author: Livingston, J., Thompson, J.

text:
    Newkerk and Wife and Roosa against C. Newkerk, C. P. Newkerk and Dubois and Wife.
    A devise of “all my right in the patentees’ woods, to my children, in case the same continue to inhabit the town of Hurley, otherwise not,” passes the fee, if there be one in the testator, and is a eon lition subsequent, if it he a condition at all, but is, nt seriib., void, as repugnant to the nature of a fee. It is not a limitation for want of a devise over; and if the devise itself be to tlie testator’s heirs, it is void as a condition; because the devisees themselves would be the persons to take advantage of it. A residuary clause of a testator’s “ whole real estate, except what I have before disposed of,” will not carry an estate previously devised on condition, nor does it operate as a conditional limitation.
    In partition from tlie common pleas of Ulster county. The defendants bad pleaded that the plaintiffs did not hold in common with them, in manner and form, &c., upon which issue was taken, and a verdict rendered by consents subject to the opinion of the court on the following case.
    In 1767, Cornelius Newkerk, deceased, being seized in fee of several undivided portions of land, in a tract called the Patentees’ Bos, or Partners Wood Land Tract, so named from having been originally purchased by nine persons, entered into ^articles of agreement with the then proprietors, by which they mutually covenanted that their respective shares should forever remain uncultivated, and in common among them, their heirs and assigns, “ being residenters in the town of Hurley,” for their respective proper uses, “within the limits of the town of Hurley,” even though partition should be made of the same, “ provided always that they be residenters in the town of Hurley aforesaid, the said parties, each one of them for themselves, and for their respective heirs and assigns, covenanting, granting and agreeing to and with each other, and the heirs and assigns of each other, that they will not give, grant, bargain, sell, convey, or otherwise dispose of their respective right, title, or interest in the said tract or parcel of land, (not now enjoyed in seve-ralty,) to any person or persons not residing in tbe town of Hurley aforesaid.” On the 15th of September, 1787, he duly made and published his last will and testament, dated at his house in Hurley, by which he devised all his “ right in the woods of the patentees, to all his children, and also his son Airy’s son Peter, in case the same continue to inhabit the town of Hurley, otherwise not.” In a subsequent clause, he says: “ It is my will and desire, and I give by these to my before-named two sons, Philip and Cornelius, my whole real estate, except what I have ordered and disposed respecting the woods of the patentees, to be divided between the two, for them, their heirs and assigns forever.”
    In February, 1788, the testator died, leaving two sons, Philip and Cornelius, four daughters, Jannetje, the wife of Benjamin Eoosa, Leah, the wife of Garret Newkerk, Hen-drica, the wife of Cornelius Dumond, Arriantje, the wife of Petrus Dubois, and his grandson Petrus, the son of Airy.
    ■In 1789, by the act of the then colony, the Patentees’ Bos was annexed to Hurley, within which it was not comprehended by the patent and incorporation of that town. In 1793, Philip Newkerk departed this life, leaving issue Cornelius P. Newkerk, Elizabeth, and Maria, who died an infant. Judgment having gone by default against those defendants not mentioned in the title of this suit, the cause came on for trial between those named, when it appeared in evidence that the testator’s house, from whence his will was dated, and where he resided and died, was not, in fact, at that time, within the town of Hurley, but within the Patentees’ Bos, which, however, was generally called the town or village of Hurley. That *his daughters, Leah, the wife of Garret C. Newkerk, and the other plaintiff, Jannetje Boosa, at the period when the will was made, and at that of the testator’s death, were, and ever since have been, inhabitants of the town of Rochester, and not of Harley. That Peter, tbe grandson, was, both when the testator made his will, and when he died, an infant, residing sometimes with his mother, in the town of Kingston, and sometimes with Peter Dubois, in Hurley, but now living in Dutchess county. That Peter Dubois and Arriantje, his wife, from the date of the will to the present time, were residents in the town of Hurley. The question was whether, under these circumstances, the plaintiffs could claim any estate in the Patentees’ Bos, by virtue of the above devise ?

      L. Flmencbrf for the plaintiffs.
    I shall contend, 1. That by the words “all my right,” which the testator has used, a fee is passed; 2. That the inhabitancy required is a condition subsequent; 3. That as there is no limitation over, no estate can be raised on the breach of this condition 4. That the condition is too uncertain to create a forfeiture, and is also repugnant to the nature of the estate, and therefore void. On the first point. In a devise, any words which comprehend all the testator’s interest pass a fee if he has a fee to pass. In the Countess of Bridgewater v. Dulce of Bolton, (1 Salk. 236,) “ all my estate ” was held to carry the fee. So in Bogan v. Jackson, (Cowp. 299,) all “ effects real and personal;” “because,” says Lord Mansfield, “if the words denote the quantum of interest, the whole extent of such his interest passes.” Ibid. 306. The terms here are tantamount; and thus, being a principle settled, it would be dangerous to refine upon them. Barry v. Bdg-worth, 2 P. Wms. 524. The introductory words of this will profess a disposition of the whole of the testator’s interest, and, therefore, must be considered in expounding the meaning of any doubtful expression. Loveacre, ex dem. Mudge, v. Blight et TJx., Cowp.-352. “All personal and real estates” carry everything. Chester v. Chester, 3 P. Wms. 56. If so, why not “all my right?” In Fletcherv, Smiton, (2 D. & B. 656,) Lord Kenyon says, the word “ all ” so effectually passes everything, that a residuary clausa has nothing to operate on. To show whether the inhabi-tancy be a condition precedent or subsequent, we must look at what makes a condition subsequent. “ Where the intent appears that the estate shall be vested till the condition be performed, it shall be a condition subsequent.” *Com. Dig. tit. Condition, C. The forfeiture, if' any, was not to be till after they had
    ceased to “ continue ” to inhabit; not the mere non-resi dence, but the continuance of that non-residence, was to defeat the estate. It was, therefore, a subsequent condition ; for the non-continuance cannot precede the commencement. Plowd. 23, 25; 5 Yin. 77, pi. 32. Time must be allowed to take possession, and begin to inhabit. If a condition depend on a party himself, he has his whole life to perform it. Co. Litt. 308, 309; Thomas v. Howell, Skin. 320. “ A devise to I. S. so long as he shall have issue, is to his death.” Pow. on Dev. 257, 258. It is further manifest that the condition is subsequent, because, as is before observed, the devise of all the testator’s right left no residuum, and as the will purports to be a disposition of the whole estate, the intent was, that every part should pass instantly. “Though, in grants, estates shall not'be till the condition precedent be performed; yet, it is otherwise in a will; for the will shall be guided by the intent of the party.” 5 Yin. 77, pi. 81. It is plain there is not, in the part of the will upon which the present question arises, any limitation over. If, then, there be any, the residuary clause is the source from whence it must spring. Now it is settled, that a devise of a residuum is not a devise over, because the testator has not that in contemplation. Wheeler v. Brigham, 1 Wils. 138. The condition was merely in terrorem, and, therefore, though not complied with, works no injury. Pulling v. .Reddy, lWils. 21. It vested in the devisees, and could not go over to the residuary legatee. Ibid. It cannot be a limitation. To create that, a devise over is necessary, and then, upon non-performance, the ulterior estate instantly vests without entry. Com. Dig. tit. Condition, let. T.; Pow. on Dev. 257, 258. If it be a condition, the heirs must take advantage of it; and here those heirs are the devisees themselves. The testator never meant to disinherit some for the benefit of others. The uncertainty, therefore,- makes it void. It is repugnant also to the nature of the estate, that a fee-simple should be constantly resided on; for this is in effect to prevent its being alienated, and such a condition, all the books agree, would be void, but the estate remain absolute. Co. Litt. 228; Bradley v. Peixoto, 3 Yes. jun. 324. Against this the covenant in the articles of agreement cannot be relied on to show the testator’s intent; and even if it be, we may answer it was but a personal obligation.

      Wmott, contra.
    The testator, at the time of making his will, was under the covenant contained in the articles. He believed them to be valid, whether they are so or not, and they, therefore, may be resorted to for the purpose of explaining what passed in his mind. Before examining the will, I shall lay down some preliminary propositions which, it is presumed, cannot be denied. 1. The intention of the testator is the polar star in the construction of devises, and will be carried into effect, if discoverable, unless against law; 2. No precise form is requisite to show this intent, and when it appears, it will control the words of the will, and be established even against them. Strong v. Cummin, 2 Burr. 770; Evans v. Asthy and others, 8 Burr. 1581. Therefore, in construing a will, less deference is to be paid to authorities than the words of the instrument; 3. Where the taking of an estate depends on the performance of a precedent condition, the estate can never vest until the condition is strictly complied with; Shep. Touch. 126, 129; 4. If the precedent condition is unlawful, against public good, or subversive of the estate, it is void, and the estate can never vest; 5. That if it is the intent of the testator that on a non-performance, the estate is to go to any person except the heir, it shall be a conditional limitation, and not a condition ; Page v Hayward, 11 Mod. 61; 6. That a condition describing the qualification of the person who is to take, is, in its nature, a condition precedent. Pow. on Dev. 247; Oreagh v. Wilson, 2 Yern. 573. The case presents this question, have the plaintiffs any interest? If they have no interest, it is enough for us, whether we have any or not. By the covenant in the articles of agreement, the property in the Patentees’ Bos was to lie uncultivated, as a common, to furnish the residents of Hurley with wood, &c. It would, therefore, benefit no other person; be no more than a com-monable interest in the lands devised, under the restriction of residence contained in the articles. The words made use of show that the • residence of the devisees was peculiarly contemplated. The testator does not say all his undivided interest, or estate, but “ all his right in the Patentees’ Woods.” This was a right of common to be exercised whilst he or his alienees inhabited the town of Hurley. This right was not only distinct from, but might exceed, his estate. The word continue has not anjr particular force. Continue to reside, is no more in common parlance than shall reside. The estate was not intended to *vest till the condition was complied with. Be-siding in Hurley was a personal qualification, which the devisees were to possess before they could take. It was, therefore, a condition precedent. Creagh v. Wilson. On complying with it, the parties would bring themselves within the intent of the testator, who certainly never meant to violate his covenant. The absurdity that would follow from a contrary doctrine, is sufficient to reject it; for the estate would vest one moment, only to be devested the next. But if we err in our first construction, then we say it is a conditional limitation, and not a condition, according to the doctrine in the 5th proposition. For it is plain the testator meant that the devisees should take it as devi-sees, or not at all; because the contrary would defeat the very provision, the devisees and heirs being the same; because, also, tbe residuary clause carries the property. The words are, “ my whole real estate, except what I have ordered and disposed respecting the woods.” This passes the reversion. Lydcott v- Willows, 3 Mod. 229. This shows the testator contemplated the very case which has happened, and, therefore, in neither point of view can the plaintiffs have any claim.

      Hanson, and Van Vechten, in reply.
    Though in the exposition of a will the intention of the testator be the polar star, authorities are the pointers by which we are to be directed in the search. Allowing in the present case that the condition is precedent, the plaintiffs must recover; because, till performed, the property would vest in them as heirs in common with the defendants; for a residuary clause of what is undisposed.of will not operate on an estate previously devised, though upon a precedent impossible condition. The same principle will prevent its being-considered as a conditional limitation. For that can be only by devise over. And if this residuary clause do not pass the property over, there is an end of the conditional limitation. By construing it to be one, the residuary de-visees would take, discharged of the condition the testator seems so anxious to preserve. They are included in the clause on which the question now before the court arises. It was never meant, by the last part of the will, to give them unfettered that which was previously bestowed with a restriction. The reason of imposing any was only to prevent the covenant he had entered into from affecting his children, by making them liable to damages. If the articles operated at all, it was as a mere; personal obligation, for ^breach of which an action would lie. It was to exempt from this that the testator framed his devise in the manner we now see it. We have shown it is not a conditional limitation. If, then, it be a condition, it is void ; because the heirs would have to enter on themselves. It can, at the utmost, be only a condition subsequent, in wbicb entry and notice is necessary. This is not pretended to have been done. On every principle, therefore, the plaintiffs must have j udgment.
   Livingston, J.,

delivered the opinion of the court. This cause was very ably argued, and both parties appeared to admit it was one of considerable difficulty. It may be so, but we were well satisfied on the argument, and have seen no reason to change our opinion since, that the plaintiffs, Leah Newkerk and Jannetje Eoosa, took, under their father’s will, an absolute estate in fee-simple in the premises in question, in common with the other children and grandchild of the devisor, and that, therefore, they were entitled to recover in this suit.

It can hardly be doubted, that a devise of a man’s right in lands will pass all his estate and interest therein, and of course a fee, if he himself have one. Eight is equivalent to all right; and if all his right be devised, what is there left for others ? "Wills, it is known, are favorably expounded for a devisee, to give effect to the devisor’s intention, who, not always being in a situation to obtain professional aid, may not use legal or technical phrases. For this reason words in devises are dispensed with, that are requisite in other instruments. Not only a fee may be thus conveyed, without words of inheritance, and an estate tail without words of procreation, but an estatemay pass by implication. Nay, to give a fee-simple, it is not even necessary to use any words of perpetuity; it is sufficient that it appears to be the testator’s intention to dispose of all his interest. This is implied from the use of the word estate alone. Holdfast v. Marten, 1 D. & E. 411; Fletcher v. Smiton, 2 D. & E. 656; 1 Ves. 228.

Although the word right be not so commonly used as that of estate, and, therefore, we are without decisions as to its operation and effect, there can be no danger in regarding it in legal parlance, at least in wills, as synonymous with the other. If the testator’s intention be a guide, and it be recollected that his own children were the objects of his benevolence, no one can doubt that he considered and used it as such, and that it was his desire the devisees should take a fee in these lands.

As by this disposition, if unconditional, his children took ^nothing more in these premises than they would have had as heirs at law, perhaps it may be altogether void; for, when that is the case, the heir is in by descent, which is a better title than purchase. But we are not disposed to consider the devise void on that account; not only because the defendants have not insisted on it, but more especially because such a determination could have no other tendency than to turn the plaintiffs round to another action, if we should think that, having claimed under a will, they cannot recover as heirs at law.

The effect of tbe condition is next to be considered. By the defendant’s counsel it is insisted, that the residence here mentioned was a condition precedent, which must, therefore, be performed, or complied with, before the estate can vest. There are no technical appropriate terms to distinguish in all cases between conditions precedent and subsequent; for the same words may, at different times, make them the one or the other, according to the different intent of the persons who create them. Cases temp. Talbot, 184. Pow. on Dev. 246. We should be inclined to regard this, if valid, as a condition subsequent. If his children did not inhabit the town of Hurley at the testator’s death, (which was the case with only one of them,) he certainly intended to afford them time to remove there. The estate, then, must have vested immediately on the testator’s death, liable to be defeated by a refusal to reside in the town of Hurley. So also Arriantje Dubois, who alone of the devisees inhabited the town, would take immediately on the testator’s death, but might forfeit it on a removal. Thus, if lands be given to a person on condition of executing a release of all his demands against the devi-sor’s estate within three months after his decease, this is a condition subsequent, and the lands vest in the devisee, to oe defeated or not, according to what may after happen, Avelyn v. Ward, 1 Ves. 420. But it is not very necessary to fix on the class to which this condition belongs, for we think it void, either because of its repugnancy to the estate devised, or as being highly unreasonable, or for its uncertainty, or on account of its being nugatory and inoperative, the same being imposed on the heirs at law, without any limitation or devise over.

It is repugnant to the estate ereated. A grant or devise in fee, on condition that the grantee or devisee shall not alien, is void. 5 Vin. p. 102, pi. 22. Although the law permits a man to direct what shall become of bis property after his decease, *and even to annex conditions, upon the performance of which the party designated shall enjoy it, yet these conditions are not highly favored, and ought not to lay unnecessary, or improper restraints on an heir. In this light, the condition under consideration is not to be endured; for what is it, in the sense of the defendant, but a complete prohibition to alien? If the devisees were always to inhabit the town of Hurley, they could not sell. If they did, were the grantees also to be inhabitants of the same town? Or were the devisees themselves, even after the alienation, to remain there ? If continuing there only while they held the estate were sufficient, they might defeat the testator’s intention, by parting with the land as soon as that situation became irksome to them, unless their assigns were forever to live in that town, which would not only be a great clog on its alienation, but would be entailing a very unsual condition on the owners of this property, and one that was too have no end, which the testator had no right to do.

If there be no contradiction between the devise and the condition, or unnecessary restraint on the devisees, it is to absurd and unreasonable to be countenanced. It is absurd for any man to compel all bis children to live in a'small country village, as the condition of enjoying a piece of wood-land lying there. A thousand better situations might" offer for obtaining a livelihood, or being useful to the public, and when from caprice, or any other motive, choice in this respect, which ought to be free, is denied them, courts ought not to be very solicitous to enforce a direction, which, to say the least of it, betrays more of a whimsical disposition in the testator, than of that sound sense and. understanding which he professes to have enjoyed when he made his will. If conditions in restraint of marriage, generally, are void, as being against the reason and policy of the law, we do not perceive why one so unreasonable as that of confining a man’s residence to a single spot, should not also be void. Again, it is too uncertain and unintelligible to be enforced. What precise ideas are to be affixed to the terms, “ in case the same continue to inhabit the town of Hurley ?” Is the expression equivalent to “ so long as?” We read of an 'estate being granted to a man so long as he was parson of a particular parish, or while he continued unmarried, or until he had made a certain sum out of the rents, but never, until now, heard of lands being granted, in fee-simple, so long as the grantee ^should continue to reside on or near the property. But it may well be doubted whether we have a right to annex to these terms a signification so latitudinary. In case a man continue to inhabit a particular spot, does not necessarily imply that he is always to do so ; for if he continue there only a year after the testator’s death, it will be, to a degree, a compliance with the condition. Once more; what is meant by “ continuing” to inhabit ? Only one of the devisees lived in Hurley at the date of the will, or when the testator died. How, then, were they to continue to inhabit a place, when they were not there at the time when the condition began to operate. But if they all lived in Hurley when their father died, of what duration was their residence there to be? Was it to continue during their lives, whether they sold or not — oí would a shorter continuance there answer ? Thus we perceive some difficulty in arriving at the real intention of the testator, and in ascertaining the meaning of the terms he has used, or the extent of the obligation with which he intended to burden his children, and if that be, .in any degree, the case, it is a good reason for rejecting the condition altogether.

But if neither repugnant to the estate devised, nor absurd and unreasonable, nor uncertain, it is absolutely nugatory, and becomes void on account of the persons on whom it was to operate. These are the right heirs of the testator. If they do not comply with this injunction of residence, what is to become of the estate? Why it will still be theirs in virtue of their relation to the devisor ; for neither the law, nor the will, has designated any other person to take it, or to avail himself of the forfeiture, if any accrued. Whether the devisee of the residue -of an estate generally, will, in any case, control a conditional devise of a particular estate before given, or carry the same to the residuary devisee, if the condition be not complied with, is not now worth inquiring into; for the manner in which the residue is devised by this will, precludes the possibility of such a construction, for the premises in question are expressly excepted, and no condition whatever is imposed on his sons Philip and Cornelius. The testator certainly intended, if any thing, that all his children should reside in Hurley, and not any one in particular. If so, it is absurd to suppose he would absolve Philip and Cornelius (and that by mere implication) any more than his other children, from a condition which he had already annexed to a devise, made to them in common with their brothers and sisters. We *are clearly, therefore, of opinion, that there is no devise over by this will of the wood of the patentees, and this, in a case like this, renders it very unimportant to ascertain whether the condition be valid or not, whether it be precedent or subsequent- in its nature, or whether it he a limitation of the estate to the devisees, so long as they resided in the town of Hurley ; for if. there be no devise over, they cam being themselves heirs at law, forfeit nothing by being elsewhere. We desire, therefore, it may be understood, that we leave it optional with the defendants, to regard the words under consideration as a good and valid condition ; as 'precedent or subsequent, or as a limitation, and that in either and every case, the plaintiffs, in our opinion, are entitled to judgment.

It may be subjoined, that there are no words in this will from which we have a right to infer the testator intended, that those of his children who inhabited the town of Hurley should take this property to the exclusion of the others. If such were his desire, he has not indicated it by any proper expressions, and we have no right to imply it.

No notice has been taken of the agreement of 1767. It may furnish a clew to the testator’s intentions, but still, if he has not expressed them by apt words in some part of the will, we cannot regard them. He may have supposed that his children’s residence in Hurley was necessary to give them a right to the use of his own land, in the wood of the patentees, which, by the way, was incorrect, for that was required only for the purpose of entitling them to carry wood, &c., from the separate property of the other proprietors ; or he may have desired to avoid the penalty, which he supposed would attach, if he disposed of his lands to any person not residing in that town. This is probable ; but the same answer occurs. He ought to have taken care so to express himself, that a court of law, without violating its own rules, or disregarding adjudged cases, might have given effect to his intentions. In a case like this, the testator’s meaning must be collected from the will itself, by attending to the several parts of it, and comparing and considering them together. "Without examining whether a testator’s manifest intent may not control the legal operation, of words which he may use, (a question once greatly agitated in Westminister Hall, in the celebrated case of Perrin v. Blake,) it is sufficient to say that such intention, if it existed, does not appear, as it did in that case, by plain expressions, or necessary implication?, from other parts of the *will, and that if we attend to the instrument itself, without any reference to the agreement, there is no evidence whatever of the intention which the defendants wish to establish, or which would justify a construction of this will different from the one which has already been given, or from the legal operation and effect of the various clauses which relate to this subject. Upon the whole, we think the petitioners, Leah Newkerk and Jannetje Roosa, entitled each to one seventh undivided part of the premises in question, and that the plaintiffs must have judgment accordingly.

We have not examined another question, which was agitated, whether the plaintiffs can have judgment in this action, if their title disclosed at the trial shall appear to be different from that set forth in their petition; for it seems to have been conceded and understood, by both parties, from the manner of making the case, that in the event of our thinking the plaintiffs entitled to any estate under the will, whether for life or in fee, they were to have judgment.

Thompson, J.

There can be no doubt, I think, but that all the interest, whatever it might be, which Cornelius Newkerkheld in the premises, must pass under this clause in his will. There is no limitation over of any interest to which the residuary clause can apply. Still, however, I am unfortunate enough to differ from the court. There are no instruments to which the rule of construing them ought to receive a more liberal application than those of wills. When I read the above clause in this will, either separately, or connected with the other parts of the instrument, I can devise no other solution of the testator’s intention, than that a residence in the town of Hurley was a qualifi ¡ration necessary for the devisees to possess, in order for the estate to vest. It, therefore, must be 'considered in the nature of a condition precedent, which it is incumbent on the plaintiffs to show they have complied with before they are entitled, to take under this will. Whatever reason the testator might have had for imposing this condition is immaterial. There is nothing unlawful in it, nor any thing whereby it can be declared void. I therefore think that no estate vests in the plaintiffs, without a previous residence in the town of Hurley, and of course that they have shown no title to the premises.

Judgment for the plaintiffs.


source: Caselaw Access Project

author: Tompkins, J.

license: Public Domain

text:
    Robinson against The New York Insurance Company.
    Under an agreement to pay a supercargo, on a voyage out and home, a gross sum out of a return cargo, or give him goods out of it to that amount, at his election, in consideration of which, he and his partner engage to sell the return cargo, free of commissions, if the vessel be obliged, on her return, to break up her homeward voyage, and the cargo be sold at the port of necessity, paying commissions to merchants there, the supercargo loses his compensation, though the proceeds of the homeward cargo be partly invested in other articles, which he brings back, and if a policy has been effected on the commissions, it is a total loss, and the insurer liable, as there is no recourse against the owners of the cargo.
    On a policy of insurance on goods, with this clause underwritten : “ This insurance is declared to be upon the interest of William I. Robinson, being the allowance made him, as supercargo, as per agreement made with the owners of the ship Mary.”
    The facts, as they appeared on the special verdict found in the case, were these: The plaintiff, being part owner of the ship Mary and her cargo, contracted with the other owners to go in her to the East Indies, as supercargo, under the .following written agreement: “We the subscribers, owners of the ship Mary, having engaged William I. Rob* inson, as supercargo, on her intended voyage from hence to Batavia, and possibly to Canton, have agreed, in consideration of his undertaking and executing the duties of this trust, to'pay him ten thousand dollars out of the pro^ ceeds of any cargo the ship may bring from Batavia, or to deliver him part of such cargo, to that amount, at the current market price, on arrival here, at his option. But if the ship should proceed to Canton, and the letter of credit with which he will be furnished should be availing, we in that case agree to pay him twelve thousand five hundred dollars, as above, otherwise he is to have no more than ten thousand dollars, the same as if the voyage out had terminated at Batavia, New York,” &c. Signed by the owners, and the house of William and Silvester Robinson, of which the plaintiff was one. In consequence of this contract, the plaintiff and his partner entered into one with the owners, by which they agreed, “ in consideration of the sum to be paid William I. Robinson, to take upon themselves the trouble of the management and sale of the return cargo, from Batavia, or Canton, free from commission, subject to the direction of a majority of the owners of the ship Mary.”
    The mutual compacts being thus concluded, the plaintiff insured his commissions with the defendants, showing them at the same time, the agreement under which they were to arise, and shortly after departed on the proposed voyage.
    The vessel having safely arrived at Batavia, sold her outward lading, which the plaintiff faithfully invested in a return cargo, *and, without proceeding further, set sail for New-York. On her passage she .experienced such severe weather that she was obliged, after consultation with her crew, to bear away 'for St. Christopher’s, and reached that port in a very disabled state. There it was deemed necessary to have a survey taken upon her, and for that purpose, the captain and supercargo applied for, and obtained, a warrant from the admiralty, upon the execution of which she was ordered to be unladen. Her situation was then found to be so bad, that a second warrant was, in a similar manner, asked for, and granted. Upon this, the surveyors thereby appointed made a due return, on oath, “ that having accurately and carefully examined the said ship, and considered of the repairs necessary, they were unanimously of opinion that she could not be repaired for the full value of her when repaired, and that, without particularizing her several damages, it would be dangerous and unsafe to reload her cargo, and proceed with her on her voyage, and that to repair her would be highly detrimental to the interest of the owners, or underwriters. Thus circumstanced, the captain and plaintiff made a joint application for leave to sell, which being accorded, the vessel and cargo were sold in St. Christopher’s under the direction of the plaintiff, by merchants there, who were paid theii commissions. The plaintiff, however, bought in the vessel on account of the owners, and invested part of the proceeds of her cargo (as the laws of the island would not allow of exporting it in any other bottom) in rum and molasses, with which, being a light and buoyant cargo, she arrived, after some trivial repairs, at New-York, in the spring of the year, though inadequate to the voyage at any other season, or with her original lading, unless at an expense of more than her value.
    The owners refusing to pay the plaintiff his commisions, the present action was brought. The abandonment was admitted.

      T. L. Ogden, for the plaintiff.
    The interest the plaintiff acquired in the cargo depended on its safe arrival. The object of the insurance was, to guard against any peril which might prevent the arrival of the subject matter out of which the plaintiff’s interest arose. It is like an insurance on bottomry. If the vessel never reach her port, the underwriter will be liable; if she do, he will be exonerated The same principle governs in the present case. As, therefore, the cargo has not arrived, the plaintiff’s claim to his commissions *has been defeated by an accident insured against, and the policy is forfeited. To know whether the plaintiff is entitled to recover, we must answer this question; has the cargo arrived? For its arrival is the test. The policy is on the cargo, depending on the arrival of the goods. The written memorandum does not affect this position. It is within the principle of Kemp v. Vigne, 1 D. & E. 304, and the plaintiff entitled to recover without reference to the contract. By the terms of it there can be no recourse against the owners, for it is to be taken in connexion with the agreement of the plaintiff and his partner to sell the return cargo. His right against them depended on precedent conditions; on his “ undertaking and executing the duties of his trust.” They were, under the contract, to sell and’ invest the outward cargo, and from those duties, when performed, resulted a third, the selling of the return cargo. Till these were all discharged, the plaintiff could have no recourse against the owners. Their agreement was entire for a gross specific sum, on fulfilling certain duties. They have already paid commissions in St. Christopher’s, and all not to be charged again with a further commission, which they agreed to pay only in consideration of having the return cargo sold free 'of commission. Are they to pay the consideration for a service, and not have the service done for which the consideration is paid ? The advantage to be derived from having the return cargo sold, without a charge for disposing of it, was considered in the amount of what they agreed to allow the plaintiff. The arrival of the cargo from Ba-tavia was contemplated by the owners as a condition precedent to their liability. They looked to profits of the adventure to enable them to pay so large a sum. Of this the plaintiff’s right to be paid in goods is a proof. The loss of these very goods is an interest covered by the policy. As they are lost, the insurer is liable for their amount.

      Hoffman and Harison, contra.
    The case referred to was on a wager policy, and as this is confessedly one upon interest, the authority cited cannot apply; for, was it a wager policy, a technical total loss would give no right against the underwriter. The analogy as to bottomry does not exist, unless the plaintiff can make out that he is entitled to commissions only on the safe arrival of the cargo. The present claim depends on this question : has the plaintiff a right to commission from his employers ? To answer this we must see what are the duties of a supercargo. To sell, invest, and relade. *Beawes, 48. When these things were performed, the plaintiff’s right accrued; he, therefore, was entitled to his commissions at Batavia, where the last duty was discharged. The payment in New-York, and out of the proceeds, were mere circumstances not of the substance of the agreement, but constituting its modal part. 1 Pow. on Oont. 267. It is urged, however, that the intention of the parties was to make the right to the commissions contingent on the event of safé arrival, because the profits of the adventure were looked to as the fund out of which they were to be paid. Suppose there had been no profits ; suppose a loss ; or a destruction by fire after arrival; or a bankruptcy of a vendee to whom it was sold; would these have taken away the plaintiff’s right? But the cargo has in fact arrived, for the proceeds have come to hand¿ The destruction of the subject matter has only been a technical one, as between insurer and insured ; but as between the plaintiff and his employers it has never ceased to exist. The owners have had the benefit of the plaintiff’s services, and there arises a natural equity out of the case, directing a payment by them for the duties he has performed.

      Radcliff, in reply.
    The arguments against considering the arrival and other circumstances mentioned in the contract as conditions precedent, are founded on principles said to apply to the general rights of a supercargo. The contract was entered into to supersede those rights and create others. The plaintiff, to obtain a large compensation, consented to its being contingent; and to protect himself against that contingency he insured. The authority from Powell speaks of time and place being modal, where there is an antecedent debt, upon which the right of payment is founded; not of a right of payment to arise out of a debt to accrue from time and place, according to an original contract. As to the cases supposed, they are not before the court.

         Where an antecedent debt exists, place of payment is only circumstance. Pinchard v. Fowke, Styles, 416. So where a debt is created by the contract itself, in which the place is appointed, The Dutch West-India Bompany v. Jacob Senior Henriques Van Hoses, 1 Stra. 612. Miter, when the debt arises from services at the place. So note the difference.

   Tompkins, J.

delivered the opinion of the court. It .was conceded on the argument of this cause, that the plaintiff had an insurable interest; and that if, by the agreement between him and the owners of the ship Mary, he could not resort to them for the payment of the sum therein stipulated for his compensation, the defendants were liable. Upon the construction, therefore, of that agreement the event of this cause depends.

By the terms of the engagement, as well as by the contemporary *acts of the parties evincive of their intention, we consider the shipowners discharged from any liability to pay the plaintiff the sum agreed upon for his compensation. Instead of commissions, as they are usually understood, a gross sum is agreed to be paid, for the performance of the duties specified in the contract, and no provision is made for a pro rata compensation. The undertaking of W. and S. Robinson to sell the return cargo at New-York, without any allowance therefor, is a part of the consideration for the payment oí the entire sum stipulated to he paid to the plaintiff

The fund out of which the plaintiff was to be paid is also prescribed by the agreement, viz : the proceeds of any cargo the ship might bring from Batavia.” The arrival of the return cargo, therefore, at New-York, so that the plaintiff might receive his earnings out of its proceeds, or exercise the election given Mm by the agreement, to receive an equivalent in goods of the return cargo at the current market price, was an event upon which the owners, according to our construction of the agreement, were to become responsible for the ten thousand dollars.

That this must have been the understanding of the parties in this suit appears by the terms of the policy. If it had been intended to insure commissions only, which the plaintiff would have earned upon completing the purchase of the return cargo, there could have been no necessity for insuring home, which is done, and the premium thereby enhanced.

The return cargo did not arrive at New York; and oí course, the fund out of which the- plaintiff was to be paid failed; and the performance of the duties undertaken bj W. and S. Robinson (which we consider a material part oi the consideration for the entire compensation to be paid to the plaintiff) has been defeated by a total loss of vessel and cargo. We are therefore of opinion the plaintiff cannot have recourse to the shipowners, and is entitled to recover in this suit.

Judgment for the plaintiff.


author: Liyingston, J.,

text:
    *Meredith against Hinsdale.
    1 f by the laws and usages of any country, an L. S. in ink be used to instru' ments instead of seals, such instruments may be declared on in this stata as sealed instruments; therefore, debt on a bond will lie in this court, on a Pennsylvania bond, so signed. If the surname in an obligation vary in the spelling, but not much in the sound, from that in the subscription, the obligor may be sued by the name he has signed, without an alias dictus as to the name in the deed.
    Debt on a bond executed in Pennsylvania. On production of the instrument, it appeared that, instead of being sealed with wafer or wax, there was an ink seal, or mark in ink, of L. S. in the locus sigilli, and that in the body of the deed the obligor was described by the name of Hins-dall, but in the signature it was spelt Hinsdale, by which name he was sued. A verdict having been taken for the plaintiff by consent, with an agreement to enter a nonsuit if the opinion of the court should be against him, the case. was submitted to them without argument on these points; 1. Whether an action of debt can be maintained on an instrument not sealed ; 2. Whether the defendant ought not to have been sued by the name in the body of the bond ?

      Hyckman v. Shotbolt, 8 Dyer, 279, was cited for tlie defendant. Lines v. Dunbp, 8 D. &-E. 595, for the plaintiff.

       Debt was brought in the C. B. in England, upon a bond executed in the same manner as that in the text; it was urged that the action could not be maintained, as the declaration was in the usual form of those on bonds, averring it to have been made and sealed by the defendant, and containing the usual proferí; without deciding the point, the court recommended the defendant to accede to the terms which the plaintiff had proposed, of taking judgment without costs, and the suit wa.s compromised accordingly. Adam v. Kerr, 1 Bos. & Pull. 360. But the principle of Meredith v. Hinsdale has been very much shaken by the decision in Warren v. Lynch, 5 Johns. Rep. 231, in which assv/mpsit was held to be maintainable on a note with an ink seal made in Virginia, though it was in evidence that such notes were there regarded as sealed instruments. A different construction on actions of this sort appears to bo entertained in Westminster Hall. On a bond executed m Scotland, by the laws of which country it is assignable, and treated as a chose in action, the assignee may bring assumpsit. Imes v. Dunlop, 8 D. & E. 595.

   Liyingston, J.,

delivered the opinion of-the court. The principal question is, shall an instrument purporting to be a bond, and in its usual form and terms, delivered also as the maker’s deed, not be considered as a specialty, because the L. S. are affixed to his name' instead of being sealed with wax or wafer ?

However ancient the use of seals, as a mark of authenticity to- instruments, may be, or to whatever cause their origin may be ascribed, it is certain that in modern times a private seal is. not regarded as evidence of truth, or of belonging to the party to whose signature it is affixed, but that men promiscuously use each other’s seals without attention to the impression or coat of arms. Thus, it is no common thing to see a seal, containing the device, arms, and perhaps name, of one person, used to authenticate the instalment of another. If it be not necessary, then, that in sealing a deed, the grantor should-affix, his own, but may adopt the seal of a stranger, why should it be exacted that the materials on which the impression is mede should be of wax, wafer, or of any other particular composition? Why should not any impression or mark answer as well as the common mode of sealing, provided it be durable, whether it be stamped on the paper itself, or on something laid upon it, if it be made as a solemn act of confirmation, and deliberately acknowledged as the seal of the party making it ? Why, then, may not ink, the mark of *which will last full as long as any made on wax or wafers, be used as well as they ? -But, without giving an opinion on a point not before us, and which might seem to encourage an innovation in the mode of sealing, we all think that this instrument being executed in Pennsylvania, according to the laws and usages of which state, sanctioned by a decision of its supreme court, such form of sealing is as valid to constitute a deed or specialty as if wax or wafer had been applied, it ought to be received as such here, and of course, that an action of debt will lie on it in this court.

On the other point, which regards the misnomer, we think there is no essential difference between the name in the bond and the one by which it is subscribed. The variance arises from a little misspelling, which produces scarcely any change in pronunciation. The sound of both names is nearly alike. In the case cited from Dyer, an entire wrong Christian name (John for William) was inserted in a bond, which the obligor had signed by his true baptismal name, and by this he was sued, but it was there held that he should have been arrested by the name in the bond, with an alias dictus as to the name by which it was executed. This may be good law, but as the reason and common sense of it are not very palpable, and as this is not the case of a wrong Christian name, but of a trifling misspelling of a surname, we do not think it presents any obstacle to our giving judgment for the plaintiff.

Judgment for the plaintiff.

         Which were proved at the trial by the testimony of a counsellor at law residing in Pennsylvania.


author: Spenueb, J.

text:
    Jackson, ex dem. Donaldson, against Lucett.
    The book of the judge of the court of probates, containing the record of the probate of a will, may be given in evidence in ejectment, if it be proved that the original will is lost. Poplope’s Kill, and four chains on each side of it, to a pond of water, over the mountains, and four chains round it, are in the grant of Staats patent. The west line of Staats patent is a lina twenty chains from the river Hudson, from the northwest course of the patent to the head of the Assinnapainck, not in a straight line, but in such a line as that some part of the river may from every point of the line be within 20 chains, though other parts may be further from it.
    Ejectment for lands in the county of Orange, claimed by the plaintiff, under the Bear Hill patent, and by the defendant under the one to Staats. The facts, as they appeared on the case made, were thfese: ■
    In 1712, a patent was granted to Samuel Staats and his heirs forever, of a certain tract of land in the county of Orange, “ Beginning on the west side of Hudson’s river, just, against Anthony’s Hose, at the mouth of a small rivulet, called by the Indians Assinnapáinck, and thence up Hudson’s river, as it runs, a northeast course two hundred chains, which is about four chains to the northward of Prince’s Falls, thence up into the woods northwest twenty chains, to the ^mountain, thence along the said mountain parallel with Hudson’s river, to the head of the said Assinnapainck, thence down the said rivulet, as it runs, to Hudson’s river to the place where it first began, together with a small rock isle, and a small piece of boggy meadow, called John Canton Hook, all which together contain four hundred acres, English measure, all rocks and stones, very little timber or firewood, bounded to the south by the widow Courtland or Assinnapainck rivulet, and the pond, west by- the mountains, north by land unsurveyed, and east by Hudson’s river, together with a small slip of land, four chains broad on each side of a fall of water that falls into a small run of water that comes into Hudson’s river, just below the meadow, at the said John Canton Hook, and up against the stream of the said fall of water, over the top of the said mountain, to a pond of water, and round the said pond, keeping still the said breadth of four chains broad.”
    In 1743, a patent, since called the Bear Hill patent, issued in favor of Richard Bradley, 'the then attorney-general for “ a certain tract or parcel of land, lying and being in the county of Orange, on the west side of Hudson’s river, (and within the bounds of the land formerly granted to one Captain John Evans, the patent whereof has since been vacated, and the lands reassumed,) beginning on the north side of a certain brook or creek in the Highlands, called Poplope’s Kill, (falling into Hudson’s river, opposite Anthony’s Nose,) where the line of the west bounds of the land there, formerly granted to Samuel Staats, crosses the-said brook or creek, and runs thence north twenty-eight degrees east, along the said line four chains, then north fifty-five degrees west forty-nine chains, then west thirty-one chains, then south one hundred and seventeen chains, to a certain creek (or run of water) on the west side of a certain meadow called Salisbury meadow, then down along the said creek (or run of water) as it runs to Hudson’s river aforesaid, then up along the said river, as it runs, to the said lands granted to Samuel Staats, then along the bounds there of the same lands to the place where this tract first began, containing eight hundred acres besides the usual allowance for highways, in which last-mentioned tract of land all the said Bear Hill, and part of the said Poplope’s Kill (or Creek) and part of the lands thereto adjoining, remaining yet unpatented, are included.” Bradley, by lease and release, for good consideration, conveyed *to one Roger Tompkins the Bear Hill patent, “ saving and excepting all the said Pop-lope’s Kill, or brook, and all the falls of water therein, and all those lands which lie on each side of the said Poplope’s Kill or brook, within the distance of four chains and a half from the said kill or brook, all the way the same runs through the above released lands, or any part or parcel thereof.” Some time after executing the above conveyance Bradley died, having first duly made and published his will, in which he made no particular mention of the premises, but, after some specific legacies, “ devised all the rest and residue of his estate, both real and personal, whatsoever, to his wife, Elizabeth Bradley, with full power and authority to grant and convey the fee-simple thereof.” In May, 1760, Elizabeth Bradley, by bargain and sale, reciting the deed from her husband to Tompkins, and the reservation therein, in consideration of five shillings, conveyed in totidem verbis, to (William Donaldson, the father of the lessor of the plaintiff, the Poplope’s Kill and land on each side of it, as the same were reserved in the release of Richard Bradley. The patents being admitted, the plaintiff offered, at the trial of the cause, to establish the will of the testator, by the record of the probate in the book of the judge of the court of probates, and showed by evidence that the original will could not be found either in the office of the surrogates- of New York or of Albany. An objection to the reception of this testimony was made and overruled. The conveyance to Donaldson was then substantiated, and the plaintiff called a witness who testified, that if a straight line parallel to the Hudson, or northeast course of the Staats patent, was run from the termination of the northwest course to the head of the Assinnapainck, Bradley’s grant would include the premises in question, but then the line would cross the Poplope’s Kill at only about five chains from the Hudson’s river. That John Canton Hook is an island to the north of Prince’s Palls, on a meadow of about five acres, which joins the land adjacent to Prince’s Palls. That no other lands were known by that name, and that a part of the defendant’s improvements, which were in his possession, were more than 20 chains from the Hudson, or the mouth of Poplope’s Kill. This the plaintiff insisted was not the run of water mentioned in the Staats patent, and the premises being on the Poplope’s Kill, passed by the grant to Bradley, and being reserved in the deed to *Tompkins, were afterwards conveyed to the father of the lessor of the plaintiff, by Elizabeth Bradley, to whom they were devised by the residuary clause in the will of her husband. 'The defendant adduced testimony tending to show an adverse possession, which it is unnecessary to detail; and from the evidence of one witness, who said John Canton Hook extended to the mouth of the Póplope’s Kill, contended the premises were 'within the limits of the subsidiary grant in the Staats oatent, the run of water there mentioned being the Pop-lope’s Kill, and that the line to bé'ru-n from the end of the northwest course of the Staats patent, ought to be a line parallel to the Hudson, in all its sinuosities, so as to be al ways twenty chains distant from the river. The judge having charged for the defendant, the jury found a verdict in his favor, and that the Poplope’s Kill was the stream contemplated in the Staats patent, by which four chains on each side that stream were granted.

      Colden moved to set aside the verdict,
    as being against evidence. He argued from the impossibility of running the west line of Staats patent exactly parallel to the sinuo sities of the Hudson: and, with respect to the propriety of receiving the record of the probate of Bradley’s will, he laid down these positions: When an original instrument is not found, where by law it ought to be, it must be presumed to be lost. That slight evidence of the loss of a paper is sufficient. Livingston v. Rogers, 1 Caines’ Cases in Error, 27. That there is a distinction between the record of the probate, and the probate or letters testamentary, which are no more than a copy of that record. The first is evidence, the second not. See Doe v. Calvert, 2 Campb. 889, evidence of the original will being lost, the probate held inadmissible to prove its contents. 1 Gilb. Law Ev. by Loft, 70 ; Pow. on Dev. 706; Skin. 174; 1 Ld. Raym. 731.

      Smith, contra,
    insisted that the proof of the loss-of the original will was not sufficient, and that the west line of the Staats patent must be nowhere less than 20 chains from the Hudson. The plaintiff’s construction is, therefore, erroneous, and the verdict of the jury conclusive.
   Spenueb, J.

delivered the opinion of the court. In our view of this case, it is unnecessary to enter into minute consideration of the evidence as to the adverse possession of the defendant, or the situation of John Canton Hook, or the probabilities whether Prince’s Palis or Poplope’s Kill were intended by the subsidiary grant in the Staats patent, The premises in question lie on Poplope’s Kill, and it appears to us the plaintiff failed *in the outset, in locating the premises within the patent to Bradley. The will we consider as properly in evidence. The facts proved were sufficient to induce a presumption of the loss of the original, and on the authority of the case of Livingston v. Rogers, decided in the court for the correction of errors, when evidence sufficient to induce the presumption of a loss of a deed is exhibited, either parol proof may be given of the contents, or a copy may be received. We are satisfied, therefore, as to the plaintiff’s deduction of title, and shall rest our opinion solely on his locating that title. Staats patent is the anterior one, and must be first satisfied. It begins at the mouth of the As-sinnapainck, and then runs up the river, as it runs, four chains'to the north of Prince’s Palis, then into the woods northwest twenty chains to the mountains, then along the said mountains parallel with the river to the head of the Assinnapainck, then down the same to the place of beginning. The plaintiff’s surveyor, to ascertain this tract, ran a. straight line from the termination of the twenty chains mentioned in Staat’s second course, to the head of the As-sinnapainck, disregarding the expressions in the patent, which required him to consider the twbhty chains as terminated at the mountains, and to run along the mountains, and parallel with the river. It is in vain that the plaintiff proved that some part of the defendant’s possessions were more than twenty chains from the river, because the distance of chains is to be rejected where an object is pointed out, and because too in running lines parallel with a river it is only requisite that the distance, where that is to control, should be such that the river in some one point is not further off than is required. In other words, the west-line of Staats patent, without reference to the mountains, if run parallel with the general course of the river, might, in some places, be at a greater distance than the twenty chains, and still be correctly run. In our opinion, therefore, the plaintiff wholly failed in showing himself entitled to any part of the lands in the defendant’s possession. As to the fact whether the Poplope’s Kill was the run of water intended in the second tract granted to Staats, it was a question fairly submitted to the jury, and the court can see no reason for disturbing their verdict in that respect. On the whole, we are clearly of opinion that on no principle is the plaintiff entitled to a new trial. He, therefore takes nothing by his motion.

Hew trial refused.

        Ante, 177. The same principle adopted in the location of the Hosiek patent. Jackson, ex dem. Quackenbush, v. Dennis.


text:
    *Jackson, ex dem. Jackway and Russell, against Stiles; Williams, tenant.
    If a person be admitted defendant in ejectment, and keep out of the -way to avoid service of the ca. sa. against the casual ejector, the court will grant a rule to show cause why an attachment should not issue, of which service at the house of the defendant will be sufficient.
    It was ruled, that if a person be admitted to defend on payment of costs, and, after entering into the consent rule, keep out of the way to avoid being served with a copy of the ca. sa. against the casual ejector, a rule will be granted to show cause why an attachment should not go against aim, and that service of that rule at the defendant’s house shall be sufficient.


author: Per Owriam.

text:
    Kane and Kane against Scofield.
    If the endorsement of a firm be stated in a declaration on a bill, or note to be made to them, as persons “ using the name, style, and firm,” endorsed, and that they “ endorsed the said note, the proper handwriting 'of one of them, in their said copartnership name, style, and firm, being to such endorsement subscribed,” it is good on general demurrer. To prevent a demurrer’s being overruled as frivolous, there must appear a color for opposition; it is not enough for counsel to merely say he will oppose When a reason for not noticing for the first day of term appears on the face of the record, there need not be any excuse shown by affidavit.
    The declaration in this case stated the endorsement of a promissory note to a firm whose surnames only had been used, in the following manner : “ to certain persons using the name, style, and firm of Willoughby & Weston,” and it afterwards stated their endorsement to the plaintiffs rhus: “ And the said persons so using the name, style, and firm of Willoughby & Weston endorsed the said'note, the prmier handwriting of one of them, in their said copartner ship name, style, and firm, being to such endorsement subscribed.” To this the defendant put in a general demurrer:
    Hopkins, on a notice of motion for the 11th, moved to overrule it as frivolous, and claimed on that account a priority to other causes entered for argument.
    Caines, contra, insisted,
    that the right of bringing on a demurrer, in preference to other causes set down for argument, applied only to cases where no opposition was made. IF Cabe v. WKay, ante, 100, in August, last. That at all events the notioe was bad, being for the 11th instead of the first day of term.

      HqpJcms, in reply.
    The demurrer book was not made up till the first day; the caption is of this term.

         The time at which a question on demurrer shall be deemed to arise, shall be the day the joinder was received by the party den arring. 3d Rule, Jan. 1199. Cole. Ca. 14.

   Per Owriam.

By the opposition of the case cited, is not intended the mere saying of counsel that they oppose; it must *be such as has at least a color or resemblance of reality. The notice could not be for the first day. It appears by the record that it was not till then that there was a joinder in demurrer.

Judgment for the plaintiff.

IS". B. — It was ruled in this case, that where the reason of not noticing for the first day of term appears on the face of the record, no affidavit in excuse need be made.


author: Kent, Ch. J. Kent, Ch. J.

text:
    Turman against Haskin.
    A promissory note, payable on demand, if negotiated by the payee a long time after made, is, in the hands of his endorsee, subject to all the equities to which it would have been liable in the hands of the payee himself. What shall be a reasonable time for demanding payment of a note payable on demand, is, when the facts are agreed on, matter of law. If a debtor, for the benefit of all creditors, give to trustees a bond to the amount of all his debts, on which judgment is recovered, and he after-wards give a note to an individual creditor for the amount of his separate debt, such note will be satisfied by such creditor’s discharging the debtor from execution on the judgment issued at the request of the creditor, and the assent of the trustees to the discharge will be implied. A plea in bar, admitting the note declared on, cannot depart from the venue in the declaration, and need not therefore give one. In all cases of demurrer, if it be _~.ot a frivolous one, the court will, even after judgment pronounced, give leave to withdraw it, ¿tad plead issuably, if asked for during the term in which judgment was given.
    On demurrer. Tbe plaintiff declared against the defendant, as maker of a promissory note, dated on the 19th of July, 1793, payable on demand to "William Buckle 01 order, and by him, on the same day, endorsed to the plaintiff. To this the defendant pleaded, 1st. Non assumpsit, 2d. The statute of limitations; 3d. That he was, on the first day of January, 1793, indebted to Buckle in the sum for which the note was made, and on that day executed a bond to Anthony Franklin, Joseph Bird, and Edmund Prior, for £9,000 for and on account of the money due to Buckle, and of all other debts which he, the defendant, owed; upon which bond the obligees, in April term, 1793, recovered judgment against him, averring that the note was made and delivered to Buckle, for the same sum of money as was due to him on the first of January, 1793, as aforesaid, that the judgment exceeded the amount of everything owed by the defendant, that the above sum due to Buckle was part of the £9,000, for which debt Buckle did, on the first of August, 1793, accept the judgment in full satisfaction, and on the next day caused a ca. sa. to be sued out thereon, upon which the defendant was taken, and was afterwards, on the first of January, 1795, by consent of Buckle, discharged therefrom,.since which time he negotiated the note to the plaintiff.
    Demurrer inde, assigning for causes, 1st. That the defendant did not allege that the bond of the first of January, 1793, was given and executed at the request or by the consent of Buckle, nor that it was agreed between them that the bond should cancel the debt due from the defendant to Buckle; 2d. That it did not appear that the bond was executed to Franklin, Bird, and Prior, as trustees for the creditors of the defendant generally, or for Buckle in particular; 3d. That it appeared the note was made after the execution of the bond and judgment entered thereon; 4th. That the note being negotiated, and negotiated to the plaintiff, cannot be defeated, *or controlled by any agreement between the defendant and Buckle; 5th. That the judgment was alleged to have exceeded the whole amount of the debts owing by the do fendant, but it is not alleged that the sum inserted in the condition of the bond exceeded the same • 6th. That the plea is uncertain, argumentative, not issuable, and wants form.

      Harison, in support of the demurrer.
    Though the whole plea is defective and informal, I shall confine myself to chat alone which is matter of substance. The declaration states a note payable on demand. The plea sets forth certain transactions and dates, '‘since which time” the note was negotiated. As between the maker and payee, these things might be material, but against an innocent endorsee, for a valuable consideration, they can have no effect. The .note is of a nature which cannot be supposed to be dishonored after any lapse of time short of the statute of limitations. There is no period fixed by law for the presentment of notes payable on demand. When left with the payee, after the circumstances relied on by the defendant, it enabled the holder to pass it away in-the course of business, and if so done, it is good against the maker. The cases to the contrary arise on notes payable after date, and if negotiated beyond the period when due, the law allows a presumption that they have been dishonored. But there is nothing on this instrument to show any such time had passed. Therefore, on this plea, the court cannot decide what is a reasonable time for the negotiation of this note. It is a fact which ought, under the direction of the court, to have been submitted for the determination of the jury. The, custom is, to consider these notes binding till demanded. Admitting, therefore, that the taking in execution and subsequent discharge would have been a satisfaction of the note, as between Buckle and Haskin, the point to be tried is, when was it negotiated? Was it within a reasonable period ? This was the fact that ought to have been laid before the court with all the circumstances which would have made it triable. Time and place ought to have oeen shown. The latter, because there ought to be a place from whence tbe venue would arise. 6 Mod. 222 ; 3 Salk. 881. Tbe plea consequently is bad altogether. It may be said that the venue laid in the declaration cannot be departed from. . This, however, does not supersede the necessity of laying a venue, though it be the same. This being a defect in substance is available of, though not specially assigned.

      Biker, contra.
    The special causes are not true; therefore, the whole turns on the general demurrer. We contend, 1. That the acceptance of a bond or higher security merges and extinguishes a note; 2. That the discharge of the defendant from execution, by the consent of Buckle, satisfied the judgment; 3. That the maker of a promissory note payable on demand, having satisfied it, may urge that satisfaction against a holder taking it long after made ; in short, that on this point there is no difference between a note payable on demand, and one payable after date. On the first point, Boades v. Barnes, 1 Burr. 9.
    Kent, Oh. J. Go to your third point.

      Biker. In Banks v. Colwell, cited 1 D. & E., Buller, J, in an action by the holder against the maker of a promissory note, endorsed eighteen months after it was made, allowed the defendant to show the consideration was illegal, and nonsuited the plaintiff, though no privity was brought home to him. This is because a person thus taking a note receives it subject to all the equities the maker may be entitled to. This principle is acknowledged, in Chitty, 114, to be applicable equally to checks and bills payable on demand. Lord Kenyon, in Boehm v. Sterling, 7 D. & E. 430, admits he once thought there was a distinction, in this respect, between paper payable on demand, and that which is so after date; but, he adds, “ on further consideration, I do not think that distinction well founded.” _n
      Saslcin v. Seaman, (since reported 2 Johns. Cas. 195) January, 1801, this court recognized the same doctrine. The only difference between the cases is, that the one cited was on a sealed note. As to tbe venue the exception cannot hold.

      Harison, in reply.
    Where the instrument is payable on demand, the negotiation must be attended with suspicious circumstances, even though the transfer be long after the date, in order to allow of any equities against the holder. If the paper be payable after date, the time for which drawn being expired is in itself a cause for suspicion. It is from thence to be presumed the bill or note has been dishonored. When the payment is on demand, this implication cannot arise on the face of the instrument, and circumstances, therefore, must be called in. In the case before Buller, J., which was only a nisi prim decision, the judge told the jury they ought, from the evidence, to presume against the plaintiff. (Buller, J. nonsuited him.) With the distinctions now laid down all the English authorities will be reconciled. Had there been a verdict, then indeed the objection as to the want of a venue *would not hold. But as this is a case of demurrer, it is not helped by the statute of jeofails, and must be fatal against the defendant.
   Kent, Ch. J.

delivered the opinion of the court. The two objections to this plea, which require consideration, are, 1. That the plaintiff being an innocent endorsee without notice, is not affected by the transactions which took place between Buckle and the defendant; 2. That there is no venue in that part of the plea, alleging the time when the note was negotiated. As to the first, it is a general rule, that a note payable on demand must be presented for payment within a reasonable time, or it will be considered as a note out of time, and dishonored. Chitty, 114,. 146. Wbat is a reasonable time is a question of law, if tbe facts be agreed on. Tindal v. Brown, 1 D. & E. 168. In tbe present case we are to assume it as a fact, tbat the note was not negotiated to tbe plaintiff until after tbe first of January, 1795 ; or near eighteen months from tbe period when it was given. This fact is averred in tbe plea, and of course admitted by tbe demurrer. . This lapse of time must clearly be considered as placing tbe note in the situation of one dúe, and dishonored, and as imposing on tbe endorsee tbe same risk. No person of common prudence will take such a note without inquiry concerning tbe occasion of its being so long outstanding, and it is in-umbent on him to satisfy himself tbat it is good. He takes it on tbe credit of tbe person from whom be receives it. Tbe case of Banks v. Colwell, cited in 3 D. & E., is in point. Tbe judge in that case allowed the maker to impeach tbe consideration as being a note negotiated after it was due, and sufficiently suspicious to throw tbe risk on tbe endorsee. This decision bf Buller, J. was cited and sanctioned by tbe court of K. B. in tbe case of Brown v. Davies, 3 D. & E. 80. If the defendant here be allowed to set up tbe same defence as be would have done if Buckle was tbe defendant, tbe facts stated in tbe plea constitute a valid defence. They are embraced by tbe decision of this court, in tbe case of Seaman v. Haskin, January term, 1801, in which a plea, containing the same facts in substance was held good. It was there determined, that as a cestuy que trust, bad affirmed tbe trust, accepted the judgment in satisfaction of his debt, and exercised the power of it by charging tbe defendant in execution, and afterwards discharging him, the assent of the trustees was to be intended. On the second point, that the want *of a venue, in that part of the plea which avers the time of the endorsement, is a defect in substance, and bad on demurrer, without being specially assigned, we are of opinion it is, in the present case, but matter of form; because the plea cannot vary from the place in the declaration, when the nature of the defence does not otherwise require it. 3 Lev. 113 ; Oom. Dig. tit. Pleader, E. 4. As the defendant must, therefore, have followed the venue of the plaintiff, it appears to me it can only be matter of form, and is not essential to the right of the case, on which depends the distinction between matter of form and matter of substancu Hob. 233. Judgment ought, therefore, to be for the defendant.

Hanson. We have, then, to ask leave of the court to withdraw the demurrer and take issue on the fact.

Kent, Ch. J.

Take it; for it is allowable in all cases where the demurrer is not frivolous, if applied for in the same term.

Judgment for the defendant, with leave to withdraw the demurrer and plead issuably. '

       What shall he a reasonable time depends on the circumstances oi the case. Where a note payable on demand to order was made in England, and the maker removed to this state, it was held that a transfer and action brought within a year was not such a lapse of time as place the instrument in the situation of a dishonored note. Hendricks v. Judah, 1 Johns. Rep. 319. But where a note was drawn in this state payable to bearer on demand, and negotiated two months and a half after its date, the period was ruled sufficient to let in the equities of the maker against the payee, as a defenco to an action by the endorsee. Losee v. Dunkin, 1 Johns. Rep. 70.


text:
    Pomroy against Preston.
    This court will, on motion, order a writ directing the judges of the common pleas to come in and acknowledge their seals to a bill of exceptions
   In error on a bill of exceptions from the common pleaa The plaintiff had not assigned errors, and after the return of a scire facias guare executionem non, moved for leave to take out a writ, ordering the judges of tbe court below to come in and confess or deny their seal, and that in the meantime all proceedings by the defendant should be stayed. Ordered accordingly, and that the judges appear at the City Hall of the city of New York, on the first day of nest term.

       See vol. 1, 511, The People v. Judges of C. B. for Washington County


author: Per Curiam.

text:
    Van Doren against Walker.
    If it appear from a return to a certiorari that the jury retired, and nothing is said about a constable’s being sworn to attend them, it is a fatal omission, not to be supplied by intendment.
    In Error on certiorari.

      Cady, for the plaintiff.
    The return does not state that any constable was sworn to attend the jury, though it is evident they retired.

      Van Vechten, contra.
    As no improper practice is alleged, *and it does not appear a constable was not sworn, the court will intend it was done.
   Per Curiam.

As nothing is said about a constable’s being sworn, or having charge of the jury, the court cannot supply it by intendment. There are no words in the return to intend by. We might as well intend an issue joined, or a venire when nothing is stated. The justice must state, as the writ requires him, all -his proceedings, the whole history of the suit. When a proceeding so essential is omitted, we cannot consider it as done.

Judgment reversed.


text:
    Low against Hallett.
    In an action for use and occupation, the court "will change the venue to tho county where the house is, if all the defendant’s witnesses reside there and the plaintiff do not show he has any, as the action is founded on privity of contract, and is transitory in its nature.
    ON a motion to change tbe venue from New York to Ontario, in an action for nse and occupation, the defendant swore all his witnesses resided in the latter county, where the house was situated.

      Hoffman resisted it because the action was transitory, and .on an affidavit by the plaintiff, stating his case to rest on written receipts, and an agreement executed in New York.
   Per Curiam.

Take the effect of your application. The papers may be more easily transferred to Ontario, than the witnesses carried to New York. The plaintiff does not show he has a single witness where his venue is laid, and the action being founded in privity of contract, not of estate, is of course transitory.

Motion granted.


author: Per Guriam.

text:
    Spencer against Hulbert.
    In a transitory action the defendant is entitled to change the venue to whore his witnesses reside, unless the plaintiff show he has witnesses elsewhere.
    Simonds moved to change the venue to Onondaga, on affidavit by the defendant, that witnesses, which his counsel advised were material for him, resided there.

      Williams, contra.
    The action is for goods sold and do livered in Hudson, where the plaintiff lives.
   Per Guriam.

Here is special matter in addition to the common affidavit, and in such a case, unless the plaintiff will, by affidavit, state that he has one or more witnesses residing elsewhere than in the county where the venue is moved for, the court will order it to be changed. It is just and reasonable, where the plaintiff has no witnesses out of the county where the venue is moved for, that we should grant the application *even though the action be goods sold and delivered, or other transitory matter.

Yenue changed.


author: *Per Curiam.

text:
    Wilber against Day.
    Ia error on certiorari, the costs of only the general assignment to be allowed. If the error he from a clerical mistake in transcribing, and it be assigned for error, but the defendant do not apply to amend till after argument, it will not be allowed without payment of costs.

    Simonds, for the plaintiff. A rule was last term ordered to show cause against the amendment allowed in August last. Ante, p. 139. But on search no rule has been en-: tered; am I, then, to show cause against what does not exist ?

      Per Guriam. We remember that a rule was granted, and you yourself cannot - have forgotten it. Cause, therefore, must be shown.

      Simonds. By the decision of August, the court pronounced tbe error for which, they reversed the judgment to be matter of substance. The determination, then, has been on the merits, and, therefore, neither by the statute, nor the common law, can an amendment be allowed. Woodman v. Inwen, Barnes, 9; Saunders v. Lenori, 8 Salic 81, is in point. In error,from the court of Northampton, the record removed was prceceptum fait instead oí prceceptum est in the venire, and messes instead of misis The draft below was right, but as it was only a private paper, the court refused to amend the record by the draft, though it was, as in the present case, sworn to be right below. Philips v. Suish, Cro. Jac. 13, shows that misprision in substance is not amendable. If, however, it be ruled otherwise, then all costs must be allowed. Foster v. Blaclcwell, Barnes, 7

      Gold, contra.
    The courts have in modern days been very liberal in amendments, and have allowed them after argument and judgment on the point agitated. • Tippet v. May, 1 Bos. & Pull. 411; Griffiths v. Eyles, ibid. 413; De Symonds v. Shedden, 2 Bos. &Pull-, 153; Morris v. Langdale, ibid. 284; Brigden v. Par Ices, ibid. 424; Sharp v. Stacy e, Barnes, 5; Mayo v. Archer, 1 Stra. 513; even in case of a special verdict. Smith v. Fuller, 2 Stra. 786. Wherever there is any thing to amend by, the court will permit the. amendment asked. Greenv, Rennet, 1 D.&B. 782. Its allowance is in the discretion of the court. This is a proper case, for the assignment is in a matter known to be untrue; not arising on the facts, but on transcribing the record, and after ceritorari brought. It appears, therefore, that when it was sued out *there was no actual error. The favor of the court will not surely be denied in a ease originally right; which continued so when the plaintiff took his exceptions, and is become otherwise only by an ex post facto circumstance, never relied on, nor even contemplated by him.
    KENT, Ch. X What do you say as to the costs why they should not be paid up to this day ? The amendment funnurly ordered said nothing as to them. Yon have made an incorrect return. Your excuse is that it was a mistake. Is this a reason for not paying costs up to this time ? Sup pose the question bad arisen in August term.

      Gold. I readily agree that amendments are generally on payment of costs. But circumstances create exceptions. In Cromwellv. Grumsden, 1 Ld. Rayrn. 335, the formal con elusion of a special verdict was rectified without costs. Where justice and equity is against the party wishing to avail himself of an error, costs are remitted. Therefore, where to a sham plea the plaintiff filed a bad replication, an amendment, without costs, was allowed after demurrer argued. Sobmons v. I/yon, 1 East, 369. It was done in Be Symonds v. Shedden, 2 Bos. & Pull. 153, and Bell v. Be Cosia, ibid. 446, though no such special reason existed. The only reason why costs are given, is on a supposition that there was error when the writ was sued out. Wilkinson v. Meyer, 8 Mod. 232. As that was not the case costs ought not to be allowed.

      Simonds, in reply.
    The whole reliance as to being excused costs, is on the defendant’s having made a correct draft. Suppose a correct plea drawn, and an insufficient one filed, would it prevent costs on a demurrer, that the defendant’s counsel had a good draft at home ? He ought to look at what is on file. Besides, the record shows this error was assigned twelve months before the case was argued. Why did not the defendant then move to amend? If the inattention of the defendant give occasion for error, ■it can be rectified only at his expense. In Rees v. Morgan, ■3 D. & E. 349, the defendant in replevin, after a verdict for him, and damages to the amount of the rent claimed in his cognizance, neglected to have found either the amount of the rent in arrear, or the value of the cattle distrained; this, as being the inevitable consequence of the verdict, was permitted to be amended by entering a judgment pro retorno hahendo. The court, however, ordered it on payment of costs. Such, it is presumed, must be the decision here.

       See ante, 116, n. (a.)

       By the common law amendments were allowed; but then the party was to pay a fine for leave to amend, (like a fine pro liemtia concordandi,) an amercement being due to the king for ill pleading. By the statute,of Marl-bridge it was enacted, that, de caitero fines non capiantur pro pulchre plact-tando ; that is, for leave to amend vitious pleading; as therefore the statute took away the fine, but the grievance was still the same to the opposite side, which before, on the principle of nemo his, pro eodem delicto, pmiri debet, received no compensation, it was held but reasonable to give costs when the offence would otherwise go unpunished

   *Per Curiam.

We think the justice ought to have leave to amend his return, in respect of the oath administered to the constable who had charge of the jury. This, however, though on payment of costs, must be of those on the general assignment of errors only, and of the costs subsequent to that assignment, down to the giving of the opinion of the court in August last. In'making up the paper books, therefore, costs on the general assignment of errors are to be allowed, rejecting the long list of the other errors assigned. But as the defendant has given occasion for this application, the plaintiff may discontinue without costs; neither party to have any costs against the other on the mo tions to amend.

Buie absolute.

         This was afterwards taxed by Kent, C. J., at 4 folio.

         That, it is presumed, means since August.


text:
    Brandt, ex dem. Walton, against Ogden
    Priority of argument.
   It was ruled in this cause that if a public officer inform the court, that the situation of a county is such as to re* quire, for the sake of the peace of the people, a decision on the point contained in a case, it will take preference of all others on the calendar.


author: Per Ou/riam.

text:
    Brevort against Sayre and Hurd.
    If an inquest be taken while the parties are endeavoring to compromise, in consequence of a meeting appointed for that purpose, it will be set aside.
    Boyd moved to set aside the inquest taken in this cause, on an affidavit, stating that the day on which the cause was set down for trial, one of the defendants, who was merely a surety for the other, sent a message to the plaintiff, by which he requested a meeting, to settle the suit if possible, in consequence of which an appointment was made for the evening, in order to try to compromise, but during the course of the day the inquest was taken.
   Per Ou/riam.

Take your motion.

Inquest set aside.


text:
    Anonymous.
    Motion on a frivolous plea like that on a frivolous demurrer.
    It was ruled that a motion to overrule a frivolous plea, and be at liberty to enter a default as if no plea had been filed, has the same preference as motions on frivolous demurrers.


text:
    *Steinbach against Ogden.
    A case is not ready for argument if the points be not in writing, and if only orally stated, the court will not suffer it to be brought on.
    Ih tbe case made, tbe points relied on were not specified, but merely stated by tbe opening counsel.
   Per Curiam.

You are not entitled to bring on tbe argument. Tbe points should have been reduced to writing, and this not merely for tbe benefit of tbe court, but of all parties.


text:
    The Mayor and Corporation of New-York against Sands.
    If a defendant petition the mayor and corporation of Hew York, for relief in a suit by them on a penal ordinance, during the pendency of which a default and judgment, thereon bo entered, they will be set aside, especially >f any thing like merits appear.
    PENDLETON moved to set aside a default and judgment obtained on a penal ordinance by tbe corporation of the city .of New-York, directing tbe defendant, as owner of certain vacant lots, to fill them up. The affidavit read denied bis being owner. It also set forth that tbe defendant bad, on that ground, applied by petition to be relieved, but before any answer was given, and whilst the application was pending, tbe default and judgment were entered.

      Harison contended that as the proceedings were regular, tbe petition ought not to have tbe effect of suspending them. Tbe fact relied on, as an excuse, was a legal defence, and might have been pleaded if true.
   Per Curiam.

The proceedings complained of took place while a petition was pending, and there is, therefore, something of surprise. In addition to this, there are in effect merits disclosed. Let the default and judgment be set aside.

Motion granted.


text:
    Patrick against Hallett and Bowne.
    There may be judgment as in case of nonsuit for not proceeding to a second trial. A misapprehension of the practice on a point not settled will escusa from the usual costs on stipulating.
    Motion for judgment as in the case of nonsuit for not going to trial.
    Biggs, resisted, because the cause had been once tried, and our act, (1 Rev. Laws, 353,) being like that of the English, required the same construction, under which it was held a plaintiff could not be nonsuited for not trying a second time. If we are wrong we are ready to stipulate.
   Per Curiam.

"We have no doubt of the power of the court to nonsuit on a second trial. A plaintiff who has once tried *his cause, after which the ver-diet is set aside and a new trial awarded, is bound to try again, and again, if necessary; and if he did not, the defendant may apply for a nonsuit. But the English practice has misled, and our own has not been perfectly settled, the plaintiff may stipulate and without costs.

Motion denied on stipulating and costs.


author:
      Per Curiam.
     Livingston, J.

text:
    Rogers agianst Garrison.
    Though a cause has been on the day docket in New York, yet the non attendance of counsel to try it may, under circumstances, be an excuse for not allowing judgment, as in case of nonsuit.
    This cause bad at last New-York sittings been set down for trial on the day docket, but from some little confusion, as to the suits that would be heard before the respective judges, who separately at different times presided, the counsel did not attend. A motibn was made for judgment as íd case of nonsuit.
   Per Curiam.

Stipulate and pay costs.

Livingston, J.

I dissent from this, because the only use of a day docket is to enable the bar to know what cause will come on, and it then becomes their duty to attend. If we allow of excuses of this sort, the force of the rule, in the city of New-York, by which day dockets have been established will be totally done away.

On stipulating and paying costs motion denied.

         See ante, vol. 1, p. 7, n.(1,) 112, n.(1.)


text:
    Ekhart against Dearman.

    If a defendant, before his time to plead be out, give notice of motion to change the venue, without obtaining an order to enlarge the time to plead, or stay proceedings, and the plaintiff for want thereof, enter a default, and go on to execute his writ of inquiry, he is regular; but if he do not intend to oppose the motion, he waives his own regularity and the irregularity of the defendant, and the court will set aside the default and subsequent proceedings.
    Ostrander moved to set aside the default and all subsequent proceedings on tbe following facts: On the 2d of October the declaration was served on an agent. On the 11th, the defendant gave notice of a motion, to be made the 12th of November, for leave to change the venue, but on the 10th the plaintiff entered a default, and never appeared on the 12th to oppose the application, in consequence of which the venue was changed as of course.

         See vol. 1, p. 2, marginal n.

   Per Curiam.

The defendant’s conduct has not been perfectly regular. He ought, according to the rules of practice, to have obtained a judge’s order to enlarge the time to plead, or a certificate to stay proceedings. But though there was an irregularity in the defendant, and the plaintiff was correct in entering the default, he has waived both by silently acquiescing *in the event of a motion which he knew must be successful. By not appearing his language is, I consent to the application. If so, he certainly agrees to relinquish the default, and every other advantage. .

Motion granted.


text:
    Palmer and others against Mulligan and others.
    No motion can be made in a second term for costs, to which a party moving was entitled in a former.
    The court ruled that if a party neglect applying in a former term, for all the costs he was entitled to on his then motion, he waives those for which he does not ask, and cannot, in future term, make them the ground of a subsequent motion.


text:
    Manhattan Company against Lydic.
    It is good ground of opposition to a motion for a struck jury, that the affidavit on which it is made, does not show wherein it is intricate or important. But if no opposition be made, it'is then confessed.
    Hofpman moved for a struck jury, on an affidavit stating the case to be intricate and important.

      Jones contended that it was defective in not showing wherein the importance or intricacy consisted.
   Per Curiam.

In all these cases the court ought to see, from the facts laid before them, that the cause is either intricate or important, and not submit themselves to the opinion of the attorney. We want something beyond his mere affidavit. The words of the statute require this. If, indeed, there be no opposition, then the motion passes, as in other cases, of course; because the opposite party by his conduct confesses these requisites.

Motion denied.


author: Per Ouriam.

text:
    Shawe against Wilmerden.
    if a defendant, after pleading the general issue, obtain his discharge under the insolvent law, and his attorney, by mistake, serve a notice of giving it in evidence at the trial, the court will in a stale cause give leave, on payment of costs, to strike out the notice and plead the special natter, as a plea puis darrein continuance, but then the plaintiff will be at liberty to discontinue without costs.
    After pleading the general issue, the defendant obtained his discharge under the insolvent law. His then attorney, who had long since declined business, gave notice that he would give this special matter in evidence. The action being now again proceeded in, application was made for leave to strike out the notice, and -plead the discharge, as the mistake of the attorney formerly employed was the reason why it was not before done.

      Barison, contra.
    The known rule is, that an insolvent must plead his discharge. In the present case it ought to *have beenywis darrein continuance. It is a defence stricti juris, and not to be favored.
   Per Ouriam.

Let the defendant, on payment of costs, have leave to withdraw his notice and plead the special mátter; the plaintiff to be at liberty to discontinue without costs.

Motion granted.

         The rule is, that where a defendant, before judgment, shows to the court that he has obtained his discharge under an insolvent law, he will, though by strict practice too late in his application, be permitted to plead it, on paying costs. Broome v. Beardsley, 3 Caines’ Rep. 172; President and Directors of the Merchants' Bank v. Moore, 2 Johns. Rep. 294; see Lackey & Briggs v. M'Donald, Caines’ Rop. 117, n. (a.)


text:
    Manhattan Company against Brower.
    That a cause was not on the day docket for the sittings in New York, ia matter of excuse on a motion for judgment as in case of nonsuit, and must come from the plaintiff on affidavit.
    Hoffman objected, on a motion for judgment as in case of nonsuit for not proceeding to trial at the New York sittings according to notice, that the affidavit did not state the cause to have been on the day docket. This he contended ought always to be shown, because unless so placed, it could not come on, and the plaintiff, therefore, could not be in default.
   Per Curiam.

Its not being on tbe day docket is matter of excuse, to come from tbe plaintiff, and appear by affidavit.

Motion granted.


text:
    Smith against Cheetham.
    Motion for irregularity in a jury, is a non-enumerated motion.
   It was ruled in this cause that an application to set aside a verdict for irregular conduct in a jury, is a non-enumerated motion.


text:
    Koy against Clough.
    If an attorney from sudden indisposition, cannot attend the execution of a writ of inquiry, the court will, on terms, set it aside, especially if the damages be excessive.
    The attorney in this cause, from a sudden and dangerous illness, (see Jackson v. Brown, vol. 1, 152. S. P. as to trial at circuit,) was unable to attend tbe execution of tbe writ of inquiry, in consequence of which tbe plaintiff’s attorney was requested to postpone the execution of it, but he refusing to do this, went on and executed the writ, upon which pretty smart damages were given. Application was now made to set aside the inquisition.
   Per Curiam.

The inability of the defendant’s attorney to attend the execution of the writ, and the defendant himself having no notice of the day, are reasons for setting aside the inquisition, especially as the damages are rather excessive. But as tbe defendant’s default is, in some degree, a confession of the plaintiff’s right, the rule can be only on tbe defendant’s consenting that the judgment on the inquisition shall be entered as of this term.

Motion granted.