust, the notice we take of [*520] the present case will *answer all the ends of justice, by serving as a sufficient warning to the defendant and others, not to presume to use language which must be understood as reflecting upon, or threatening the court in respect to questions then under investigation. The judgment of the court, therefore, is, that the defendant pay a fine of ten dollars, and stand committed till it be paid.

       Therefore a good intent would not be a justification, ut semb.


text:
    B. M. Mumford and G. S. Mumford against Smith.
    If the facts given in evidence manifestly show a want of seaworthiness, and a jury find against them, the court will set aside the verdict, notwithstanding the jury, at the time of giving it in, declare they have rested their decision upon the whole matter in evidence.
    This was an action on a policy of assurance on the cargo of the Sloop Mary, consisting of flour and corn, valued at 6,720 dollars, of which 3,220 dollars were underwritten by the defendant, at a premium of 9 per cent, from New York to Kingston, in the island of Jamaica. The claim was for a total loss by by the perils of the sea.
    On the trial, which was before Mr. Justice Radcliff.¡ on the 23d of November, 1803, at the sittings in New York, it appeared from the evidence, that the following were the circumstances of the case:
    The Mary was constructed in 1795, of oak of the best Quality, and faithfully built in every particular. When off the stocks, she was first employed as a packet between New London and New York. After this, she made several voyages to the southward and the West Indies. In 1798 she was raised, not on account of any decay, but to render her more burdensome. At this time she appeared stout and strong. New top timbers were put in. Some of her beams, and other pieces of her timbers were of good chesnut. Her plank all of white oak, except her decks. In 1800 she was graved and caulked. She then appeared sound, strong and tight; so much so, in the opinion of one witness, that he offered for her 2,000 dollars. She sailed on the voyage insured, but was leaky from the time of leaving Sandy Hook. On the 11th of August, 1800, she met with heavy gales and severe weather, in consequence of which she suffered much injury and was rendered very leaky, making so much water that it was with difficulty she could be kept free. This compelled her to bear [*521] *away to the nearest port to refit, and on the 15th of the same month she put into Hamilton, in the island of Bermuda. After unloading the cargo a survey was had upon her. She was bored by the surveyors in several places, and adjudged seaworthy; they even declared they had scarcely ever examined a tighter or stauncher vessel. Upon a report being made to this effect, her repairs were commenced. In the course of their prosecution one of the caulkers struck his iron into a plank on the starboard quarter and found it so rotten as to be unable to hold oakum. This induced a further examination round that spot, when four or five other timbers were discovered to be considerably decayed. Two others also, on the larboard quarter, appeared somewhat unsound. But those amidships, on both sides, were perfectly good. On this the captain procured a second survey to be held, when the same surveyors, after investigating her quarters, immediately pronounced her unfit for sea, observing that her starboard quarter alone was sufficient to condemn her. No other parts, except her quarters, were examined; and, according to the mate’s testimony, (on -which, as to the situation of the vessel in Bermuda, the preceding facts were disclosed,) she might have been refitted without much expense. He added, that he would have been willing, after very little repairs, to have sailed in her to any part of the world. In sails, &c. she was well found.
    The survey itself, dated the 2d of September, 1800, stated that a plank being taken off on both sides of the sloop’s waist, not one top timber was sound; on the contrary, they were generally rotten that she could not have been made fit for sea, without renewing the whole of her sides, above the wales; that this would have been attended with a very heavy expense, and perhaps as much as she would sell for when done; that the other parts of her. hull appeared sound. Nor was there any fault in her masts or spars; yet her sails and rigging were indifferent; having been much worn.
    The surveyors, who were admitted to be men of character, when examined under a commission issued . . for that purpose, ^confirmed the facts contained in [*522] the report, and they were further corroborated by ' -the agent of the vessel.
    . It was acknowledged that the Mary, previous to her sailing, had, in March, 1800, been hove down tq get at her keel, but her upper works were not then examined, nor were her timbers bored. At that time one witness had offered 2,000 dollars for her, considering her staunch and tight. After the survey she sold for only 34 pounds 10 shillings, and was purchased by one. of the surveyors, who however, never put her into service, but broke her up as not worth repairing. ‘ .
    It appeared that in 1800 there was but little intercourse between Bermuda and Kingston. During the summer of that year, no neutral vessel could, .have been procured tq go from thence to Jamaica. British bottoms might-have been had at an enormous freight, and insurance was also immensely high." Workmen, too, were difficult to be obtained.
    It. was admitted the cargo did not sustain a damage amounting to an average, the injury being less than-5 per cent.
    On the trial the counsel for the defendant insisted the plaintiff was not entitled to recover for these reasons:
    1st. That the vessel was not seaworthy.
    2d. That if seaworthy and reparable at less than half her value, she ought to have been repaired, and have prosecuted her voyage.
    3d. That if irreparable, another vessel should have been procured,, and the cargo taken to thé port • of destination;

      4th. That the damage was less than an average.
    The judge charged, that if the witnesses examined at Bermuda, and the witnesses examined on the part of the defendant in New York, were to be believed, (and their characters were admitted to be respectable,) the verdict should be for the plaintiffs for the premium only, on account of the unseaworthiness of the vessel. That if the damage sustained by the vessel, during the voyage, was repairable at less than half her value, the master should have repaired her, and proceeded to Kingston with the cargo, and on this ground the verdict should be for the defendant, there being no average.
    That, upon the first point, the weight of evi[*523] dence was *with the defendant, if the testimony taken under the commission and here on his part, was to be credited. That on the second point, he was strongly inclined to think the evidence in favor of the defendant.
    Upon this the jury found a verdict for the plaintiffs for' a total loss, and gave the following reasons:
    1st. That they considered the vessel seaworthy.
    2d. That it would have cost more than half the value of the vessel to have repaird her at Bermuda, taking into view her whole condition; but as to the quantum, of injury sustained by the perils of the sea separately, they give no opinion, resting their verdict upon the whole matter.
    These explanations making, by agreement, a part of the case, a motion was made to set aside the verdict, as contrary to evidence.
    The same points, made by the defendant at the time of trial, were now again insisted on; but as the decision of the court went totally on the weight of evidence as to seaworthiness, it is unnecessary to do more than state the decision itself, which was delivered by
   Livingston, J.

It is conceded that the right to recover cannot exist, unless the vessel, at the time of sailing on the voyage insured, was seaworthy; that her not being so will affect as well an innocent shipper of goods as the owner of the vessel. This is certainly so, and however hard the law may bear on persons of this description, the underwriter is entitled to the full benefit of it, and ought not to be held to payment when this implied warranty has been violated. Whether such" has been the case is principally a question of fact, and we would not willingly disturb a verdict given against an assurer of goods on a defence of this kind, where there had been a contrariety of testimony, or where the proofs were nearly in equilibria; perhaps not, unless their decision was most manifestly against the whole bf the evidence: such we think is the case here. No one who reads the testimony can hesitate in saying that the breaking up of this voyage was not occasioned by any one of the perils insured against. The Mary must, then, either not have been seaworthy when she left NTew-York, or so far decayed as to require ^repairs at an inter- [*524] mediate stage of the voyage, which it was either impracticable to give her, or which would have cost more than she would, when repaired, have sold for. In either ease the defendants are not liable. The mate does not state .particularly what injury she received from the gales she encountered, except that of making more water, for she leaked when she left the Hook; this induced the master to bear away. On her arrival at Bermuda, she is thoroughly examined and found to be in a most decayed state. This rottenness in her timbers, it is certain, could not have taken place in so short a voyage, but must have existed when she left New-York. If we give no credit to surveys(a) of this kind, which, besides being ex parte, are too easily, and sometimes fraudulently, procured, we must believe the surveyors when examined under our own commission. They bear the character of respectable men, and the abandoned state of the vessel after her condemnation and purchase, is a great proof that they acted with integrity and good faith. Nothing to the contrary should be inferred from one of them becoming a purchaser. This he could not foresee would be the case in a sale at auction, and at any rate it does not appear that he made much by the bargain. The agent is also a strong witness on the same side. To all this nothing is opposed but an opinion of the mate, that she might have been repaired, and proof that the Mary was well built, and once a strong vessel. A carpenter repaired her previous to her sailing on her last voyage, but did not examine her upper works, or bore her timbers. Now all this may be true, and yet it does not, in any degree, derogate from the credit due to the witness^ who last examined her; who were in a situation to form a correct opinion, and who pursued the best and only means of coming at an accurate conclusion. It must always be difficult •te determine, with certainty, what portion of the injury is occasioned by latent defects, and what by perils of the sea ; but here it is sufficient to say, that the injuries which required repairing at Bermuda, and produced a termination of the voyage there, could not have arisen from any accident insured against, because it is expressly stated, by the witnesses, that these repairs were rendered neces[*525] sary by' the imperfect condition *of the timbers; not by her leaky condition, which was the only effect of the weather she met with. If no further defect had been discovered but a leak, this could have been repaired, and the vessel would soon have pursued her route. Our opinion is, that this is a verdict palpably against evidence, which established, beyond doubt, the innavigability " of the vessel, and that a new trial must, therefore, be had, on the payment of costs by the defendant. It is ol course unnecessary to decide the other point made in thi* cause,

New trial.

       See ante, p. 25, note (a).

         As they are, in general, mere reports of the state of the vessel, not given under the solemnity of an oath, and «8 parts, Lord Kenyon ruled they were not evidence of any thing but the fact of condemnation; Wright v. Barnard, 2 Esp. Rep. 700, and in The Mar. Ins. Co. v. Wilson, 3 Cranch, 187”, their conclusiveness on the state of the vessel seems doubted.

       See Dow v. Smith, ante, 34.