author: Kent, Ch. J.

text:
    *Jackson, ex dem. F. and E. Goose and Brown, against Demarest.
    After a lessee has quitted the premises demised, -without proof of ever having paid rent, and after a 14 years’ possession, under conveyances from a lessor who had a right to enter in default of payment, a demand and reentry will be presumed.
    Ejectment for lands in Montgomery, in which a verdict was taken for the plaintiff, subject tp the opinion of the court on the following case:
    In, April 1773, Jelles Eonda demised to Frederick Goose, and Elizabeth, his wife, and their heirs forever, the premises in question, rent free for the first eight years, reserving from thenceforth forever thereafter, an annual rent of six pounds, with a power of re-entry in case the same should be unpaid for twenty-one days after due.
    Under this lease Goose and his wife entered, and continued in possession till 1778, when they went into Canada, leaving the premises vacant.
    In March, 1785, Fonda, by lease and release, conveyed a large tract of land, including that in dispute, to Daniel Campbell, who, in 1789, demised it to Robert Kason, under whom the defendant claimed.
    At the trial there was no proof that Goose had ever paid any rent, or that any person had ever been in possession under him after he went to Canada; nor was there any testimony that Fonda, or Campbell, had ever demanded the rent, or made any entry for non-payment of it.

      Cady, for the plaintiff.
    We have to contend that there was no abandonment of the possession, and that the nonpayment of rent could not of itself work a forfeiture of the lease. On the first point the case is conclusive. It does not appear that the lessor of the plaintiff ever quitted the possession so as to leave it vacant. But if he did, an entry by the lessor ought to be shown before he could pass any title to a third person. 1 Dyer, 7, a. The breach of the condition gave only a right to re-enter. ChicJcleys Case, ibid. 79, a. But even this could not be exercised without a previous demand of the rent, notwithstanding the clause reserving the rent does not specify that any demand is to be made. Browning v. Beston, Plow. 130. Mallory’s Case, 5 Bep. 111. Molineux v. Molineux, Cro. Jac. 145. Newdigate’s Case, 1 Dyer, 68, b. None is shown to have been made, and therefore Fonda had no authority to convey.

      Van Vechten and Radcliff, contra.
    After a lapse of so many *years, a demand must be presumed, as the possession has been in conformity to the title of the defendants. Read v. Brookman, 3D. & E. 159, and the cases cited there. Vandyclc v. Vanbeuren & Vos-burg, 1 Caines’ Bep. 84. Denn v. Barnard, Cowp. 595. In Jaclcson, ex dem. Smith, v. Wilson, in this court, to support the title of a landlord who had acquired the possession, after a judgment against his tenant, an affidavit of an insufficiency of distress and a writ of possession were presumed, and that he had entered according to his right under the judgment. So in Bergen v. Bennett, 1 Caines’ Cases in Error, after 16 years’ possession, it was presumed that the proceedings under the act concerning mortgages were regular.

      Cady and Umott, in reply.
    It is conceded tbis case, does not rest on fact, but on presumptions; and to warrant them, there must be a string of presumptions. Had there been a demand of rent, there might have been a presumption of an entry: for presumptions must arise from facts. Here we are to presume facts to make presumptions: 1. That rent was demanded; 2. That there was an entry. If the demand was established, the rest might be presumed; not otherwise.

       There was a further point made, as to adverse holding; but as it was not noticed by the court, it is not necessary to specify it, or detail the argu ments used.

   Kent, Ch. J.

The lessor and his family abandoned the premises in 1778. In 1785', the landlord had a right to re-enter for non-payment of rent, and he then sold the land. In 1789; Kason, under his title takes possession. Here, then, is certainly 14 years’ possession, and after that we will presume a regular re-entry at common law. Ee-entry is a matter in pais, and not of record. In the case cited against Wilson, which was determined in January term, 1803, an affidavit of arrears was presumed. In the authority from the court of errors, the notice from the mortgagee was presumed to have been regular. Judgment, therefore, must be for the defendant.

Judgment for the defendant.


source: Caselaw Access Project

author: *Per Guriam.

license: Public Domain

text:
    Knapp against Onderdonk.
    The court will not allow an amendment, in a justice’s return, in a point contradicted by the affidavit of the justice himself especially if after joinder he has noticed for argument on errors assigned.
    Smith moved for leave to the justice to amend his re turn.
    Caines, contra.
    Independent of errors having been as^ signed and joinder, the justice has made an affidavit con* tradicting the existence of the fact in which the amendment is requested. Besides, two notices of argument, on the error assigned, have been given.
   *Per Guriam.

There is an evident laches. If the amendment is necessary, it ought to have been applied for before noticed for argument. The plaintiff in error must have known what was necessary to support his own assignment.

Amendment denied.


text:
    Anonymous.
    [f circumstances tend to show a paper served by being put under a door has been received, the court will, unless the contrary appear, presume it has come to hand.
   The service of the case made in this cause was, by putting it under the door of the opposite attorney’s office, which was locked, but from the window’s being open when this was done, and being very shortly after seen to be shut, the plaintiff’s attorney swore he had reason to believe the case came to the hands of the attorney of the defendant; From these circumstances, and their not being contradicted, the court was pleased to consider them as evidence of the case being received.


author: Per Guriam.

text:
    M’Kay against The Marine Insurance Company.
    [f a party has had an opportunity of examining a transient witness, want of his testimony is no cause for putting off a trial. Absence of counsel is an excuse for not going to trial which the court discountenances.
    The defendants, at the New York circuit, moved to put off the trial, for want of tbe testimony of a material witness, who was a transient person, and bad once been witbin tbeir power. Tbe court refusing to do tbis, a verdict went against them, in consequence of wbicb, and tbe absence of tbeir principal counsel, tbe defendants moved to set it aside.
   Per Guriam.

Tbe decision at tbe circuit was right. Whenever a party has bad an opportunity to examine a transient witness, and has suffered it to pass by, the want of bis testimony is no objection to going to trial. In Post v. Wright and Buchan, (1 Caines’ Rep. 111,) tbe absence of counsel was urged as an excuse, but tbe court refused to admit it, and we think all excuses of that sort ought to be discountenanced.

Motion denied.


text:
    Felter against Mulliner.
    The court will order a justice to amend his return by stating the evidence of a former trial for the same cause of action.
    On certiorari. Tbe court ruled that if there has been a former trial for tbe same cause of action, and a justice refuse evidence of it, be will be ordered to amend bis return, by setting forth tbe testimony offered.

       See ante, 110, n. (a.)


text:
    *Jackson, ex dem. Kemp and others, against Parker and Brewster.
    After a verdict for the plaintiff, if he neglect to make up the record the court will permit the defendant to do it; but if he apply to the court before request made to the plaintiff costs of the motion will not be allowed on either side.
    Caines applied for a rule ordering tbe plaintiff^ who had obtained a verdict, to make up the record within a given time, or that the defendant have leave to do it for him, as the verdict was complete evidence for the defendant in a suit in chancery between the same parties.

      Smith resisted the application, because the defendant had never requested it to be done. •
   Per Guriam.

Take your rule, allowing twenty days for the plaintiff to make up the record and carry in the roll, but without costs on either side. Not to the defendant, because he ought to have made a request to the plaintiff before notice of application to the court; and we refuse them to the plaintiff because he ought not to have come here to resist.

Motion granted nisi, but without costs.

        Kettletas v. North, Cole, 49, four days allowed.


text:
    Lucet and others against Beekman and others.
    The word seised imports of a feo.
    If a party named in a petition, for partition, be stated to be seised of a certain portion, the court will intend it to be of a fee.


text:
    Anonymous.
    Notice by advertising.
   The court said that in all cases where a three months advertisement is required, a weekly notice is sufficient.


text:
    M’Kenzie against Wilson.
    Trial by record.
   Trial by record is a non-enumerated motion. See 1 Caines Rep. 6.


author: Per Curiam.

text:
    Mitchell against Ingersoll.
    If it appear diligence has been used to obtain the transcript in error, during a reasonable expectation of which a default has been entered for not assign' ing errors, it will be set aside on payment of costs.
    The rule for assigning errors having expired, the defendant entered a default against the plaintiff.

      jHopkins moved to set it aside, on an affidavit stating that *the transcript had been written for, and was, when the rule expired, daily expected.

      Whiting, contra,
    urged that an order to enlarge the time for assigning errors ought to have been obtained.
   Per Curiam.

No laches is imputable to the plaintiff. He had reasonable grounds for expecting the transcript: let, therefore, the default be set aside on payment of costs.

Motion granted on costs.


author: Per Ouriam.

text:
    Ludlow against Heycraft.
    A plea sent by the post, will save a default.
    This was an action against the acceptor of a bill of exchange, in which the plea, having been sent by the post, did not arrive in time, in consequence of which a default was entered. See 1 Caines’ Rep. 67, n. (b.)

      Henry moved to set it aside, on affidavit that the acceptance was conditional.

      Williams resisted,
    because it did not appear to have been on the face of the bill.

      Henry, in reply.
    It might have been verbal, and is sworn to.
   Per Ouriam.

Take your motion on payment of costs.

Motion granted.


text:
    Codwise and others against Hacker.
    In future no trial by proviso without previous rule to be obtained on notioe. Counsel of the court have privilege.
   The defendant in this cause, without any previous rule for trying it by proviso, gave a simple notice that he should bring it on, but inserted a proviso clause in the venire. Under these circümstaces he obtained a nonsuit at the last term, to set aside which, application was now made on behalf of the plaintiff, who did not notice for trial; the court, however, refused the motion, in consequence of the proviso clause being inserted in tbe venire, but at tbe same time made tbe following general rule:

Ordered, that hereafter the defendant shall not try a cause by proviso, without a previous rule for that purpose, to be granted by the court on the usual notice.

In the case of Thomas Addis Emmet, Esq., who was admitted, in this term, to the degree of counsellor, the court determined that alienism was no bar to admission, our statute *not requiring the oaths of abjuration and allegiance to be administered either to counsel or attorneys, and this court having, therefore, no power so to do. That the only oath requisite was that of office; nor could they conceive how the practice of admitting the others nad crept in, unless trom the old colonial practice, under the statute of 18 Wm. Ill, c. 6, made to secure the crown against the Pretender, by the provisions of which counsellors and attorneys are enjoined to take the oaths of allegiance and abjuration. But by those of 4 Hen. IY, c. 18, from whence our act is borrowed, the oath of office only is prescribed, upon taking of which Mr. Emmet received his license.

N. B. It was ruled that a counsellor of this court is entitled to privilege, and must be proceeded against by bill as present in court, and not by writ.

REGULiE GENERALES.

Ordered, that in future only the oath of office be administered to persons admitted as counsel or attorney in this court.

Ordered, that in error on certiorari under the 10?. act. the plaintiff be entitled to have taxed against the opposite party, only for a general assignment of error, special as signments being unnecessary, as the court is bound to decide on the merits, and overlook the defects of form.

         See ante, 261, n. (a,) contra.


text:
    Anonymous.
    Practice on stipulation.
    The Court intimated that when a stipulation (see vol, 1, p. 7, n. a.) is offered, before notice of motion, then costs will be allowed up to the time of offer. When after notice, and before actual application, up to that time. But when not till the court is applied to, then all costs must be paid.


text:
    Anonymous.
    Practice on frivolous demurrers.
   It was ruled by the court, that to take the effect of a motion for judgment when a frivolous demurrer is put in, notice of bringing on the argument must be given,

       See post, M’Cabe v. McKay, p. 100.


text:
    *The People against James.
    If a prisoner who has been pardoned on condition of leaving the United States within a limited time, do not depart, and is afterwards taken up for not so doing, he may, z~ its appearing to the court that he was deranged in his intellects, be discharged on condition of departing within the same period from the day of discharge.
   The prisoner James had been convicted of forgery and committed to the state prison. He had been pardoned by the executive, upon condition of leaving the United State:* within forty days. Being found in the city of Hew York after the expiration of the time limited for his departure from this country, he was taken up and committed to the county prison. The District Attorney obtained a rule against him, ordering him to show cause why he should not be remanded under his former sentence. The prisoner being brought up and put to the bar, the record of his former conviction was produced, and his identity ascertained by his own confession. It appearing, however, that he had been insane part of the time since he had been pardoned, tbe whole time in ill health, and in very indigent circumstances; that he had also been in confinement several weeks for breaking the condition of his pardon, the court was pleased to order that he should be discharged, and that he should have forty days from thence, to comply with the condition of his pardon.

       The game practice in The King v. Patrick Madam, 1 Leach’s Cas. 263.

         See vol. 1, p. 12, M'Neil’s case, the necessity of producing the reoord of a former conviction.

         Otherwise a venire would have been ordered instantly to try the fact, Ratdiffe's Case, Poster’s Crown Law, 41.


author: THOMPSON, J. LIVINGSTON, J.

text:
    Belding against Pitkin, executrix of Pitkin.
    An action will not lie upon a contract to pay over half the proceeds of an illegal contract, though the money arising from it has been received by the defendant.

    This was an action of assumpsit, tried before the Chief Justice, at the Columbia circuit, in July, 1803. The declaration contained the common money counts, and a count for work, labor and services, under which it was agreed that the plaintiff might offer evidence of a special contract. The defendant’s testator was possessed of a grant from the Susquehannah commissioners, so called, for a township ol land in the county of Luzerne, and commonwealth of Pennsylvania, under the Connecticut title only. He contracted with the plaintiff, that if he would sell this for him, he would give for so selling the same, the one half ol
      *all that should be obtained over and above one thousand dollars. The plaintiff did sell the townships to one Anthony Maxwell, and took his notes for two thousand five hundred dollars, about one thousand seven hundred and fifty dollars of which had been paid to the testator. The residue was not paid by Maxwell to any person. A verdict for six hundred dollars was taken by consent, subject to the opinion of the court upon this question: whether any action could be maintained to recover the moiety of the profits arising from the sale of lands under the Connecticut title, those lands being situated in, and claimed by, the commonwealth of Pennsylvania ?

      Williams, for the defendant.
    The transaction was illegal, because the title was not an object of legal sale. It was a pretended title. The action is for a compensation for doing an unlawful act; for in the Susquehannah causes it was settled, that sales of these titles were void.

      W. Van Hess, contra.
    The parties have consented to the whole of the transaction, and have actually received money under the contract. To whom the title belongs is immaterial. Though the contract might have been void, yet, as it was not malum in se, but Only a malum prohibitum, and has been consummated, the money due to the plaintiff out of the consideration actually paid may be recovered. This is different from the case of enforcing a contract.

      Williams, in reply.
    Common lawprovisions declare the contract null. Though consummated, it will not interfere: but the present suit is, in fact, to enforce the contract, and make us pay under it, though contrary to law. The principle is, that courts of justice, in cases like the present, will not aid either party, but leave them where they are. 1 Pow. on Cont. 176.

       That an unlawful transaction should ever, in any way, become the legal basis of an action at law; or, in other words, that the law should ever, in any manner, lend its aid to enforce claims arising out of a violation of its own principles, strikes the mind, on being barely stated, as repugnant to all reason and good order. The judges 'in Westminster Hall seem, however, to have been in some'degree astute in supporting actions originating in illegal transactions. Thus, it has been said that where the illegal contract is executory, money paid upon it may be recovered back, aMter, if it be executed ; (Per Buller, J., in Lowry v. Bordieu, Doug. 470; Tappenden v. Randall, 2. Bos. & Pull. 461;) and that where the contract is only malam prohi-bitum, and not malam in se, if a third party lend money to pay a loss incurred in its performance, the loan, though with notice, is a good consideration to support an action. Faikney v. Reynous, 4 Burr. 2069; Petrie v. Hannay, 4 D. &. E. 418. These eases are, perhaps, very questionable. They were disapproved of by Lord Thurlow; and in Ex parte Mather, 3 Ves. jun. 313, Lord Loughborough says, what is called in them a consent, “is a confederacy to break a positive law.” This idea of his lordship is in unison with the cases under the statute prohibiting the sale of public offices; (5 & 6 Edw. VI. c. 16;) for, though it be a penal law, and, according to the rule of our jurisprudence, not to be extended as to penalties and punishments, “ yet, if there be a public mischief, and a court of equity” (why not a court of law also ?) “ secs private contracts mado to elude laws enacted for the public good, it ought to interfere.” On this principle of Lord Talbot’s, in Law v. Law, Porrest, 141, it has been determined that an action at common law cannot ha maintained on an agreement to allow the plaintiff a certain share in the profits of an office, in which he superannuated himself to get the defendant appointed. Garforth v. Fearon, 1 n. Bl. 327.
      Independently of the inferences to be drawn from the last determination, the diversity sanctioned by the cases of Faikney v. Reynous, and Petrie v.
        Hannay, have received a very severe shock by the decisions in Steers v. Lashley, 6 D. & E. 61, and Aubert v. Maze, 2 Bos. & Pull. 371; the former having settled that a bill drawn by an agent, in illegal transactions, on liia principal, for the amount of money paid on his account in settling those transactions, cannot bo recovered on by a third person taking it with knowledge of the consideration; and the latter, that money paid by an associate in a prohibited trade, on account of losses sustained in it, cannot be recovered from tlie other, oven under an award made by the arbitrator, to whom the settlement of that balance, and other things, were referred.
      In order to take an action out of the baneful effect of an illegal consideration, the English adjudications have made this further distinction, that when the suit is against a third person, who has received money under an unlawful agreement between two others, it shall not lie with him to set up its illegality; Farmer v. Russell, 1 Bos. & Pull. 206;) therefore, an insurance broker, who has received upon an illegal policy the amount of the loss, cannot make the vice cf the contract his defence. Tenant v. Elliot, 1 Bos. & Pull. 3. Lord Kenyon, however, in Sullivan v. Graves, Park, 8, and 1 Selw. N. P. 57, determined that in an action by a partner in illegal insurances who had paid the whole of the losses, against a broker who had received on the plaintiff’s account half the amount from the other partner, the defendant might avail himself of the unlawfulness of the transaction, and that the plaintiff could not recover. Yet, where money was deposited in the hands of the defendant, as a stakeholder upon a wager, the subject matter of which was illegal, and notice given not to pay it over to the winner, it has been allowed to be recovered by the party who made the deposite. Cotton v. Thurland, 5 D. & E. 405 ; Lacaussade v. White, 7 D. & E., as explained in 8 D. &. E. 575. But after a party to a wager against law has lost his bet, and the stakeholder lias paid it over, either by the direction or assent of the plaintiff whe staked the money, he cannot recover it even from the winner. Howson v. Hannock, 8 D. & E. 575. So, if property be left in the hands of a parly to an illegal bet, to become his if ho win it, an aption for its value cannot bo maintained against him, after the bet is lost. M'Cullum v. Gourlay, 8 Johns. Rep. 146. Yet, such winner will not be allowed to recover against a stakeholder of an illegal bet, even upon his accountable receipt, though notice not to pay over do not appear to have been given ; (Bunn v. Riker, 4 Johns. Rep. 426;) and Hoffman, Recorder of New York, 1ms ruled, that although a stakeholder pay over to the winner of an illegal bet, in violation of the notice not so to do, an action cannot be maintained against him by the person making the deposit. Bushman v. Cashman, 1 Esp. Dig. part 1, Amer. edit, by Gould, 25.
      where a statute is made to protect a particular class of persons by avoiding the contracts they enter into with others, as the English statutes against lottery insurances and usury, for the premiums paid in tlio one case, and the excess of interest in the other, an action maybe maintained; (Jacques v. Golightly, 2 Bl. Rep. 1073; Jacques v. Withy, 1 H. Bl. 65; Bosanquet v. Dashwood. Cas temp. Talb. 38;) aliter, where the parties are in pari delicto, by each being of that class against whom the statute is directed. Clark v. Shee, Cowp. 197; Browning v. Morris, Cowp. 790.
      The principle of the decision in the text has been acknowledged in Barnard v. Crane, 1 Tyler, 467. See also Maybin v. Coulon, 4 Dall. 298; Hannay v. Eves, 3 Cranch, 242; 2 Ponb. 6. n. (c).

      Amidst this multiplicity of decisions, not altogether consistent, those of Hoffman and Lord Kenyon seem most consonant to the purity of law. It might, perhaps, have been well if the courts had laid down the broad rule, that for money due, paid, lent, or received, on an illegal contract, or for any other claim arising out of one, by or against parties, privies, or any third persons, a suit cannot be maintained either at 'law or equity.

       As to illegal contracts, &c., see Story on Contracts, p. 105, § 165 and cases cited.

   THOMPSON, J.

delivered the opinion of the court. We think the plaintiff’s demand cannot be supported. Although the caso is somewhat obscurely drawn, we assume, as facts admitted, that the claim possessed by the testator, Pitkin, to the township of land in Luzerne county, in Pennsylvania, was nothing more than what is usually called the Connecticut claim, and that there was an adverse possession under the Pennsylvania title, at the time of the sale made to Maxwell. In this we are warranted, because the counsel on the argument *have so considered the case. Under this statement, the sale to Maxwell was illegal, and would fall under the denomination of maintenance. This court have gone the length of saying they will judicially recognize the situation of that county, and will not enforce contracts relative to the sale of the Connecticut claim. If the sale by Pitkin would have been illegal, we are unable to discover how it could be legalized by his agent, or broker. It is too salutary and well settled a principle to be in any measure infringed, that courts of justice ought not to assist an illegal transaction in any respect. To sustain the present action, would be in some degree ratifying, countenancing and sanctioning an illegal contract. It is a first principle, and not to be touched, that a contract, in order to be binding, must be lawful. Whenever the consideration, which is the ground of the promise, or the promise, which is the effect, or consequence, of the consideration, is unlawful, the whole contract is void. In the present case, the object and consequence of the agreement was the sale of the pretended title. This being illegal the promise to divide the spoil was of course illegal, and not to be enforced. All contracts that have a fraudulent object in view, are void, both at law and in equity. It is also laid down by Powell, in his Treatise on Contracts, as an established principle, that all contracts are void that are of an unfair nature in respect to their influence on third persons, although otherwise as between the parties to them; because if their object be to impose on third persons, the parties to them cannot have remedy at law, or in equity, for they are immoral. If the consideration money for this pretended claim had been paid to the plaintiff, neither a court of law, or equity, would have aided the defendant in recovering it from him. This is, therefore, a case to which ihe maxim melior esl conditio possidentis must be applied, and judgment as in case of nonsuit entered.

LIVINGSTON, J.

I cannot concur in the judgment which has been just delivered: there is no difference among us as to the general rule; but, in my opinion, the facts here are not such as to call for its application to this case. The de-fence is of the most unconscientious nature. The defendant admits he has received a large sum for the plaintiff, *but refuses to refund, because the contract on which -it was paid, although for his benefit, and made at his instance, was illegal: the maxim of “ melixn esi conditio possidentis" is too well settled to be now shaken, although it may well be doubted, whether it was originally intended to apply to any other cases than where the party in possession was regarded as owner of tbe property, until a better title were shown in another. Thus far the rule is salutary, inasmuch, as it gives to possession a proper value and will not permit its being lightly disturbed : bat it has certain!)' been extended to other cases, and if the contract ■which forms the basis of this demand be illegal, or if the plaintiff assisted in imposing on a third person, perhaps he ought not to recover. But from nothing in this case can it be inferred that this contract was illegal, or that any fraud has been practised on Maxwell; it is altogether silent as to the laws of Pennsylvania, where the land lies; and, were it otherwise, it might be a question, how far, in this action-, we could take notice of them, to render invalid the contract between these parties. For aught, therefore, that appears, nothing has been done contrary to the laws of that commonwealth, nor has Maxwell been imposed on. He may at the time have been in possession of tbe lands under Pennsylvania, and have purchased the Connecticut claim, as was lawful for him to do, to quiet his title, or he may now hold the land under Pitkin. In either case, he has received value for the money he paid, and cannot be viewed as an injured person. This presumption is confirmed, by the circumstance of his having paid so large a proportion of the notes which he gave. It not appearing, then, that the contract between Pitkin and Maxwell is illegal, nor that the latter has been deceived, or defrauded, and the defence being of a kind not entitled to much countenance, I think the plaintiff should have judgment.

Judgment of nonsuit.

       See Jackson v. Todd, p. 187, post.


author: Thompson, J.

text:
    Joaquim L. Steinbach against William Ogden.
    NEW-YORK,
    May, 1805.
    Under a count averring a loss by the barratry of the master, it is not incumbent on the assured to prove, that the master was not the owner. It must, if relied on as a defence, be shewn by the under-writer; a fraudulent sale and purchase by the master of a vessel, will not constitute such an ownership as to afford a defence to a claim for a loss by his barratry. A person contracting and dealing with a master who had purchased in his owner’s vessel, in his capacity of master, may recover under a count for barratry, a loss occasioned by the fraudelent conduct of such master.

      THIS was an action upon a policy of Insurance, on the cargo of the sloop Britton, M'Culloch master, on a voyage from Trinidad to New-York, averring the loss to be from the barratry of the master. The subscription, interest, proof of loss and being admitted, a verdict was entered for the plaintiff, subject the opinion of the Court on the following case.
    The vessel, owned by some merchants in the United States, sailed from Norfolk in Virginia, on a voyage to Curracoa, under the command of McCulloch; who, instead of proceeding to his port destination, ran away with her, and went to the Island of St. Barholomew, where he procured a fraudulent survey, under which he sold vessel and cargo at public auction, becoming himself the purchaser of the sloop, but without taking a bill of sale from the vendue-master, who merely gave an account of the sale, stating him to be the purchaser. From St Bartnolomew's he went to Trinidad, and there having, in the character of Captain, contracted with the plaintiff's agent to take in a full freight, signed, as master, regular bills of lading for 244 hogsheads of sugar, and 189 quin-tais of Braziletto, deliverable to the plaintiff in New-York. this he sailed from Curracoa to the Havana, where he embezzled the whole cargo, but wrote from thence, ordering insurance on the vessel, in his own name, as owner.

      Coldcn for the Plaintiff.
    It will be contended on the other side, that M'Culloch was owner, as well as master, and therefore could not commit barratry. We, on the other hand, insist, that in judgment of law, he was master only; his fraudulent acts, barratrous, and the defendant consequently liable. The plaintiff dealt with him as master; he acted in that capacity, both in making the e agreement, and signing the bills .of lading. This, to a shipper, is sufficient to shew he was so, and throw the onus of proving the 1 ° contrary on the defendant. Ross v. Hunter 4 D. & E. 33. Against this, may be urged the fact of the purchase at St. Bartholomew’s. By this, it may be argued, he ceased to be captain, and became owner. The deduction, however, cannot be supported. He had only a fiduciary possession, and it is a settled principle, that a trustee cannot, even by a bona fide sale acquire a title against his cestui que trust. Berry v. Smith. Vern. 60. 34. A fortiori when the sale is fraudulent. That the vessel was originally delivered to M'Culloch with the assent of the owners, will not alter the position. A tortious conversion cannot be rendered less so, because the property converted was voluntarily put into the hands of the wrong-doer by the proprietor. If a horse, hired for a day, be ridden away with, animo furandi, it is, notwithstanding the manual tradition of the owner, a felony. The purchase then by M'Culloch was for the benefit, and on account of his employers. Under the circumstances detailed inthe case, a sale by him would not have passed any title, even to a third person. The reason is obvious; it is out of the general scope of a master’s authority, and extreme necessity alone will warrant such a measure. Ekins v. East India Company. 1 P. W. 395, Abbott, 2 to 4. Without such necessity, he can not even create a lien upon the ship; and that it actually exists, it is the duty of the person, in whose favour the charge is imposed, to enquire. Moll. b.2. c. 1. § 10. Bridgman’s Case, Hob. 12. 2 Marsh. 639. 2 Emer. 434. 441. But allowing the vessel to have been M'Culloch’s, still, as she was entirely freighted by the plaintiff, he was pro hac vice, the owner. Vallejo v. Wheeler, Cowp. 147. It is not necessary that there should be any written contract, or conveyance of the right in the ship for the voyage, to constitute a pro hac vice ownership. It is sufficient if the whole use and occupation of her is disposed of. Nutt v. Bordieu, 3 D. E. 327. Abbott. 82. 148. Ross v. Hunter 4 D. & E. 38. per Buller J.

      Pendleton & Harison contra.
    The principal question is, who, In insurance, is to be deemed the owner ? A general freighter of the whole ship cannot be considered so, when the captain is neither appointed by him, nor under his direction. There must be a control over the vessel to constitute an ownership. The had none here, and with respect to all the world, except perhaps the original proprietors, M’Culloch, by the purchase, was the owner. His signing the bills of lading, is no argument against this; the instrument is no more than a receipt for the goods shipped, and an engagement to carry them. Even a master-owner must thus contract for their conveyance, as there is, according to the established usage of trade, no other mode. -Ross v. Hunter, decided only, that it was hot necessary in an action on a policy averring the loss to be by barratry, to prove, negatively, that the master was not owner. Nor is it requisite that he should be so, with all the rights of a legal title, to prevent a possibility of committing barratry. A color of title is enough, and McCulloch’s was impeachable, only by his employers. As to third persons, it was-valid, for the trustee is accountable to his cestui que trust alone. Indeed as to land the trustee is the legal owner. The authority from Vernon therefore does not apply. In Parish v. Crawford, 2 Sera. 1251, the charterer was held not to be the owner, as the master was not of his appointment. The true criterion to determine the question of ownership, is by enquiring whether the control of the vessel has been parted with.

      Riggs in reply.
    It might perhaps be the safest rule with respect to barratry to say, that the assent which is to render the master’s act not barratrous, ought to be the assent of the owner of the subject matter of insurance. For, no reason can be assigned why the consent of the owner of the ship to the conduct of the master, should take away from the proprietor of the cargo his remedy against the insurer. If however the title of M‘Cul-loch is void against his owners, on account of the fraud, the defendant cannot set it up against us.
   Per curiam delivered by

Thompson, J.

There is nothing in the case, tending to shew, that the agent of Steinbach had any knowledge of the manner in which McCulloch had conducted himself, or that he pretended to be owner of the vessel. All the circumstances stated, lead to the conclusion, that McCulloch was considered by him as master only. He appeared in the character of master. The bill of lading was signed by him as master. The agreement respecting the freight was made with him as-master, as the witness understood. Under this statement I think the agent must be deemed, prima facie at least, as dealing with him in the character of captain, and in no other capacity. addition to which he is described in the policy as master, so that the underwriter contracted to indemnify the plaintiff against tjie j)arra(-ry 0f this very man. It could not be incumbent on the assured to prove that the master was not the owner of the vessel. That would be calling on him to establish a negative. Proof of that fact, which is to operate as a discharge of the underwriter, lies on him ; and if the master was not the owner, it is immaterial, as it respects the present question, who was. It is unnecessary therefore to examine or determine whether the general freighter is tobe considered owner jiro hac vice, or not; for, it being admitted that MCulloch went to the Havana for fraudulent purposes, the underwriter will be liable for the loss by barratry, unless the master was also owner. I am satisfied that M'Culloch could not be considered as the owner. There does not appear to have heen any necessity for selling the vessel at St. Bartholomew’s. Independent of this, however, it is .expressly admitted, that the sale and all the proceedings were fraudulent. Such sale cannot be made the basis for establishing any rights, or exonerating from any responsibilities. It must, in judgment of law, be deemed ifiso facto void. The onus of proving that McCulloch was owner lay on the defendant, and it cannot be tolerated in a court of justice, that a party should be permitted to derive any benefit or advantage from a transaction confessedly founded in fraud. The opinion of the court, therefore is, that the plaintiff ..is entitled to recover as for a total loss.


author: Livingston J.

text:
    Samuel Tooker against Samuel Bennett and John Brower.
    NEW-YORK,
    May 1805.
    The release of one of two joint-makers of a promissory note, under the act giving relief in cases of insolvency, is no discharged of the other.
    ASSUMPSIT against the defendants as joint makers of a promissory note, from which Bennett had been exonerated under act for giving relief in cases of insolvency. The defendants served in their pleas, Bennett pleading his discharge, and Tooker giving notice that he should insist on that discharge, in bar of the suit against himself. The only question made, and now submitted without argument was, whether the discharge of the one would operate as a release to both?
   jPer curiam delivered by

Livingston J.

We perceive no difficulty in this case. By the proceedings under the “ Act for giving re“lief in cases of Insolvency,” Bennett is discharged from “all “debts due at the time of the assignment of his estate, or “contracted for, before that time, though payable afterwards, "and if in prison, from imprisonment,,” now as a joint debt is the debt of each, as well as of all of the partners, he is absolved from such a demand as well as from every other. This is the case in England under the bankrupt laws ; for, although the statutes on this subject say nothing of joint or separate debts, or of joint or separate commissions, all debts due by the bankrupt, whether jointly or separately, are equally discharged by a certificate, and that whether the commission be separate or joint. 3 P. W. 24. Str. 995. 1157. 1 Atk. 67. It is reasonable this should be so, for the assignees of an insolvent partner have a right to possess themselves, not only of his separate estate, but also of his proportion of the joint property, if it be more than sufficient to pay the demands against the partnership — As all his estate then,' whether private, or what he may have in the common stock, passes by his assignment, what reason can be given why he should remain liable for a partnership more than any other demand ? Bennett’s discharge therefore is a good bar to this suit against him. But it can form no defence for Brower. The discharge of one partner under the insolvent act, is no proof of the insolvency of his copartners ; as neither Brower’s separate estate, nor his interest in the joint fund, passed by the assignment of Bennett, it would be difficult to say why he should be exonerated, by the inability of Bennett from paying a debt for which he was before liable to the extent of his whole fortune, or why the present plaintiff should be deprived, in this way, of the security which the law gave him, at the time of contracting the debt, against the person and property of Brower.

It is not possible, that by any reasoning such injustice can be rendered even plausible.

In England the certificate of one partner is declared by statute, not to discharge or release the other, who shall remain liable, as if it had never been obtained. No statute can be necessary to justify our going the length we now do. The obvious good sense and propriety of such a provision, will justify otir adopting the same rule, without waiting for legislative sanction. Judgment must there-tore be entered for the plaintiff against Brower with costs, andin favour of Bennett, who will of course be entitled to have his costs of the plaintiff. This will cause no inconsistency in the record ; a joint suit was properly brought; and it will appear by the record that although the promise was made by both the defendants, yet judgment was recovered against one only, by reason of the discharge _ . ' of the other, since the making of the notes.

         Nadin v. Baitie East, 147. S. P.


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

text:
    James Brandt ex dem, Henry Walton and others, against Obadiah Ogden, and David Ogden.
    NEW-YORK.
    May, 1805.
    Fort Miller falls are the third falls mentioned in the Kayaderosseras patent and the map of the commissioners of that patent, made in 1770—I. not correct.
    EJECTMENT for lands in Washington County. The premises were claimed by the plaintiff, under the Kayaderosseras Patent as being a part of No. 10 in the 25th allotment. The defendant rested his title on the Queensbury Patent. The words in the Kayaderosseras Patent, so far as respects, the controversy, were, “from the "head of the Kayaderosseras thence eight miles more northerly “thence easterly or northeasterly to the third Falls of the Albany “river about twenty miles more or less.” On the present trial it was conceded, thatthe “ eight miles more northerly from the headofthe “ Kayaderosseras,” had been established by a former decision of this court, to run eight miles due north from the head of the Creek. A verdict having been found for the plaintiff, the case now came before the Court on an application for a new trial, as being against the weight of evidence. The only question was, where the closing line of the Kayaderosseras patent was to terminate ? The plaintiff insisted that Baker’s Falls were the concluding point; the defendant, that it ended at those of Port Miller. The grounds on which each side contended, are set forth in the opinions of the court; and as the discussion was merely as to courses and distances, the arguments of counsel would be unintelligible without maps, and are therefore, as involving no one principle of law, and affording no precedent in any other case, unnecessary to be detailed.
   xompkiks , J,

The material facts upon which the plaintiffs relied to establish their construction of the patent were, 1st. That the survey of the Kayaderosseras Pa'ent, made by the commissioners who subdivided it in 1771, adopted Baker's falls as the third falls.

2d. That the survey of Cockburn, the deputy surveyor general, who surveyed the patent, also terminated at Baker’s falls.

3d. That several of the allotments in the KayaderosseraS patent, lying without the line contended for by the defendantsj have been settled uninterruptedly under that patent.

4th. That hirer’s falls are marked on the aforesaid surveys as the third falls ; and that Seth C. Baldwin testified that they had been reputed the third falls by people in the vicinity of them during his acquaintance there, which extended to the last seventeen years.

With respect to the survey of the commissioners, I would remark, that it cannot be of much avail to the plaintiffs, since it was made by persons selected by the proprietors of Kayaderosseras for the purpose, and whose disposition in locating the patent, must obviously have been favorable to the interest of their employers. This is confirmed by the fact of their having embraced in their plan of the patent, much land not included in the survey of Cockburn. Their survey, as well as that of Cockburn, which the commissioners believed to be incorrect, can therefore be of little importance, any further than they comport with the rights of the Patentees, derived from the patent itself.

Neither can the settlements of other allotments, not embraced by a line running to Fort Miller falls, give much aid to the pretensions of the plaintiff, since the lands in question have been settled under the Queensbury patent, which confessedly includes them. The direction of the closing line will vary from that given in the patent, if it terminate at either of the falls ; neither will the distance in either case, exactly conform to twenty miles. The words, as to the distance however, are sufficiently broad to extend to either of those falls, without violation to the patent.

To rebut the conclusion favorable to the plaintiff’s title, deducible from the preceeding facts, the defendants shewed, that the premises in question were embraced in the patent of Queensbury, and were settled and held under that patent. They also proved, by Jive witnesses, that they had been acquainted with Fort Miller falls, for about forty years past, and that those falls were not only during that period generally known and reputed to be the third falls, but that they were so in point of fact.

It is a little remarkable that not a particle of testimony was afforded on the part of the plaintiff, to disprove the latter fact, which appears almost conclusive on the question ; neither is there any contradiction of the reputation of forty years, or the knowledge of the defendants’ witnesses in regard to Fort Miller falls, unless It arise from the testimony of Baldwin. Supposing his tastimony to have been admissible, he is interested in the lands affect by the disputed line, and if he were not, a reputation of seventeen years only, in the vicinity too of Baker’s Balls, a reputation commencing since disputes have originated about the line, and since it became the interest of the Kayderosseras patent proprietors to excite and establish such an opinion, can have but little weight when contrasted with the testimony of the defendants’ witnesses. They prove that Fort Miller Falls have been called and reputed the third falls, from as early a date as the period of the survey of the Kayaderosseras patent; and establish the further undisputed truth, that they are in point of fact the third falls. The question as to the termination of the concluding line of the patent must be settled by a construction of the patent. The evidence on the part of the defendant is decisive to fix its termination at Fort Miller Falls, and not at Baker’s falls, as the jury have determined.

I think therefore the verdict for the plaintiff was against the weight of evidence, and ought to be set aside.

Spencer, J.

Both of the parties claiming by title derived from the government, their pretensions offer a case of strict construction ; their acts, unless as against themselves, can be no further noticed than they shall be found conformable to their rights. The partition by the commissioners, who were nominated by the party interested, cannot prejudice the rights of others. They had no right to hear and determine, but must be viewed as subservient to the interests and wishes of the proprietors. These lines therefore deserve little consideration, unless conformable to the right of the case. In the present instance we are to intend the defendants became the- first possessors under the opposing patent, and thus the only inquiry is, whether the boundaries of the Kayaderosseras patent, which is the senior patent, includes the land in controversy?

If the closing line of this patent be run to the falls, set up by the defendant as the third falls of the Albany river, the premises are excluded. By the case agreed on, between the parties, this line is to be run from the termination of the eighth mile run due north, it is therefore unnecessary to examine whether that line was correctly run or not, as the court cannot but regard the agreement of the parties binding in that respect. There appear to have been five witnesses examined by the defendants, to establish the Fort Miller Falls, to be the third falls in the Albany River. These witnesses testify, that they had known these falls as the third falls, for more than forty years ; they state the Stillwater falls to be the first, Saratoga the second, and the Fort Miller the third falls. The only proof opposed to this, is the map of the commissioners, and the testimony of Seth C. Baldwin, who testified that Baker’s falls, to the northward of Fort Miller, were the third falls, and that a rock there was marked as such, but when or by whom does not appear. He says too, that Baker's falls, as laid down on the commissioners’ map, had been, by reputation for seventeen years past, the third falls; that such was the general sense of the people in that vicinity, and that certain lots, depending on that construction have been settled and held under the Kayaderosseras patent. I have said, and repeat it, that the line run by the commissioners, or the falls adopted by them as the third falls,- cannot conclude the rights of persons claiming under other patents. It is true that the outlines of this patent were run by the deputy of the surveyor general, but so uncertain were the commissioners as to the correctness of some of their lines, that part of the lands were marked, and drawn as disputed lands. The same observation may be made with respect to the running of lines by the deputy surveyor, as was made with respect to the eommissipners, that the claimants under other patents pould not be affected by such running oflines.

The only question before the jury was, which were the falls intended by government,when the Kayaderosseras patent was granted? To illustrate this, there are five witnesses on the part of the defendants speaking from a knowledge, acquired more than forty years ago, and thus going hack to ⅜ time antecedent to the partition. They assign too the most natural and obvious reasons for asserting the fact, by presenting to the jury an enumeration of the other falls' on the river. Opposed to their testimonies, is the single evidence of Mr. Baldwin, who appears from the case, to be interested in lands affected by the runping of this line. In addition to this, his knowledge of the fact in controversy has been acquired within seventeen years. The sense of the neighbour-hood, spoken of by Mr. Baldwin, is entitled to no weight. Opinions of this kind may be well or ill founded- The evidence itself derived from these opinions, was illegal, and therefore deserved no consideration from the jury or the court. The settlement sf lots under the Kayaderosseras patent depending on the construction now .set up by the plaintiff, will not aid the cause ; for it does not appear that these settlements are ancient. The closing line of the patent, can derive no support from the terms “ easterly,” os* “ northeasterly,” because in running from the termination of the . ° eight mile line, to either of the falls, the course 'is some degrees south of east. Nor can the distance of the’last line, reflect any bght on the dispute; because, on either construction, it is about twenty miles. As an auxiliary consideration, entitled to considerable attention, it is to be noticed, that the line contended for by the plaintiff, will twice cross Hudson's River, and yet the patent 'makes no mention of an incident so singular; There must have been, in all probability, a survey preceding the patent, and it is incredible that the surveyor should not have noticed twice passing the river, had it happened.

This cause was pressed on the court as involving the quietude of that part of the community. Whatever in this respect may be the result, it appears forcibly to my mind, that the present verdict is against the decided weight of evidence, and in my opinion it ought to be set aside on payment of costs.

Livingston, J.

This verdict is palpably against the weight of evidence.

Whether the falls at Fort Miller, were the third falls on the Albany ? river was the only question in issue. To establish the affirmative, four witnesses, wholly uninterested, testified, that they had known them as such for more than forty years. That the falls at Still-water were called the first, those at Saratoga the second, and those at Fort Miller the third. Another witness declared, thatlje had known these several falls since the year 1758, and that those of- Fort Miller were “ at that time, and ever since ‘‘ had been called and Jtnown as the third falls.”

Opposed to this, is the testimony.of a single witness, who, after admitting he had an interest in setting ,pp a different place as the third falls, testified, that Baker’s falls were marked as the “ third falls on a rock ; that, as laid down on a certain map, called "the commissioners’ map, they were by reputation, as long as he "was acquainted with them, which was seventeen years, the third "falls, and that such was the general sense of the people living "in the vipinity.”

If there were serious contradictions between these witnesses, the'jury ought to believe, five, their characters not being impeached, rather than one who had a strong interest in swearing as he did; but if every thing which the last witness declares be true, t is very little at variance with what the others had said. It docs pot contradict one.very important item in their testimony, which i s, that in point of fact the third falls are at Fort Miller. If it be true as they swear, and it is uncontradicted, that there are only two falls below fort Miller, and another at that place, how can a fall, further up the river be the third falls ? They also swear that they have known them aa such for more than forty years, while the plaintiffs’ witness speaks of a reputation in a certain vicinity of only seventeen years; which, as well as the mark of the rock he speaks of, may have orginated with the owners of the land in the patent of Kayaderosseras.

But the partition of the patent of Kayaderosseras is relied on, and it is said that the line run by the commissioners in 1771, it being the duty of the surveyor general to attend, ought, together with the acquiescence of government, to put this question at rest. To this the answer is, that this partition is the act of the parties. The commissioners were appointed by them, and that they had no authority to determine definitively. The whole was therefore an ex parte act, from which nothing derogatory to the rights of government can be inferred. Whether the possessions up to this line since 1771, will bar the right of the state, as to lands, not then or yet granted between Baker’s and Port Miller falls, is a question not now before us, because the premises in question are admitted to be contained within the patent of Queensbury which was issued in 1762, and is, so far, an indication of the sense of government unfriendly to the plaintiffs’ pretensions. Nor is there much weight in the observation that this patent is dated several years before the partition in 1771 ; for, there is nothing to shew that government was not as well acquainted with the situation of the third falls, which must have been a place of considerable notoriety, at the former, as at the latter of these periods. As little support can be derived from the circumstance of the line run by Coekburn, terminating at Baker's Falls; because this very line is admitted by the plaintiff himself to be very incorrect, and very essentially so In other parts of it.

Still less weight is there in the argument, when applied to the^e defendants, that certain allotments settled under this partition, have been too long acquiesced in, to be now disturbed'. This partition, as to them, was res inter alios acta, and the acquiescence spoken of can only affect parties interested, and who therefore had a right, but neglected to interfere. The defendants claim no right to the several allotments which, it is alleged, will tie affected by running a line from the termination of the eight mile line, to Fort Miller„ And, so for from any admission by the proprietors, under the Queensbury patent, of the right of the lessors of the plaintiff, or those under whom they claim, to the spot in question, they have, for aught that appears, been in the peaceable possession of it ever since the date of the patent. I have taken no notice of a former decision of this court, settling the mode of rurining the eight mile line from the head of the Kayaderosseras creek, for it is not attempted at present to disturb it; This decision, favorable, as it must be acknowledged to be, to the proprietors under that patent, does not, in my opinion, at all touch the question between these parties.

Upon the whole, as the lands, for which this siiit is brought, are admitted to lie in the patent of Queensbury, if the falls at Fort Miller be the third falls intended ill the patent of Kayaderosseras, I think the evidence to that point Was so very strong and conclusive, that the jury were not warranted in finding as they did, and that therefore, a new trial must be had, on payment of costs by the defendants.

Thompson J.

The course of the eight miles north being conceded, the question made on the trial, and now the subject of litigation was plain, simple, and purely a matter of fact, proper for the determination of a jury. At the circuit, no objection was made to the competency of Seth C. Baldwin, a witness on the part of the plaintiff. Any objections therefore which may now be urged on this ground, come too late. His testimony, I think, stands fortified by numerous circumstance's, that are at variance with the facts stated by the defendants’ witnesses. The verdict cannot be said to have been against evidence ; for there was testimony on both sides ; the one, "contradictory to the other. Determining the credibility of witnesses, and weighing the'force Of circumstances, fall peculiarly within tlie province of a jury; But I cannot say I think the. verdict is against the weight of evidence. It appears that the Kayaderosseras patent was laid out and divided among the patentees in the year 1770, by commissioners appointed under an act of the legislature, directing the surveyor general to rim the out lines of the patent, six weeks notice having been given of the time and place of the commissioners’ meeting, for the purpose, among other things, of affording persons claiming under adjoining patents, an opportunity of objecting to such outlines. These commissioners, and the deputy surveyor general, the agent of the government, who were acting under the sanction of an oath, assumed Baker’s Falls as the third falls intended by the grant. It is not reasonable to presume that this was arbitrarily done, without having endeavoured to ascertain the truth. If Fort Miller falls were at that time so well known as the third falls, as represented by the defendant’s witnesses, it is unaccountable why the line was not run there ; or at least, if it was matter of dispute, it was expressly made the duty of the commissioners to lay out the lands between the two falls as disputed lands. This however, was not done, but they run to, and mark Baker's Falls as the third falls. Cockburn, the deputy surveyor general, although Varying from the commissioners in other respects, and laying down part of the latid included in the commissioners’ map, as disputed land, yet assumes Baker's Falls, as the third falls; and for any thing that appears, the present is the first time this fact has been questioned. All this, in my judgment, is contradictory to, and irreconcileable With the public notoriety spoken of by the defendant’s witnesses, that Fort Miller Falls were the third falls. It is undoubtedly a sound and correct principle, that, in the location of grants, known and established monuments shall control Courses and distances ; but where doubts may exist as to the monuments, courses and distances, if not to govern, ought, at least to be entitled to considerable weight in ascertaining the intention of parties. The course and distance given in the patent, ffohi the place admitted to be the termination of the eight mile line, is easterly, or northeasterly 'twenty miles, more or less, to the third falls. To Baker’s Falls is about twenty miles ; to Fort Miller, would be three miles further. The cbúrsfe to Baker’s Falls, also corresponds nearer with the course given in the patent. In addition, there is the testimony of Baldwin proving a general reputation that Baker's Falls were known as the third falls. The settlement and improvement of a very extensive tract of country, lying to the Uorth of Fort Miller Falls, under the Kayaderosseras patent, re-cognising the line set Up by the plaintiff, is entitled, in my judgment, to great consideration. Six different allotments would be more or less affected, and one entirely excluded by adopting the line set up by the defendants. An alteration under such circumstances would create gVeat confusion arid endless litigation. I think it is fairly to be inferred from the facts stated in the case, that the defendants, or those under whom they claim, must have gone into possession knowing of the- claim of the Kayaderosse-rc.s patentees, and this ought to be an answer to all considerations of hardship. The line set up by the plaintiff was run by the commissioners in 1770. This must have been an act of public notoriety in that part of the country, and it is fair to conclude that there was no actuai adverse possession of the premises in question at that time, or we should have heard of it as a defence in the present action. Besides, the patent under which the defendants claim, was granted in the year, 1762, only nine years before the commissioners’ survey. Although the Queensbury patent may cover the premises in question, yet if there be any interference, there can be no doubt, but that the Kayaderosseras grant, being the oldest, must be first satisfied.

Upon the whole, there is a concurrence of acts and circumstances detailed in the case tending to establish Baker's Falls, as the third falls intended in the patents which, to my mind,'afford a more certain and satisfactory conclusion, than the testimony offered on the part of the defendants. The whole matter was fairly submitted to the jury, and I am not prepared to say they have not made the just conclusion. I am therefore of opinion that the defendants take nothing by their motion*

Kent, C. J.

I concur in the opinion last given, but as the majority of the court entertain different sentiments on this case, there must be a new trial awarded.


author: Tompkins, J.

text:
    John Robert and others Executors of John De Noyelles, against Isaac Garnie.
    NEW-YORK,
    May, 1805.
    Parol evidence is not admissible to shew, from circumstances that the sum expressed in a receipt of 25 years standing was continental money, and therefore amounted to less than the value expressed. A payment for which a receipt is given to a person, in his evidence of a payment on his own account, and that it was not made on account of a debt due from him and another, though there do not appear any directions to apply it to the separate account, especially if such payment be for the exact amount of a balance due from himself, and would overpay the joint debt.

      DEBT on a bond in the penal sum of 2251. dated 17th March 1773, conditioned for the payment of 701. on the 1st of May then next, and 421. 10s. on the 1st of May, 1774.
    At the trial, payment of part of the amount was indorsed on the bond, and for the exact balance with interest, the following receipt was given in evidence. “Received, Haverstraw, 5th of May, 1779, of Isaac Garnie the sum of one hundred and four “pounds, on account of a bond given to the estate of John De "Noyelles, deceased. E. W. Kiers executor.” The plaintiffs’ counsel then offered to prove, that at the time when the receipt was given there was no other circulating medium than continental paper money, which was then very much depreciated; that Kiers had, about that period, received large sums of such currency, and from thence wished to infer, that the money mentioned in the receipt was continental money, and its value far less than the amount specified. This being over-ruled, he offered to prove a joint and several bond to the testator, by Garnie and one Johnson, conditioned for the payment of 201. and insisted he had a right to apply the money in the receipt to the satisfaction of this last bond, as it did not appear that the debtor had directed its application. The judge being against him on this point also, charged the jury to find for the defendant, in favor of whom they accordingly brought in their verdict. The application now made was to set this aside for misdirection.

      Baldwin for the plaintiff,
    urged the same reasons as were used on the trial, citing Goddard v. Cox, 2 Stra. 1194, to shew the creditor’s right to apply.

      Woods and Caines contra,
    not denying the authority, reasoned as in the decision of the court, which was delivered by,
   Tompkins, J.

Two questions are made in this case,

1-Whether the evidence which the plaintiffs offered, relative to the currency, in which the sum of money mentioned in the receipt of E. W. Kiers was probably paid, ought to have been submitted to the Jury?

2-Whether the plaintiffs were at liberty to apply that sum, or a sufficient part of it, to the discharge of the joint bond of the defendant and John Johnson, conditioned for the payment of twenty-pounds?

Although receipts for money are examinable, they ought not to be affected by circumstances so extremely slight, as those which the plaintiffs proposed to prove in this case.

The probability is, that the money mentioned in Kiers’ receipt, if paid in continental money, was received by him at its real value, according to the then depreciated state of that currency.

This receipt was given nearly twenty five years before the trial of the cause, and, after such a lapse of time, it would be extremely mischievous to permit the party, wlipse co-executor had given it, to destroy its operation by light circumstances.

There is no pretence for the plaintiffs to apply the sum of money paid in May, 1779, to the discharge of the bond of Johnson and the defendant; the receipt is for 1041. on account of a bond given to the estate of De Noyelles. There was at that time no one bond clue the testator upon which a sum equal to that paid was due, except the bond upon which this suit is brought, and the sum of 1041. was the precise amount then remaining unpaid upon that bond. This shews that both debtor and creditor Intended at that time to apply the payment to the discharge of this. bond.

I am therefore of opinion that the testimony offered by the plaintiffs, which was over-ruled by the judge, was properly rejected, apd that the defendant ought to retain his verdict.


author: Kent, C. J.

text:
    William Davy against Richard S. Hallett.
    NEW-YORK.
    May, 1805.

      By a valued policy on freight, "at and from" one port to another, and "at and from thence" back to the original port, for which a premium is paid, double to that which would be demanded for the outward voyage the freight to the full amount of the valuation is covered on each voyage, and the insured, on a capture on the return voyage, is entitled to recover the full amount of his policy, without making any deduction for the freight received on the outward risk. On a valued policy on freight, if there be an inchoate right to some, and the transaction bona fide, the value cannot be enquired into. If a ship owner insure his vessel and freight with two sets of underwriters, and on a capture abandon first to those on the vessel and then to those on the freight, after which he takes 50 per cent of his claim on the underwriters on the vessel. and in payment of the other 50, an assignment of their rights in the vessel, he will be entitled to receive the freight, which they would have been entitled to, and to recover, in his own right, from the insurers on the freight, the full amount of his policy, deducting the pro rata freight, earned, previous to the abandonment, in the voyage on which captured

      ASSUMPSIT upon an insurance on the freight of the sloop Hannah, valued at 2000 dollars, “at and from Philadelphia to Omoa “ and Golfo Dulce, and at and from thence to Philadelphia,” at a premium of twenty-two anda half per cent. The facts as they appeared m the case made were these-nln August 1800, the vessel sailed on the voyage insured, and arrived in safety at Golfo Dulce, having earned freight to the amount of 2000 dollars. She there took in a return cargo for Philadelphia, the freight of which was equal to two thousand dollars more, and sailed on her homeward voyage, but was, on the very next day, captured by a British man of war, who carried her into Belize in the Bay of Honduras. There she remained for some time, when her crew were taken out of her, and she was sent under charge of a prize master to Jamaica for trial. Whilst in possession of the captors, an abandonment was duly made of the vessel, cargo and freight, to the respective underwriters. Those on the vessel and cargo accepted the abandonment of the interests they had severally insured; but defendant, who had subscribed the policy on the freight, refused. The sloop and her cargo were afterwards proceeded against in the vice admiralty, and by a decree of that court acquitted, but the claimants condemned in costs to the captors, This sentence being appealed from, the sloop and her cargo were, in conformity to the practice of the admiralty, ordered to be appraised, and restored to the claimants, on their giving security to account for the value, in case the sentence should be reversed. The vessel and cargo were accordingly appraised in pursuance of the decree, security given by two sureties, who took possession of both, and sent them to their correspondents, Messrs. Elliston and Perot of Philadelphia, in whose possession they were at the commencing the present action. The plaintiff, however, on the arrival of the vessel at the quarantine ground, agreed with the underwriters upon her, to be substituted in their place, and to defend the appeal at his own risk and expence, on their paying him fifty per cent. In consequence of this, the money was paid by the insurers on the sloop, who executed a power of authority to Davy, constituting him their agent and attorney, to defend the appeal in their names. By virtue of this authority the plaintiff had, on discharging the advances and expenses on account of the vessel, got possession of her at the time of trial, and had received 2000 dollars, the amount of her return freight. It was admitted the premium on the outward voyage only, would have been about one half of that paid, and that the decree of the vice admiralty had been recently confirmed, but without costs. A verdict being taken for 2245 dollars it was agreed, that if the court should be of opinion the plaintiff was entitled to recover as for a total loss, the proportion of freight earned, which the defendant might be entitled to, if any, should be deducted, and the account adjusted. In case it should be thought the plaintiff was entitled to only a loss, the same to be in like manner adjusted, on such principles as the court might direct, with liberty to either party to turn the facts of the case into a special verdict.

      Hoffman for the plaintiff.
    The first question is as to the true construction of the policy. The defendant contends the valuation is to be thus interpreted; one thousand dollars out, and one thousand home; making, in the whole, the sum of two thousand dollars; one thousand of which was earned on the arrival at Golfo Dulce. We insist that the homeward and outward freight are valued by the instrument at 2000 dollars each. The amount of premium paid is for 2000 dols. round. The only cases at all analogous to this, are insurances on goods out and home. In those the valuation extends to both voyages. The second point will depend on the right to abandon. That was complete; for the loss continued total not only then, but down to the very time of action brought. The assured therefore, at the period of entering into his agreement with the underwriters on the ship, had divested himself of all his interest in the several subjects he had insured. They were fully transferred to the various insurers; and therefore, on the principle of the United Insurance Company and Lenox,

       those on the vessel were entitled to the freight earned after the capture. In this situation the plaintiff, by a fair sale to him, and by relinquishing, one half of his just claim, becomes a bona fide purchaser of the rights of the underwriters, on his vessel. In this capacity, and by a power from them he receives the freight due to the then owners. He now applies to the defendant in his own right, for a loss on a policy to himself. The case states that the proportion of freight to which the defendant may be entitled, shall be deducted from the amount of the verdict. It is not meant however, that there shall be a set-off, that cannot be of what arises after suit commenced. It is introduced only to give the court an opportunity of deciding what pro rata freight the defendant may be entitled to, and up to what time.

      Boyd and Pendleton, contra.
    There can be no doubt that in conscience the plaintiff is not entitled to recover. He has, allowing his own interpretation of the contract, already received the 2000 dollars insured. But the policy was for one entire risk out and home, amounting to two thousand dollars in the whole. This could not be apportioned. Loraine v. Tomlinson, Doug. 585. Nor could the premium, which was for one gross sum. This is one criterion to judge of the durability of the engagement. As therefore the contract was entire, when the abandonment was made, it necessarily transferred the outward freight which had been earned. Instead of this, an attempt is made to confine it, to what was acquired between the time of sailing from Golfo Dulce and the capture. That is, just one day’s freight. But we contend the assured, by his agreement underwriters on the ship, placed himself in his original station, and, having received the full freight, stands, as respects the defendant, exactly as if the capture had never taken place. If the assured has, by the manner in which he has conducted abandonments, deprived us of the freight we have insured, he would be liable to us in an action against him, to the amount of what we might pay. The court therefore will not sanction a recovery in this action, merely to give the defendant a recourse against the plaintiff in another. In Thompson v. Rowcroft, 4 East 34, under a similar abandonment of all the interests insured after a capture, it was held that the insurer on freight might, after payment of a total loss to the insured, recover from him the amount of freight which he had received. It is true in this case, there was an express agreement to pay it over. But that is no more, as we contend, than what the law implies. For whatever is received during the voyage insured, is, after abandonment, to be carried to the credit of the underwriter. 2 Emer. 222. As to the principle of set-off relied on, it cannot be applicable in the present discussion. The case was drawn up to submit all the rights of the parties to the court.

      Harison in reply.
    In some respects the insurance may be considered as indivisible. Had a loss taken place at an early period, there would have been no return of premium. But the contract was, in effect, on two separate voyages, valued, during the whole of each voyage, at 2000 dollars. Had it been on the cargo, and the vessel had arrived at her outward port, the return cargo would have been substituted for the former, and, in case of loss, the anterior voyage would never have been considered. So here the reasoning is the same. The full amount therefore, is what we have a right to claim, without affording to the underwriter any title by our abandonment, to what has been earned in the first voyage. With respect to the deductions, they can be only such, as the defendant Was entitled to, at the time when by the abandonment they were fixed-The general right, of the plaintiff to recover, cannot be affected by what he has received in auter droit; as the substitute of the insurer on the vessel. He is a bona fide purchaser from them, and whether he paid by cash, or a release of a debt due to himself, is immaterial. The freight due to the underwriters on the ship after the capture, was not that which arose out of the original contract between the shipper and plaintiff, but sprung from a meritorious consideration, on a new contract arising out of the old one. Curling v. Long, 1 Bos. and Pull. 637. If any apportionment is to be made of the freight, it must be by deducting the amount of what would be due for one day. Luke v. Lyde, 2 Burr. 888.

       This is the foundation of what are termed short interests. See 1. Lex Mer. Amer. 345.

       See the special verdict in this case, and the reasons of the counsel, on both sides in the court of errors 1 Lex Mer. Amer. 397.

       Whether a premium can be apportioned, depends on whether the risk be at any period suspended. so that the underwriter can say "I am free," and upon the usage of the trade. See Stevenson v. Snow. 3 Burr. 1237. Long v. Allen Park 390. Bermon v. Woolbridge, Doug 781 Meyer v Gregson, Park 389 Tyrie v. Fletcher, Cowp. 666.

   Per curiam, delivered by

Kent, C. J.

This is a case of a valued policy upon freight, and the valuation becomes a very material fact in the consideration of the cause. The plaintiff was owner of vessel, cargo and freight, and had them all fully insured, and the vessel being captured after the return voyage had commenced, he duly abandoned all the subjects to their respective insurers. The insurance was for two thousand dollars in value, of freight; and if, at the time of the total loss, there was an inchoate right to a freight to the amount of the insure anee, the plaintiff must be entitled to recover. This principle was fully established in the cases of Montgomery v. Eggington, 3 D. & E. 362, and Thompson v. Taylor, 6 D. & E. 478. In the present instance, there was, when the vessel was captured, an inchoate freight attached, equal to 2000 dollars. There was some freight already earned when the capture took place, but the amount of it becomes immaterial, as the valuation in the policy precludes inquiry into the value, and this valuation is to be adhered to, if the case be fair and honest between the parties, notwithstanding events in the course of the voyage, may render the loss even advantageous to the insured. Shawe v. Felton, 2 East 109. It is sufficient if there be freight at risk, equal to the sum insured, when the loss happens, and that some freight has been already earned for the insured. If we were to sustain an inquiry into the value of the freight, it would be doing away the effect of "the valued policy.

Seven objections have been stated against the plaintiff’s right of recovery in this case, but it appears to me that they are capable of a sufficient answer.

The abandonment of the vessel took away from the insurer on the freight, the spesrecuperandi, or the chance of an ultimate recovery of the subject; because, as between the insurers on the ship and freight, the claim of the insurer on the ship to the freight, must be admitted to preponderate; and this seems to have been the opinion of Lord Ellenborough in the recent case of Thompson v. Rowcroft, 4 East 34. The abandonment of the ship did not affect the plaintiff’s right to a proportion of the freight oil the return voyage. This was so considered in the case of Lenox v. the United Insurance Company, which was finally determined in the court for the correction of Errors in 1801; and although the court was divided in that case, and the majority of the bench did not concur in any opinion on the merits of the cause, I am not now disposed to question the correctness, and much less the authority of that decision. It Was determined in that case, that Upon abandonment of the vessel, the owner of the freight being also owner of the ship, did not thereby abandon his freight in toto, but that he retained a certain part to be apportioned pro rata itineris, and, consequently, to be carried down to the time when the loss happened. The insured therefore upon the vessel, as between him and his insurer, still retained his right to a ratable freight, and if he has had the precaution to have his freight insured, Í do not see why he may not resort for indemnity to the insurer upon the freight. As long as vessel and freight are re* garded in our latv as distinct subjects of insurance, the inconvenience that I have suggested, .which falls upon the insurer on freight, seems to be inevitable. There is in this case conflicting rights, and some one must yield. The owner of ship and freight, is authorized to insure each sf them distinctly, and the law must have intended, that each of the policies should have a full and effectual operation, according to the established principles of insur-anee. It would be to maintain a paradox to contend, that by an abandonment of the ship in such a case, the remedy upon the policy upon the freight was forever gone. One contract cannot be destroyed by the operation of another Contract inter alios. The insurer upon freight must therefore submit to a total loss in every such case, with the exception of the ratable freight which does not go with the abandonment. The abandonment of the ship, is an act in which he has no direct concern, and his contract tvith the insured contains no control of that act. The loss of any chance of recovery of freight is a consequence incidental merely, to the abandonment of the ship, and arises from meeting with the paramount claims of the insurer on the ship; and he must be left to provide against it by some special contract with the insured, as was done in the case of Thompson v. Rowcroft,

Another objection to the recovery in this case is, that freight, to the amount of 2000 dollars, had already, during the course of the same voyage, been earned and received by the plaintiff. But the present insurance was not upon the totality of freight for the whole voyage, but upon so much freight in that voyage, as would amount to 2000 dollars. The observation, therefore, of Emerigon, 2 Vol. 222, does not apply, when he says, that the freight received by the insured in the course of the circuitous voyage, is received on account of the insurer, if by perils an abandonment becomes necessary. This author is there speaking of insurances upon the whole subject for an entire voyage. The present case is analogous to that cited in 2 Valin 87, and 2 Emer. 39, 40, in which one caused an insurance to be made to the amount of 1000 livres upon goods, on hoard a vessel from America to Marseilles. The vessel sailed with a cargo to the amount of 3000 livres, and discharged two thirds thereof at Cadiz, leaving goods on board for the remainder of the voyage to the amount of the insurance. It is the opinion of these authors, and the same is confirmed by Polhier, that the policy was not thereby reduced two thirds in value, but operated still upon all the cargo on board, to the amount of the 1000 livres. To apportion the less and gain in this case, so as to make the gain of one moiety of the outward freight enure to the insurer, and the loss of °ue moiety of the homeward freight to fall upon the insured, would be an arbitrary rule, and would not give the plaintiff his jus| indemnity. It would be changing the legal operation of this contract, and making it an insurance of one moiety only, of the outward, and one moiety of the homeward freight, instead of an insurance to the amount of the valuation on so much freight pending, when the loss arose. The payment of the double premium is a pretty sure index to the intent of the parties, that the policy should attach on the outward, or homeward freight, according to events. The policy was to be valid and operative, as long as there was aliment to keep it alive.

With respect to the subsequent contract between the plaintiff and the insurer on the vessel, it appears to me not to have any influence on the present demand. It was not a waiver of the abandonment, but a fair re-purchase of the right of redemption of the vessel, for a valuable consideration, and I think the present question ought to be decided in the same manner, as if no such contract and substitution had taken place. The abandonment had been accepted, and the right of property in the vessel absolutely vested in the insurer.

My opinion accordingly is, that the plaintiff is entitled to recover as for a total loss, subject nevertheless to a deduction of the small ratable freight, which did not pass with the abandonment of the ship, to be adjusted according to the principles established in the case of Lenox v. the United Insurance Company, and such is the decision of the court.

Livingston, J. having been concerned, gave no opinion.