author: Thompson, J.,

text:
    Jackson ex dem. Putnam and others, against Bowen.
    Parol testimony cannot be received to show that a deed, stating a course for 36 chains, was intended to express 29. An adverse pedis possessio for 20 years and upwards, with a claim of title in other lands, in right of that pedis possessio, which lands are part of the lot on which the pedis possessio is taken, is a bar to a recovery in ejectment.
    Ejectment for lands situated in Johnstown, in the county of Montgomery, tried there at the last circuit, before Mr. Justice Thompson.

      The lessors of the plaintiff, and the defendant also, derived their titles under the will of Victor Putnam, their grandfather. He had devised in severalty, 100 acres of undivided land to each of his children, and the overplus to he divided among his four sons.
    Johannes, the father of the lessors of the plaintiff was one of the children, and Mary Bowen, the mother of the defendant was another.
    By a deed of partition, reciting the will, the 100 acres devised to Mary were set out, and the residue of the patent apportioned among the four sons.
    The north and south lines of Mary and Johannes were the same; the dispute was respecting the east and west ^boundaries. If the lines and courses were [*359] run according to the deed of partition, the lands in controversy would fall within the limits of the plaintiff’s division, but Mary Bowen would not then have her 100 acres. If, on the other hand, the acknowledgments of the ancestor of the lessors and themselves, together with a claim of right, hut not apedispossessio of the whole, were to prevail, the defendant would be entitled.
    On the trial, it was attempted to prove, by paroi testimony, that the partition deed, in giving a north course on the east side of the lot of the lessors, for 36 chains from the southern line, was a mistake, and that it ought to have been extended only 29 chains; in which case, by running the line west to the common norlh and south boundary, the right of the defendant would be established, in conformity to the several quantities of land, the will and paitition deed purported to be the right of the various claimants under them, and also in strict coincidence with known landmarks.

      The judge, however, overruled the testimony, as contradictory, and not explaining the deed.
    Upon this, and the testimony adduced, which is set forth, the jury found for the plaintiff.
    A motion was now made to set aside the verdict, as contrary to evidence and law, and also on account of the misdirection of the judge to grant a new trial.
    Cady, for the defendant,
    to show the mistake in'the partition deed, ingeniously located the 100 acres devised" to Mary Bowen, and the quantity to which the lessors of- the plaintiff would, under that, and the will of Victor Putnam, be entitled; and this could not be done, but by running the north and south lines on the eastern boundary of the plaintiff, 29 instead of 36 chains, he contended that the deed was felo de se, unless so explained. He contended also, that the action was not maintainable, as there had been an adverse claim of the whole lot, accompanied with an actual possession of part, in right of the title to the whole, and adverse to all others.
    *Fara Veckten, contra,
    insisted on the admissibility of the paroi evidence to do away the words of the deed, and that a purchase might be presumed of any extra quantity. He strongly urged the impropriety and danger of extending the effect of adverse possession beyond the land actually enclosed.

         There is not any rule more universally acknowledged than that by which it is laid down, that paroi evidence shall not be given to control or to contradict, to enlarge or to abridge, any instrument in writing, though it may be adduced to explain; and there is-scarcely any which, in its application, has created more discussion. On the first branch of the rule it has been decided, that where an ambiguity is patent, arising on the face of the writing, that is, from the very words made use of, paroi testimony shall bo excluded; as whether “lie or they" shall refer to the next antecedent only, or to all preceding; (Cheney's Case, 5 Rep. 68;) or the word “woods,” in a particular of an estate, cover “underwoods.” Jenkinson v, Pepys, 6 Ves. jun. 330. So where the testimony would go to destroy the conclusion of law on a will or deed; as on a devise or deed void in law for uncertainty, to show who or What was meant; (Cheney's Case, ubi sup.;) or that another person than the one named was intended, when there is a person of the name mentioned; (Delmare v. Robello, 1 Ves. jun. 412;) or that au agreement for a lease which did not mention any term, meant, from an advertisement to which it did not refer, a lease for lives. Clinan v. Cooke, 1 Sch. & Lef. 22. So if it be to destroy the legal operation or construction of a deed or other instrument; as that by “heirs” was meant “heirs of the body;” (Altham’s Case, 8 Rep. 155;) or that a note having no time of payment expressed, was not payable immediately; (Thompson v. Ketcham, 8 Johns. Rep. 189;) or when, without a place of payment, that ic is payable in another place than that from whence dated; (lb. ibid, overruling, in this respect, the same case, 4 Johns. Rep. 285;) or from the declarations of a testator, that a will was made by duress; (Jackson v. Kniffen, 2 Johns. Rep. 31;) or to give, from usage, a construction to, or explanation of¡ the language of a grant or deed not ambiguous or equivocal. Cortelyou v. Van Brandt, 2 Johns. Rep. 357.
      Under the second branch of the rule it has been determined, that paroi evidence cannot be admitted to show that particular lands, embraced by a written contract /or a lease, were agreed to be accepted out of the lease; (Lawson v. Lauda, 1 Dick. 346; Fell v. Chamberlain, 2 Dick. 484;) or that an annuity not redeemable by the grant, was agreed to be so; (Hare v. Sherwood, 1 Ves. jun. 24;) or that an absolute bond was given as an indemnity; (Mease v. Mease, Cowp. 47;) or that there is a mistake in a writ or written instrument; (Fitzhugh v. Runyon, 8 Johns. Rep. 375;) or that an auctioneer had sold, subject too charge, when his printed conditions were, “free of all incumbrances." Gunnis v. Erhart, 1 H. Bl. 289. Under the third branch it has been held, that paroi testimony is inadmissible to prove that a bond given to secure a sum in trust for a wife, was intended to be in bar of dower; (Tinney v. Tinney, 3 Atk. 8;) or from conversations before and at the time of signing an agreement for a lease, at a certain sum, that it was to be clear of taxes; (Rich v. Jackson, 4 Bro. Ch. Cas. 513;) or to supply, even in equity, any defect in an agreement under the statute of frauds; (Binsted v. Coleman, Bunb. 65;) or to prove that a ground rent is to be paid by a tenant, in addition to the sum mentioned as the rent in his lease; (Preston v. Merceau, 2
        BL 1248;) or to show that an agreement in writing to exchange a copper-mill-for the grass of Whiteaere, was intended to give that of Blaelracre also; (Meers v. Ansell, 3 Wils. 215;) or (when there are circumstances of fraud) that besides the money consideration expressed in a deed, there wore others of name and blood; (Clarkson v. Hanway, 2 P. Wms. 258;) or in addition to a valuable as well as good consideration of love and affection, there was a further consideration; (Schermerhorn v. Vaderheyden, 1 Johns. Rep. 159;) or from circumstances, that the sum expressed in a receipt of 25 years old, was for continental money, and, therefore, amounted to less than the value stated; (Roberts and others v. Garnie, 3 Caines' Rep. 14;) or to add anything to an agreement respecting lands, because contrary to both the common and statute law. Patericke v. Powlet, 2 Atk. 383. Under the fourth branch, see Vandervoort v. Col. Ins. Co., 2 Caines’ Rep. 165.
      As to the admissibility of paroi testimony, it has been ruled that it may be resorted to when to explain a latent ambiguity, or one which does not appear on the face of the instrument, but arises from circumstances extrinsic, and yet upholds the writing, as to show who is meant under a devise by the testator to his son John, when he bad two of that name, and thought the elder dead; (Cheney’s Case, 5 Rep. 68; Couden v. Clerk, Hob. 32;) so where the bequest is of a trunk, and the testator has left three; (Pendleton v. Grant, 2 Vern. 511,) so as to ascertain the real person intended, though misnamed, there being no other to answer the description; (Hodgson and Caldicott v. Hodgson and Fitch, 2 Vern. 598;) or that the person intended woe called by the testator as named, there being no other living of that name; (Beaumont v. Fell, 2 P. Wms. 141; Parsons v. Parsons, 1 Ves. jun. 266;) for in all these cases the evidence coincides with, and supports, the instrument, therefore paroi testimony may be adduced to explain a contract according to the legal operation of the deed, though in abridgment of its general terms; (Schuyler v. Ross, 2 Caines’ Rep. 202;) or to show what freight was agreed on, where a charter-party expresses none; (Foot v. Salway, 2 Ch. Cas. 142 ;) or to prove a collateral fact which explains the nature of an equivocal instrument; as that an apprentice fee was given, and, therefore, the deed intended to be' "articles of apprenticeship, though the word “ apprentice” waa not'Used, and it might "otherwise have stood as a contract for hire; (The King v. Laindon, 3 D. & E. 379;) or that provisions stated, in a written receipt, to • have been received “for account of the plaintiff,” from the master of a vessel, were received to sell" on commission, and not as a purchase; (M'lnstry v. Pearsall, 3 Johns Rep. 319 ;) or that goods mentioned in a bill of parcels to have-been bought of I. & D. were not-their joint property, but part the sole property of D. and the residue the sole property of 1, -who had authority to sell the part of D.; (Harris v. Johnston, 3 Cranch, 311;) or to show the extension of time for performing a written contract not under seal; (and as it is presumed not then broken, Keating v. Price, 1 Johns. Cases, 22,) or whether an advance of 5 per cent, agreed in writing to "be paid on so many shares of bank stock, was an advance on the amount of the shares, or on the sum paid in on them; (Cole v. Wendell, 8 Johns. Rep. 116;) or that the money consideration in a deed was greater than that expressed; (The King v. Scammondon, 3 D. & E. 474;) or, as it is there said, that there were other considerations. In cases of fraud, paroi testimony is always received; ns to show that the natural love and affection stated as a further consideration, was no part of it; (Filmer v. Gott, 7 Bro. Par. Cas. 70;) or that a will was executed under duress. Jackson v. Kniffen, 2 Johns. Rep. 31. See further on this subject in the index of Sugden’s Law of Vendors, tit. “ Parol Evidence.” Rash-field v. Careless, 2 P. Wms. 158, and the cases in the note there, by Mr. Coxe.

       A possession, when relied on as a bar, must be adverse to the title which is claimed; therefore, when taken during a particular estate, it will not run against those in remainder. Jackson v. Schoonmaker, 4 Johns. Rep. 390. On the same principle, where the court of chancery settles the rights of claimants to land by directing a partition, an adverse possession, as among themselves, can begin only from the time of the decree. Jackson v. Bradt, 2 Caines’ Rep. 169. To constitute an adverse possession, it must be adverse at the time of its commencement, and so continue for 20 years without interruption; (Bradt v. Ogden, 1 Johns. Rep. 156;) consequently no possession of another can be set up by a person coming in under him, which he, under whom such person comes in, could not himself set up; (Jackson v. Harder, 4 Johns. Rep. 202 ;) it follows, therefore, that as a squatter comes in under the title of the true owner, no person, deriving his possession from a squatter, can set it up as adverse to the rightful proprietor. Where the deeds upon which a defence in ejectment is rested, prove void, and the defendant has recourse to adverse possession alone, lie must show it by a real, substantial enclosure, an actual occupancy, a pedis possessio, which is definite, positive and notorious. A mere possession fence is not enough. Jackson v. Schoomnaker, 2 Johns. Rep. 230. Observe the distinction where the possession is by claim under a deed conveying a right, (as in the text,) and under which possession is taken. An adverse possession of above 40 years, according to an acknowledged but erroneous line, is a completo bar; (Jackson v. Dysling, 2 Caines’ Rep. 198:) so if according to an erroneous survey and partition thereon. Jackson v. Hasbrouck, 3 Johns. Rep. 331, A possession of 25 years, with color of title, though by the maps and deeds it be according to an erroneous line, gives a complete title against all the world; (Stuyvesant v. Tompkins & Dunham, 9 Johns. Rep. 61;) even against a defendant who has recovered by default in a former suit, the same premises from the plaintiff, though both parties derive title under the same deed, and a recent survey show the location incorrect; (Jackson v. Dieffendorff & Zoller, 3 Johns. Rep. 269;) for alter a possession of above 25 years, (the case is 40,) according to a map and survey, the correctness of the locations cannot be disputed by the parties, or those claiming under them ; (Jackson v. Vedder, 3 Johns. Rep. 8;) but a possession of 8 years, though according to a line designated by the lessor of the plaintiff, is no bar against a correct location made 40 years antecedently Jackson v. Douglas, 8 Johns. Rep. 367.

   Thompson, J.,

delivered the opinion of the court. An application is made for a new trial, on two grounds.

1st. That the verdict was against evidence; and,

2d. That the court improperly precluded the defendant from showing that there was a mistake in the partition deed, under which the parties respectively claimed, by which the lessors of the plaintiff had more land than was intended to have been conveyed.

From the testimony, as stated in the case, it appears that Johannes Putnam, the father of the lessors of the plaintiff, and Mary Bowen, the mother of the defendant, were brother and sister, and children to Victor Putnam, under whose will, bearing date the 5th of July, 1755, they derived title. That on the 19th day of September, 1765, the children of Victor Putnam executed a partition deed, whereby lot ISTo. 1 was conveyed to Johannes Putnam, father to the lessors of the plaintiff, and lot No. 8 to Mary Bowen, mother to the defendant; and the question between the parties is, where is the line of division between the two lots ? The plaintiff having made out a title to lot No. 1, and the defendant to lot No. 8, James Lansing, a surveyor, and witness on the part of .the plaintiff, testified that he had run the western and northern lines of lot No. 1, according to the partition deed: and that some of the premises in question, according to such survey, were included in that lot.

Jacob Bees, a witness on the part of the defendant, swore he was 55 years old, and that as long ago as he could remember, Mary Bowen was in possession of the land now held by the defendant, and that she died in posses-[*361] sion; *she had some land enclosed in fence down as far south as the road; she used to live 4 or 500 paces south of the road, but that just before the war. she moved down close to the north side of the highway. That about 14 or 15 years ago, Johannes Putnam showed him his west line, and told him he began at the Mohawk river, and ran northerly nearly to the highway, to a pine tree, and that the land north of that was his sister’s, Mary Bowen. That when Johannes showed him this line, Mary was in possession of the land north of the road. That about seven or eight years ago, Francis I. Putnam put up a stone near the pine tree shown him by Johannes, and said that was hia corner, and that at this time the defendant was in possession of most of the land on the north side of the road, which he now holds. That the whole of the land now held by the defendant was not cleared or in fence, at the time of Mary Bowen’s death.

Jacob Hall, another witness on the part of the defendant, swore that about 36 years ago, Johannes Putnam told him his land went no further north than the road, and that Mary Bowen owned the land north of the road. That at this time, or shortly after, Mary Bowen lived near the road; she had before lived farther north. Johannes Putnam called * the witness particularly to show him where his line was. It appeared also, by the testimony of Abraham Conyne, that about ten years ago he applied to Francis I. Putnam, to rent him part of a house jthat stood near the road, on the north side; that the said Francis declined hiring it to him, but referred him to the defendant, of whom the witness leased the house for one year; the witness understood that Putnam did not claim north of the road. Lewis Clement also testified, that about seven or eight years ago, he assisted Francis. I. Putnam in making a fence between these lots on the south side of the road ; that the defendant.came to them and inquired of Putnam if he was making the fence on the line, to which he answered that he was, as it had been shown by Jacob Rees and the defendant. It appeared also that Mary Brown died about 15 years ago.'

*On the part of the plaintiff it appeared, that [*362] part of the premises in question, adjoining the road, were unimproved at the expiration of the war. It also appeared that about six or seven years ago, the lessors of the plaintiff claimed the premises, by threatening to dispossess one Peter Lawrence, who afterwards took a lease under them. But Lawrence had the possession from Jacob Rees, who held under Abraham Conyne, who, it appears, had hired it from the defendant.

The partition deed between the ancestors of the parties bears date in the year 1765, wherein lot Ho. 1 claimed by the lessors of the plaintiff, is described as beginning at the Mohawk river, and running a northerly course 36 chains, describing no monument at the termination of this line. It appears from the testimony of the surveyor, that to extend this line northerly the number of chains given in the deed, and then pursue the other given courses, would include part of the premises in question. But the testimony on the part of the defendant appears to me to be strong and irresistible with respect to the actual possession for a long series of years; and that, in fact, no possession was ever had of the premises by the lessors of the plaintiff, or their father, under that deed. And that, admitting the deed to cover the land, still the plaintiffs, and those under whom they claim, have abandoned it for such a length of time as to preclude them from a recovery, at least ^n this form of action. It is true a man may be mistaken with respect to his title, and, perhaps, ought not to be concluded by his confession, if made under circumstances inducing a suspicion of imposition or ignorance, neither of which appears in this circumstance, and when acquiesced in for the length of time, as in -the present case, he ought to be concluded. It appears that the premises lay north of, and adjoining to, the highway, which is the division line between the parties, according to their present possessions: the lands of the plaintiff laying to the south, and those of the defendant to the north of this road. Two witnesses on the part of the defendant testify, that as much as 36 years ago, which must have been very shortly after the partition, Mary Bowen was [*363] in the possession *of the premises, the possession of Johannes Putnam going no further north than the highway; and it appears by the testimony of one witness, that as far back as the period above mentioned, Johannes Putnam showed him the line between him and his sister Mary, and declared to him that his land went no farther north than to the road; that the land north of the road was his sister Mary’s. The same declaration was made to another witness about 14 or 15 years ago, and since the .death of Johannes Putnam, the lessors of the plaintiff have repeatedly recognized the same line, both by their declarations and acts,-and never showed any dissatisfaction until about six or seven years ago. Thus it is clear and conclusive, from the testimony, that the defendant and Mary Bowen, his mother, under whom he claims, have been in possession of the premises for at least 36 years, claiming them and using them as their own, adversely to any other claim, and with such repeated recognitions by the lessors of the plaintiff and their father, of the right of Mary Bowen, as to show conclusively that they disclaimed having any right or title to the premises, which is sufficient to. rebut every presumption that Mary Bowen held under them. The premises being held under such circumstances, for such a length of time, is, we think, sufficient to protect the possession against this action.

We are of opinion, therefore, that the verdict is against evidence, and that a new trial ought to be granted.

Being in favor of a new trial, it would be unnecessary to give an opinion on the other question, did the court entertain the least doubt on the subject. The plaintiff’s deed gives 36 chains on the first line; the defendant contended it ought only to have been 29 chains, and the testimony offered and overruled, was to prove that fact: this was not .to explain any ambiguity, but was directly contradictory to the deed, and manifestly inadmissible.

       See Cameron v. Irwin, 5 Hill, 272; Clark v. Wethey, 19 Wend: 320* Fuller v. Acker, 1 Hill, 473; Jackson v. Hart, 12 J. R. 77; Jackson v. Cray, 1? Id. 427; Fitzburgh v. Rumyon, 8 J. R. 375; Jackson v Britton., 4 Wend. 507


source: Caselaw Access Project

author:
      Livingston, J. Lewis, Ch. J.
      Livingston, J., Lewis, Ch. J.

license: Public Domain

text:
    Peyton against Hallett. The Same against Delafield.
    A warranty of being '‘the property of an American citizen,” is proved by reputation, employ and domicil. Interest in a vessel, by a person who saw the original register, in .the name of the owner, when she was about to sail on the voyage insured. Interest in a cargo, by knowing the articles bought by the plaintiff, and seeing them go on board. A witness who has an order to be paid out of the sum to be recovered in a suit, drawn upon the agent who is to receive such sum, is not a competent witness, though tlio order is not accepted. To prove an abandonment,' though made in writing, paroi evidence is admissible: and it is not necessary to give notice to produce the letter of abandonment, to enable to show the original of which it was a copy.
    ■ These were actions on two policies of insurance, one on the body, the other on the cargo, of the sloop Buby, *on a voyage from Charleston to the Mantanzas, in [*364] Cuba, “ warranted the property of an American citizen.”

      On the voyage, the vessel was taken and carried into New Providence, where she, on the 9th of December, 1801, was acquitted, but her cargo condemned as lawful prize The abandonments were made the 7th of January, 1802.
    The plaintiff, to prove his interest in the subjects of the insurance, called one George White, who was objected to by the defendant’s counsel as incompetent, on account of an interest in the event of the suits. It appeared that White, who was sworn on his voir dire, had received, for a debt due to him from the plaintiff, an order on his agent, to be paid out of the sums to be recovered in these actions, but the agent had not accepted the order, though he promised the debt should be paid out of what he might receive, and the witness expected to be paid accordingly. White, however, further swore, that as his right did not depend on the event of the suit, he should look to Peyton for payment whether he recovered or not. On. this his testimony was admitted, and the plaintiff went on to prove his interest in the vessel, by the evidence of White, which was again opposed, but overruled.
    White then testified that he had seen a register of the vessel, in the name of the plaintiff, and that she sailed under it, on the voyage insured. In corroboration of this the proceedings in the vice admiralty, under seal of the court, were produced, setting forth a copy of the register in due form. It also recited a bill of lading, in which freight was mentioned to be payable in the following manner : “ as customary no. primage and average accustomed,'''

    The interest in the cargo was established by the same witness, who swore to having attended the plaintiff to select the articles purchased, some of which he saw on the wharf where the vessel lay, and going on board. The counsel for the plaintiff, as additional proof, adduced bills of parcels of the articles specified in the invoice, and made *out by the vendors, whose hand-writ- [*365] ing he offered to prove ; but this latter testimony was rejected. (See Russel v. Boehme, 2 Stra. 1127, -contra.)
    No other reason than the capture was offered for the non-production of the vessel’s register and bill of lading.
    To substantiate the citizenship of Peyton, a copy of record of his naturalization was offered, which being objected to as informal, was withdrawn; and the counsel for the plaintiff then relied on the testimony of White, who swore that he had known Peyton to have resided in Charleston four or five years, but how much longer he could not tell: that he had known him to command vessels registered as American, sailing under the American flag, and carrying ten or twelve guns; but that he had heard the plaintiff say he was born in Ireland; though he had also heard him say he was naturalized in 1787, and that he was reputed an American citizen.
    To establish the abandonment, the agent of the plaintiff was adduced, who deposed, that on the 7th of January, 1802, he left letters of abandonment (a copy of which he at the same time offered) at the office of the broker who effected the insurance, to be delivered to all the underwriters on the vessel and cargo, but whether they were delivered or not, he could not say. The clerk, however, of the broker, certified that if the letters were left, they must, from the regular course of business in the office, have been delivered, though he himself remembered nothing of the transaction.
    Notice to produce the letter of abandonment had never been given to the defendants.
    On this a nonsuit was moved for, it being contended that the plaintiff had not shown enough to entitle him to recover. The judge who tried the cause seemed to think the citizenship not sufficiently established, but that a verdict might be taken, and this, together with the other points, reserved by the defendant.
    The j ury accordingly found for the plaintiff in both suits, subject, on a case to be made by the defendant, to the opinion of the court, whether a nonsuit should be entered, or a new trial granted.
    *Pendleton, for the defendants,
    made the following points:
    1st. That George White was not a competent witness.
    2d. That the vessel being American, paroi proof of ownership was not admissible.

    3d. That paroi proof of the abandonment was not admissible, the abandonment having been made in writing, and notice to produce it not having been given.
    4th. That there was no proof of the property being that of a citizen of the United States.
    5th. That admitting these points to be against him, the plaintiff could not recover on the vessel, as she was acquitted at New Providence the 9th of December, 1801, and the abandonment not made till the 7th day of January following.
    On the first point, he said, it was only necessary to read the case ; by this it appeared that White’s interest was direct. He was to be paid out of the fund. Gould any man doubt that he who is to be paid out of a fund, is interested in creating that fund ? In Powell v. Gordon, 2 Esp. Rep. 735, having a power of attorney to receive the money for which the suit was brought, excluded the holder of it from being a witness. It is true, the order was not obligatory on the agent, but still it was a lien on the fund. A mortgage is but a collateral security for a debt; the mortgagee, however, is not, in an ejectment, a witness for his mortgagor. It is no answer to this to say, that here the matter was but a .chose in action, for, of that chose in action the order made White an assignee pro tanto, which a court of equity would notice. Row v. Dawson, 1 Yes. sen. 331. So in Yates v. Groves, 1 Yes. jun. 280, the holder of an order not accepted, but verbally promised to be paid out of the fund, was held to have a lien on the' fund.. White, therefore, had a direct interest.
    On the next point he argued, there could be no doubt. Matter of record can be proved only by record. By the 9th section of the register act of the 31st December, 1792, it is enacted, that “ The several matters herein before required, having been complied With, in order to the registering of any ship or vessel, the' collector of the district, *con)prehending the port to which she [*367] shall belong, shall make and keep'in some proper book, A RECORD or registry thereof, and shall grant an abstract or certificate of such record of • the registry, as nearly as may be in the form following,” &c. We see thus, that by an act of the general government, the register of a vessel is made a matter of record, and, therefore, its contents should be proved by an exemplified copy, and not by paroi.
    Parol proof is equally inadmissible in cases of abandonment, where that abandonment has been made in writing, because the writing is to speak for itself, and therefore, notice to produce is always given. Many of the first practitioners at this bar have suffered, nonsuits on this very point, merely on account of notice not having been given. As tc the proof of citizenship, there is none. The very evidence called establishes that the plaintiff was born in Ireland, and the English courts of admiralty have decided that an English subject cannot trade with an enemy, to the port of whom the vessel in question was bound. So sensible was .the plaintiff’s counsel of the inadequacy of testimony on this point, that he almost abandoned it by withdrawing what was called a certificate of naturalization.
    The last argument on which we mean to rely, is, that the abandonment was clearly out of season. The sentence was on the 9th of December, and the abandonment not till the 7th of January. The usual passage from Nassau to New York is 8 or 10 days; here nearly 80 elapsedand at least as to the vessel, it was too late, for that was acquitted ; and it may well be supposed the news of her liberation arrived with the account of the capture.

      Caines, contra.
    Against retaining the verdicts, which have been given in our favor, a long list of five objections has been urged. First, that White was not a competent witness,  and for this the reason assigned is, that he had an interest in the event of the suits. To judge whether this is so or not, it will be necessary to advert to the species of interest which he possessed. A recurrence to [*368] *the case will evince it to be no more -than an order to be paid out of the money that might be recovered under the policies on which we now proceed. This order was not even accepted, and so little did White rely upon it, so little did he feel himself concluded by the result of these actions, that he swore his right to look to the plaintiff did not depend on the suit; and, whether a recovery was had or not, he looked to Peyton for payment of his demand. With respect to witnesses, the courts have, especially of late days, confined the objections to their credulity rather than to their competence, notwithstanding Watts Case, (Hard. 831,) this has long been established. It is not a decision of modern times; we can trace it back to "the earliest periods of law. In Gunston v. Downs, 2 Boll. Abr. 685, pi. 3, it is laid down, that if three persons join in one deposition, and three separate indictments are praferred against them, each is a competent witness, the one for the other.”

      Gaines.

    Every interest, to render a witness incompetent, must be direct, and not circuitous. Bent v. Baker, 3 B. & E. 27. Your honors have already decided this point. In Baker and Rowlston v. B. and S. Arnold, (Ante, 258, and see what Kent J. says, p. 276,) an endorser of a note was held to be a good witness to prove the endorsement made after the note was due, though by his testimony he might let himself into all the equities subsisting between him and the maker. The reason of this is obvious: a possible advantage cannot exclude; to render incompetent, the benefit must be inevitable. When it is not so, it affects only the credit of the witness, and on that, like all other matters of credit, it is for a jury to determine. If they think the witness worthy of belief, they receive; if not, they reject his testimony. On these principles, therefore, it has been ruled, that where a man has laid a bet on the event of a suit, he is still a competent witness. Barlow v. Vowel, Skinn. 586; George v. Pearce, cited by Grose, J. in Baker v. Bent, 3 B. & E. 37. Kay, if the wager be [*369] that he will convict the defendant on an indictment the law is the same. Rex v. Fox, 1 Stra. 652, and per Lord Mansfield, in Da Costa v. Jones, Oowp. 736. So a creditor was allowed to prove that his debtor did not come within a species of insolvent law called the mint act. Narcott v. Orcott, 1 Stra. 650. Surely in this last case there was as great an interest as in the present; for, if the creditor established his debtor to be out of the provisions of the act, he had an immediate recourse against the person of the insolvent, and so came directly within the event of the suit. But, as it was only possible that the result might terminate to the advantage of the witness, he was adjudged to be competent. It is expressly laid down in Bull M. P. 288, 279, 290, that a remote interest can never exclude. It is not in one or two places alone that this doctrine is to be found ; it is scattered and diffused through every portion of the law. A surety for an administrator, notwithstanding'he may become liable on his bond for the faithful discharge of the administration, is a good witness to prove a tender in a suit to recover a debt due from the intestate, Carter v. Pearce, 1 D. & E. 163. It is, from these authorities, evident, therefore, that a possibility of interest goes not to the competence, but to the credit of a witness. Even this, to men of liberal minds, it would hardly touch. The objection, however, comes from the parties who now make it, in a manner peculiarly ungracious. They first create the necessity of borrowing, and then use that necessity as a means to avoid paying. From whom is a man, kept out of his right, to borrow; if not from him who is conusant of that right ? There is not, to be sure, any express decision exactly in point, but so far as a dictum of the whole court of Icing’s bench can operate in our favor, we have it now to advance. In the case last cited, (Carter v. Pearce,) their lordships, una voce, said, “ if a creditor of the administrator had been offered as a witness, there could have been no objection to his being received.” This, then, goes the whole length of our positions. Every creditor has an interest in the event of his debtor’s suit; but as it is such a one as is remote, and merely possible, it cannot affect his Competence. Were the law to be otherwise, it [*370] would, in a mercantile country, be hardly possible to substantiate, by oral testimony, any species of debt whatsoever. And we find that in proportion as commerce has extended, the rigor of ancient rules respecting interest in witnesses has been constantly relaxed.

       A bill of lading verified by the captain is proof of interest in a cargo. M1 Andrew v. Bell, 1 Esp. Rep. 173. So, though dated after the loss of it took place, while the vessel was loading. Graham v. Penn. Ins. Co., 2 Cond. Marsh. 709

         To prove the amount of a loss, an account of the sales of an adventure Wider the hand of the factor, held, on proving his hand-writing, to be good evidence. Riche and Richards v. Broadfield, 1 Dall. 16. So an invoice sent to the plaintiff. Graham v. Penn. Ins. Co., 2 Cond. Marsh. 709.

         Exercising acts of ownership in directing the loading, &c., of a ship, or paying the people, (Amery v. Rodgers, 1 Esp. Rep. 207,) or ordering and paying for her stores, &c.; (Thomas v. Foyle, 5 Esp. Rep. 89;) so her register, or the affidavit of a co-defendant (returned non est) for obtaining the register, are evidence ci interest in her. Woods v. Courier et al, 1 Dall. ML

        а) That was a case between the assignees of a bankrupt, and the holder of an order drawn by the bankrupt, on money due him on an exchequer warrant, and that order lodged with the teller. This was held an assignment against the assignees who represented their bankrupt.

       That also was a case against assignees, to declare a lien on the money in their hands.

         That no person shall be permitted to testify for himself, and that the law regards immediate and not remote consequences, seem to be the two principles of our jurisprudence by which the incompetency of witnesses is determined. The rule to be drawn from them has not been always laid down in exactly the same terms. The most correct induction appears to be that of Buller, J., in Bent v. Baker, 3 D. & E. 36. “ Is the witness to gain or lose by the event of the suit?” But this, perhaps, is not sufficiently close, for it leaves undefined the nature of the gain or loss, which, as truly stated by Yates, J., in M‘Leod v. Johnston, (4 Johns. Rep. 129,) must be “vested or certain, and not remote, possible or contingent.” On an analysis of the cases which, however, have their repugnancies, the rule to be extracted may possibly be this: “ Where the legal effect of the verdict will operate to the immediate advantage or disadvantage of a witness, he is incompetent.” Therefore, 1st. Parties to the record, (Gilb. L. Ev. 122,) though guardians, (Clutterbuck v. Lord Huntingtower, 1 Stra. 506,) or prochien ami, (Hopkins v. Neale & Newman, 2 Stra. 1026,) are inadmissible, because liable to costs. So, though mere trustees, and liable only in the first instance, having, by statute, a compensation over; (The King v. Governors, &c. of St. Mary Magdalen, 3 East, 7, overruling, in that point, The King v. Woodlands, 1 D. & E. 261;) or defendants only named in the simul cum, if the plaintiff can prove them guilty by producing the process against them, and showing an ineffectual endeavor to arrest, cannot testify for the other defendants. Reason v. Ewbank, Bull. N. P. 286. 2d. Persons directly interested in the subject matter of the suit, though not parties to the record; as a tenant in tail of a vested remainder expectant on an estate-tail, to testify in support of the title under which he claims; (Smith v. Blackman, 1 Salk. 283;) or a landlord to prove for his tenant a right of common in the lands demised; (Anscomb v. Shore, 1 Campb. 290;) or a commoner the same for his fellow commoner, (Ib. ibid,) if it be under a custom for all; (Hockley v. Lamb, 1 Ld. Raym. 731; Skinn. 174;) or an inhabitant of a town, a right of fishing in all inhabitants. Jacobson v. ibuntain, 2 Johns. Rep. 17 0. The law is the same where the interest is in only a part of the subject matter; as in an action for taking and carrying away a barrel of liquor by the proprietor of the barrel, the owner of the liquor cannot testify for the plaintiff. Gage v. Stewart, 4 Johns. Rep. 293. 3d. When the legal operation of the testimony would be to immediately create or increase a fund on which the witness would have, or has, a direct claim; as a person having a deed from an ancestor which would charge the lands in question in the hands of tire heir, to give evidence in support of the heir’s title; (Tr. per Pais, 386;) or a creditor of a bankrupt to prove him a gamester, and so destroy his right to an allowance under the statute; (Shuttleworth v. Bravo, 1 Stra. 507;) or to establish a petitioning creditor’s debt under a second commission, when he was a creditor under a former, and the bankrupt had, before certificate, promised him payment; (Roberts v. Morgan, 2 Esp. Eep. 736;) or, after proving his debt, to establish a demand for the assignee; (Williams v. Stevens, 2 Gampb. 301;) or a creditor having a demand on an insolvent estate, to establish one for the administrator; (Craig v. Cunddell, 1 Campb. 381;) orto create a new liability to himself; and a fund to answer it; (as in the case in the text;) or to create a fund in discharge of his own liability. M'Leod v. Johnston, 4 Johns. Rep. 126
      4. When it would immediately exonerate the estate or the person of the witness from an existing charge or liability; as an inhabitant having lands rated in a parish or town, to give evidence on a question of settlement, though the land stand rated in the name of another; (The King v. Killerby, 10 East, 292;) or a drawer of. a bill who has received notice to show, in an action against the acceptor, that it was paid; (Humphrey v. Moxon, Peake’s Cas. 52;) or a petitioning creditor, who is bound in a pen alty to prosecute the commission with effect, to support it; (Green v. Jones,
        2 Campb. 411;) or a person shown to be a partner with the defendant, ana as such liable to contribute for the costs, to defeat the action, by proving himself liable alone; (Goodacre v. Breame, Peake’s Cas. 174;) or' a bound bailiff cr deputy, to whom a writ has been delivered, to prove, in an action against a sheriff for not arresting, an endeavor to take; (Powel v. Hord, 1 Stra. 650;) or bail to the sheriff, after an attachment against him ordered to stand as security, to testify on behalf of the defendant; (Piesley v. Von Esch, 2 Esp. Rep. 605;) or a vendor of a chattel, for his vendee, in an action against the latter for taking it away, when the defence goes to the title; (Hermance v. Vernoy, 6 Johns. Rep. 5;) or a grantor with warranty,, against a purchaser of the same land under an execution on a judgment upon a warrant of attorney, signed without the knowledge of the grantor, by his partner, n the names of both; (Swift v. Dean, 6 Johns. Rep. 523;) or a grantor of adjoining lots, to prove their boundaries, in an action between his two grantees; (Jackson v. Hallenbach, 2 Johns. Rep. 394;) or a lessor in support of the title of his lessee; (Smith v. Chambers, & Esp 164;) or a servant in an action for his negligence against his master, for the defendant; (Jarvis v. Hayes, 2 Stra. 1083; Green v. New River Company, 4 D. & E. 589; Miller v. Falconer, 1 Campb. 251; or a journeyman, who has been accustomed to receive money for goods sold, to prove their delivery, in an action by his master; {Adams v. Davis, 3 Esp. Rep. 48;) or a co-trespasser not sued, for the plaintiff, in an action against the other trespassers. Barnard v. Dawson, 2 Campb. 333, note. Qu. ta. for this seems a mere possible interest. See Milward, v. MaUett, 2 Caines’ Rep. 77.
      5th. When the verdict, if contrary to his evidence would render him immediately liable to the party for whom he is called, as a payee of a note given Without consideration, and who has since obtained his certificate under a bankrupt or insolvent law, to testify for the defendant, in an action against him as maker. Mamdrell v. Kennett, 1 Campb. 488, n.
      6th. Where the verdict would be evidence for or against him.
      With respect to husbands and wives, it is now settled in the English courts, that, from motives of public policy, they cannot, in any case, be witnesses for or against the interests of each other; (Davis v. Dinwoody, 4 D. & E. 678;) and for the same reason their testimony is excluded in cases of non-access, as affecting their children born during the marriage. The King v. Luffe, 8 East, 193; The King v. Kea, 11 East, 132. It was formerly held that the incompetence of the wife was confined to cases where the husband was a party to the record; (Baker v. Dixie, Cas. temp. Hardw 264; Mall v. Hill, 2 Stra. 1094;) and oven in such cases if she had acted as his agent, her declarations were good to charge him on the contract she had made; (Anon., 1 Stra. 527;) a fortiori, if he was not a party to the record, though her t<W timony went to make him civilly liable; (Williams v. Johnson, 1 Stra. 504;) so in Virginia, even where she herself has, from the bounty of the plaintifig a claim on his benevolence in the subject matter of the suit. Baring v. Reeder, 1 Hen. & Munf. 154. With us a wife, after the death of her husband, has been held admissible to show that a deed she had executed with him, but which it does not appear she had acknowledged, was antedated. Jackson v. Bard, 4 Johns. Rep. 230. Even in Westminster Hall, if the evidence of the wife go neither to support nor to contravene any interest of the husband, nor to affect him or the children of the marriage, as that of a wife of an executor taking no beneficial interest under a will, she is a good witness to prove it. Bettison v. Bromley, 12 East, 250. The principle, however, of Davis v. Dinvioody (and which, on examination, may, perhaps, be found the correct one) has lately been recognized by Lord Ellenborough, who decided that where the testimony of the wife, though living in a state of separation from her husband, went to show that he, instead of the defendant, was liable to the plaintiff, she was incompetent without a release to the husband. Wright v. Wardle, 2 Camp. 200.
      Eor cases in which the competency of witnesses has been decided, see Milward v. Hallett, 2 Caines’ Rep 77, and the notes there.

       So the contents of a notice of the dishonor of a bill. Ackland v. Pearce Campb. 601.

         Surtees v. Hubbard, 4 Esp. Rep. 203; Phillipson v. Chase, 2 Campb. 111.

         In that case the counterpart signed by the defendant only was allow*" to be given in evidence to prove an apprenticeship to him by a third persos merely because it recited such an indenture.

         Ramsey v. United Ins. Go., Oct. term, 1799, Sup. Court N. T. The warranty of American property held not complied with from the assured’a domicil being in a belligerent country, though it waa admitted lie was an American citizen. MS. Kent, J.

         Therefore, a warranty of a ship as “ American property,” when the owner resides in England, is falsified by that circumstance, though he be in fact an American citizen. So a British subject, domiciled in America, is considered, by the law of nations, as an American citizen. Tabbs v. JBendelack, i Esp.- Rep. 108:

       Therefore, where an objection to the competency of a witness arises out of an answer on his cross-examination, he may, in the same manner, restore himself to competence by showing the disability removed. Butcher's Compamy v. Jones, 1 Esp. Rep. 160. So if on his voir dire. Botham v. Swingler Ibid, 164.

      а) That is the" true point of the decisions.

      б) That case goes only to' tlie admissibility Of deists, hot believing in the Christian religion. The proper question on this point is, “ Do you believe in God, the obligation of an oath, and a future state of rewards and punishments." Rex v. Taylor, Pealce, 11. See also Rex v. Gilliam, 1 Esp. Rep. 285.

   Livingston, J.

Show how the interest here does not incapacitate.

Against us some maxims and some decisions have been relied on, which, however, it is conceived, do not in the least invalidate the force of our arguments. It is said that the order in favor of White created a lien on the property in' the hands of the agent. Allowing this to be so, that lien was but a possibility. There might have been five hundred previous orders, each to be preferred to this; or the agent himself might have had claims more than enough to absorb the whole of the funds when in his possession. That equitable liens should work legal incompetence is per fectly new in law. If it be so ruled, the court may, perhaps, see the doctrine of incompetence pervade cases as yet but little supposed to be within its influence.

The case of a mortgagee being inadmissible m an ejectment to testify for his mortgagor, is widely different from this. There the mortgagee has a direct legal interest, by the operation of a legal instrument. His mortgage gives him an interest at law.

I am aware that, after receipt of the sums in demand, there may, perhaps, be a remedy at common law for recovey of the amount of the order; that an action for money had and received may be maintained. But let it be remembered, •this species of proceeding is, in its nature, like a bill in chancery. It admits of every equitable plea as a defence; set-offs, prior liens, and the whole train of occurrences which would give the defendant a title to prefer others to the plaintiff. The cases from Vezey, senior, and Vesey, junior, are nothing more than chancery decisions respecting funds in possession, and Powel v. Gordon, (2 Esp. 735,) is an authority directly in our favor. There the witness had a power of attorney to receive the money when recovered, so that the fund out of which his debt was to be paid, would have come into his own hands ; but your honors will [*371] please to observe that Lord Kenyon asked *him if he was willing to permit any other person to- _ receive the money, and it was not till he refused this that he was deemed incompetent. The reasoning, then, of this decision is, that had the money gone into the hands of another, the witness would have been admissible, though it is certain his letter of attorney would have warranted him in demanding it from the receiver. The possibility of intervening claims did away the objection. So with us, as the money was not to go into White’s hands, but into those . of another, he stands precisely in the situation of the witness in Powel v. Gordon, had he consented to another’s receiving the sum in litigation.

It has, therefore, it is presumed, been shown,

1st. That objections run more to the credit tnan to the competence of witnesses.

2d. That to affect the competence, the interest must be immediate.

3d. That White’s interest was not immediate, but consequential. ■

4th. That admitting a lien to have been created by the order, that does not vary the matter.

5th. That the very case of a creditor witness was put by the whole court of Icing’s bench,' and allowed not to incapacitate; and

6th. That the inferences, unavoidably resulting from Powel v. Gordon, fully establish the competence of White.

The reasoning antecedently used on this point, cannot, it is thought, be better concluded than in the words of Mr. Fonblanque, 2 Fonb. 457, when speaking of the rule respecting the interest of witnesses in causes, on the trials of which they are brought to give evidence; it is, he says, “the most flexible in its application of any.”

The next objection to which it is necessary to advert, is, •‘that paroi testimony of ownership was inadmissible.” For this it has been relied on, that the register act has made a certificate of registry a legal record. It surely will never be imposed on me to demonstrate that such an instrument, or the book in which it is kept, is not a legal record, in the technical sense of the word, import- .[372] ing a verity which admits not of being controverted or substantiated by oral proof. I shall only observe, it has been ruled by Lord Kenyon, that exercising acts of ownership, paying of men,^directing the loading, &c. were sufficient testimony of interest in a vessel. For, in commercial contracts, the highest degree of evidence is not always required. The purpose of the register act was not to make the proceedings under it of record, but merely for state reasons, to enable to collect the duties on tonnage, by ascertaining what ships belong to foreigners, and what are our own.

It is, thirdly, insisted by the defendants, that as the aban' donment was made in writing, and notice to produce it not given, paroi proof of the abandonment ought not to have been received.

It is worthy of observation that the abandonment is not denied; it is only asked that we should not be permitted to show it. It cannot be argued that it is indispensable to make the abandonment in writing. We admit it to be usually so done: that however, is nothing more than matter of caution. It was, on that account, done here. But there is no case to show we were obliged to do it. If so, we may prove the contents or effect of the letter of abandonment, without notice to produce it, because it now becomes a fact, like every other, to be established by paroi testimony.

In order to decide on the necessity of giving a notice to produce any written paper served on the opposite party, we have only to call to mind the reasons why it is in any case required. They are, lest a misrepresentation should be made of any fact which constitutes the foundation of the wtion, and which, though in possession of the opposite side, yet being unnecessary to his case, might not be brought by him. When, therefore, the contents of the paper in question are not the foundation of the action, a notice to produce it is totally superfluous. Therefore, in cases of notices to quit; notices to a magistrate previously to [*373] commencing an action *against him; the demand in writing of a warrant before proceeding against an officer, or any similar case, notice to produce the notice, need not be given. Jory v. Orchard, 2 Bos. & Pull. 39. So an attorney’s bill, on which an action has been brought,, may be proved without notice to produce the one delivered under the statute. Anderson v. May, 2 Bos. & Pull. 237. So, payment of rent by a tenant in possession can be established, without notice to produce the receipt. Bunn. Eject. 289. Because, wherever the matter is collateral, paroi evidence is adequate to every purpose. The idea of this necessity of giving notice, has arisen from a confounding of cases. From mistaking that to be the foundation of the suit, which is only used in proof of the demand. It is but a mere formality, which the right of action by no means depends.

Another reason may also be offered to evince the nugatoriness of a notice to produce the letter of abandonment. It was sufficient to establish it by the copy offered at the trial. Wherever a number of copies are simultaneously made, they are, in law, all originals. Because, being created uno flatu, one is considered the same as the other, and may equally be read in evidence without notice. Gotlieb v. Danvers, 1 Esp. Rep 455. So the counterpart of indentures. Burleigh v. Stibbs, 5 D. & E. 465.

Having, it is hoped, obviated the three first difficulties to our retaining our verdicts, the fourth which presents itself, is, that there is no proof of the property being the property of a citizen of the United States;” or, in other words, that the warranty of American citizenship has not been complied with.

In combating this objection, we beg leave to state, that in this country there are three different kinds of citizens.

1st. Those who became so at the declaration of independence.

2d. Those who, since that period, have become so by naturalization.

3d. Those who are so by domicil and employment.

' Thus m.uch being premised, it will be necessary to call the attention of the court to those doctrines, on which *the law of warranties has been held to rest. [*374] According to those, it suffices if the warranty be complied with in conformity to its ■letter, without any regard being had to its spirit. In consequence of this principle, an opposite maxim has been sanctioned, that no virtual fulfiling of a warranty can be allowed. What, then, in the present case, can be deemed to fulfil the warranty of American citizenship ? Will it be pretended that the person warranting must be a citizen, such as those who became so at the declaration of independence? This will hardly'be said; and should it be, there is no case to warrant the assertion. Is there any- decision which declares he must be a citizen by naturalization ? None; for this would exclude all original citizens. Neither can it be insisted that he must be a citizen with all the rights and privileges of an American ; because a naturalized American, one who did not become a citizen by the declaration, is not eligible to the office of President of the United States, or that of Governor to any individual state. Both positions are equally untenable. Of what species of citizens, then must he be ? One by domicil and employ. Why ? Because this embraces every class of citizens, and answers every purpose of the warranty. Let us, for an instant, recur to the reasons on which a warranty is given. It is to assure the underwriter that the subject matter of the policy is American, and within the protection of the law of nations. It has been long ago settled that personalities follow the person. On this account domicil for ever regulates distribution of effects. That the principle is peculiarly adhered to in matters of prize is notorious. The merchandise of a friend, resident in the country of an enemy, is liable to' confiscation ; for it is the domicil that stamps the national character. So the employ of a master of a ship invariable fixes the nation to which he belongs. The Énibden, 1 Rob. Adm. Rep. 16. The Vigilantia, and cases there cited, ibid. 1 The Harmony, 2 Bob. Adm. 322. Mr. Ostermeyer’s Case ibid¿ 41. Mr. Johnson’s, ibid. 17. Owners of the shop Chester v Owners of the experiment, 2 Dall. 41. The case states Peyton a resident, and known master of American ^vessels, naturalized from residence(ct) and employ. [*375] In this view he is beheld by the admiralty court in Nassau, and the property they acknowledged as his they acquit as neutral. Every protection, then, has been afforded which the warranty was meant to confer, and Peyton, in the eyes of a foreign tribunal, and according to the law of nations, stands confessed an American citizen. In every part of insurance law the same principle is to be found. If within the letter of the clause, it is enough'. A ship waá warranted well on such a day ; she was well at 6, but lost at 8 o’clock, and held a compliance. (Blaclchurst v. Cochell, 3D. & E. 360.) So here, warranted the property of an American citizen. Not a citizen with all the rights and privileges of an American citizen; not even a naturalized citizen; but a citizen' adequate to all the perposes of protection, intended by the warranty, a citizen de facto, though not de jure. I am aware the ground now taken is, in cases like the present, perfectly new. It is not, however, a ground on which this court has never trodden. We but follow their footsteps in other causes.- In Goold and another v. Grade, June term, 1798, under a clause in a policy, that if an assurance was' effected in Europe, the premium was to be returned, deducting one half per cent, it was held, unanimously, that a policy de facto was within the meaning of the words, and the insurer exonerated, though the policy was void ah initia, and therefore, a recovery could never be had. So, by Puller, J. in Wilkinson v. Payne, 4 D. & E. 468, a marriage de facto was said to be sufficient to entitle to recover on a promissory note.

■ If, however, the court shall be against us on this principle, still we shall contend that the citizenship of Peyton is substantiated by evidence in the cause.

It is an acknowledged axiom that every man’s testimony is to be received or rejected in toto. You cannot cut and garble it. Take one line, if it suits your purpose, and then reject the next; his alienage is before the court, from his own confession, and so is his naturalization. If you believe him on his word that he was an alien born, you must believe him on his word that he has been naturali[*376] zed since. As a *man is charged, so he shall be discharged If his own declaration is to determine him an alien, his own declaration shall show him an alien naturalized. His acknowledgment of his foreign birth is nothing more than presumptive evidence of his being now an alien. He might have been one by birth, and yet have become a citizen at the declaration of independence. General Gates, Governor Clinton, Washington, himself, were all aliens by birth; being, therefore, born an alien, is no more than presumption of his being so now, and presumption may always be rebutted by presumption. Tysen v. Clark, 3 Wils. 541. Runn. Eject. 262. Allowing then, for argument’s sake, the declaration of having been naturalized to be laid aside, what presumption does the case afford to counteract this presumptive evidence of alienage. First, there is a general reputation oí the plaintiff’s being a citizen. It will not be denied that in many instances, reputation is, of itself, good testimony. It is adequate to establishing a pedigree or a marriage. Per Holt, Ch. J. in Dr. Hartcourt's Case. Yet in each of those, certificates may be adduced, and the doctrine of Holt is now allowed in England, though registers in both those cases are ordained by statute law, and certificates of each may be, and are every day, adduced. So to ascertain who.was the patron of a living, in The Bishop of Meath Lord Belfiéld, 1 Wils. 215, presumption was allowed. If ever there was a country in which presumption of citizenship ought to be conclusive, it is this. I may again instance General Washington, nay, your honors who now sit on the bench have nothing else to offer; you have no naturalization, no document to show, but the places you fill, and general reputation would give to you the character, and to your children a title, to the estates you may leave. So with Peyton, were he to die to-morrów, his issue would take his real estate, in right of his citizen father. Shall then, his reputation of citizenship be good to support a claim to land, and yet be inadequate to one against an underwriter? Are three fourths of the community to be cut off from the only mode by which they ever had, or can have, a possibility of substantiating their right to the American *name? If [*377] more proof be required of the,plaintiff’s citizenship, it is afforded, and that by the case itself.

Before it is attempted to evince this, I shall beg leave to lay down three maxims.

1st. That all things done are presumed to be rightly done. Griffin v. Stanhope, Cro. Jac. 354; Rex v. Morris, 2 Burr. 1189 ; 1 Wils. 275,

2d. That situations occupied shall be supposed to be legally filled. Lord Halifax's Case, Bull. N. P. 298 ; Lord Purbeck's Case, cited, Cowp. 109.

3d. That fraud and misconduct shall be imputed to no man. Chattle v. Pound, Gilb. L. Ev. 103. If necessary, I shall first substantiate, and then apply these principles.

Lewis, Ch. J.

The principles will not, I fancy, be dia puted.

Cainés.

In order to apply them, it will be incumbent to advert to the testimony in the case.

It is in evidence that the plaintiff commanded an Ameri cari vessel carrying guns. In order to capacitate him fox this command, he must have been antecedently proved, to the satisfaction of the officers in the custom house, an American citizen; for none but an American citizen could occupy such a station. If so, then we are fully within two of the maxims; we have complied with their letter and their spirit; it is, therefore, to be presumed that what has been done was rightly done, and that the situation which Peyton did fill was legally occupied. The inference, consequently, becomes clear as day that the plaintiff is an American citizen. If we hesitate for a moment in pronouncing him so¿ w'e violate every one of those three maxims which have already béen conceded. First, we must presume that whát was done was not rightly done; secondly, that the station filled by" the plaintiff was not legally occupied. We cannot even stop here; we must go on, and not only presume fraud and misconduct, but take for granted perjury upon perjury; all the penalties of the register act incurred, and a long connected system of false swearing, as if by vocation. These are the mild inferences suggested on the part of the defendants; they are such as your honors will surely never make; we trust we are peculiarly justified on ask [*378] ing for those for *which we contend, because when reputation is accompanied with facts, it is good evidence. Per Gróse, J. in Roe V. Parker, 5 D. & E. 32. Here, then, was reputation accompanied with the fact of Peyton’s having commanded an American armed vessel, His citizenship is, therefore, established—

1st. By his domicil and employ.

2d. By the evidence of White.

3d. By reputation.

4th. By reputation accompanied with facts.

5th. By necessary and unavoidable presumption.

The last point is confined to the vessel, and resolves itself into the abandonment having been made too late, and affcei an acquittal. It will be sufficient oh this, to remark, that whenever a legal right becomes once vested, and is exercised, subsequent occurrences do not affect it. On the capture, the plaintiff had a right to abandon; the acquittal of the vessel, as it does not appear to have been known when the abandonment was made, cannot invalidate the right. The only question, then, is, whether it was in due season. See ante, 53 ; Muir v. Unit. Ins. Co., note (a)

On looking at'the dates of the different circumstances, it' will be found that theré was an intervention of only 29 days from one period to the other. This, it is presumed, cannot be deemed too great a length of time, considering that the' news of the capture must have travelled from the Bahama Islands to Charleston, and from thénce to He'w York. Upon every ground, therefore, it is trusted the verdicts that' have been rendered will be confirmed.

Pendleton, in reply.

The cases of Barlow v. Vowel, George v. Pearce, and Rex v. Fox, proceed -on this ground; that a person who is a witness shall not, by a subsequent act of his own, deprive others of the benefit of his testimony. The principles of admissibility are no where better laid down than in Omichund v. Barlcer. There is no instance of a person not a citizen by birth or naturalization, being held an American citizen; and as' to the inference from his employ, he may qualify himself to be a master of á' vessel by his own oath. Hone of our objections *have been answered. In particular, that against [*379] paroi evidence of the register, for, if congress chooses to make it a record, this court cannot deny it'all the privileges of one.

Livingston, J.,

delivered the opinion of the court. These are motions for new trials on the part of the defendants, and among the objections to the verdict it is alleged that George White who was examined for the plaintiffs, was an incompetent witness. This objection appears to me to be well taken He was a creditor of the plaintiffs, who had given him an order on his agent, Thomas Napier, for the amount of his debt, to be paid out of the moneys to be recovered on the policies upon which those suits were brought, and had promised him the debt should be paid out of the same. This order was not accepted, but the witness said “he expected to be paid accordingly.” He added, that whether the plaintiff recovered or not, he should look to him for payment, as his right did not depend on the event of the suit. Here was an interest, in our opinion, sufficiently direct, and dependent on the event of the cause in favor of the witness, to render him incompetent. The order he had obtained amounted to an assignment of this property to the extent of his demand ; and the agent, after its exhibition to him would, at his peril, have parted with it to the plaintiffs, or to any other person. It is not a satisfactory answer to this difficulty to say, that White still retained his remedy against the plaintiff if this fund failed. If a bond be assigned, with a covenant on the part of the obligee or assignor that he will pay its amount in case it be not recovered from the obligor, would the court permit the assignee to be a witness in a suit on that bond ? I think not; and yet I perceive no great difference in the cases. Nor will it answer to say that Napier may have had a right to appropriate this money in another way. This might have been shown on his examination; as this was not done, we are not now to presume it contrary to the expectations of the witness himself, which, no doubt, arose from promises made - to him by the agent; for without some assur[*380] anee of the kind, he would have abandoned *every hope from that quarter-. No -doubt can be entertained of Napier’s being the plaintiff’s agent-to recover this money. The bill was drawn on him- to pay out of this fund, which implies an authority to receive it. He had the policies, for he made the abandonment, and the case itself gives him that appellation. It was also said on the argument that it was not certain the agent would ever receive these funds, and until that was the case, White could have no claim on them. For this very reason he had an interest to place them in the agent’s hands, that his debt might be satisfied out of them. It is certainly dangerous to permit a person who has an interest, or who, on good grounds, thinks he has an interest, in a particular fund, to testify concerning it. , In. case of the insolvency of Peyton, there can be but little doubt that he might have compelled the agent in a court of equity, to pay his whole demand out of this money. 1 Yez. 832.

If a man promise a witness that if he recovers lands, he shall have a lease of them, this excludes his testimony. 2 Keb. 576. So, if a person be promised payment out of the sum in controversy, which is the case here, he ought to be excluded, unless he will release such interest. As that was not done here, the court is of opinion a new trial ought to be had, with costs to abide the event of the suit.

Lewis, Ch. J.

There is no difference amongst us in this cause, but on the point on which .the court have set aside the verdict, viz. the competency, of Mr. White, the witness produced on the part of the plaintiff. I do not concur in the opinion that he was incompetent. The bill drawn in his favor on Napier, the agent, has never been accepted, nor has the fund out of which it was to be paid, ever come .to his hands. White, then, in my conception, had no interest in this fund. The doctrine of lien, has never, that I know of, been extended so far as to vest an interest in one man in a fund which may or may not come into the hands of another. Neither of the cases relied on go to such extent. In Row v. Dawson, Swinburn was in possession of the fund, and Lord Chancellor Hardwicke considered the bill of Gibson as an assignment to the amount of [“381] *the draft. In Powel v. Gordon, the witness was himself the agent who was to receive the fund, by virtue of a special power for the purpose, and refused to let it go into the hands of another, which, had he' assented to, would, we are to infer, have established his competence. In our case the power was in the hands of a third person already; and, therefore, within the spirit of the decision in Powel v. Gordon, White was a competent witness.

New trial ordered.

       See Code of Procedure, sec. 398.

       The principle on which a release makes a witness competent is, that it destroys his interest in the suit, or liability to the parties to it. When, therefore, it will not have that effect, the witness continues inadmissible; as a bankrupt nnder a second commission, though he release his interest in the estate, unless it has paid 15s. in the pound, for he has an interest in increasing his estate to that amount, in order to discharge his future effects. Kennet v. Greenwollers, Peake’s Cas. 3. So a person who appears from the testimony in the cause to be a partner with the defendant, but not sued, cannot, by a release from the defendant, be made a witness for him, because, though such release would discharge his contributory liability to the defendant a< law, he would still, in case of the defendant’s death or insolvency, remait liable in equity to the plaintiff. Cheyne v. Koops, 4 Esp. Rep. 112. Contra, Young v. Bairner, 1 Esp. Rep. 103. It follows, that when a witness is liable to the party for whom called, he cannot testify without a release from such party; as an owner of a house, called by a plaintiff who has done work upon it, to show that the defendant is liable, in virtue of a contract for a certain sum, to make all the repairs and pay the workmen; (New v. Chidgey, Peake’s Cas. 98,) or a barge-master for a shipper, in an action for occasioning the loss of his goods by sinking the barge; (Spilty v. Bowens, ibid. 53,) or an owner of a ship to prove her seaworthy in an action against an underwriter; Rotheroe v. Elton, ibid. 84,) or a captain of a vessel, to prove for an underwriter, where the loss was stated to be by barratry, that the acts done were by the consent of the owners. Bird v. Thompson, 1 Esp. Rep. 339. Observe, that a release by one joint owner will extinguish the interest of all. Hotchkiss v. Mitchell, 4 Esp. Rep 86. Where there is no liability, a release is superfluous; as to a servant, who merely delivers out goods, by his master when called to prove the delivery. Adams v. Davis, 3 Esp. Rep. 48. A grantor with warranty, on being released as to his covenants by his grantees, is competent to prove as well as disprove fraud in his deed. Jackson v. Frost and Haff, 6 Johns. Rep. 135. A late case has decided that a husband of a deceased wife may be a witness for her administrator on executing a release to him of all the witness’s right, &c., in what might be recovered by tho administrator in that suit. Woods v. Williams, 9 Johns. Rep. 123. If the doctrine in Cheyne v. Koops be law, there would seem to be an interest in ihe witness susceptible of release only by the defendant; the costs, if tho Suit were determined against the plaintiff, out of the estate of the wife, to which the husband was entitled.