author: Kent, J.

text:
    Charles Newkerk, and Geertruyd his wife, Executrix of Peter Schuyler, deceased, Appellants, against Edward S. Willett, Respondent.
    A bill for a discovery and injunction to stay proceedings at law, must state zomeparticular matter which the complain. ant has a right to seek a discovery of, as material to his defence, and without which, he cannot proceed to trial. A mere inqui. ry because the grounds of the suit at law are unknown, cantiot be main-tamed, being a fishiiig bill.
    ON the 18th day of April, 1799, the appellants filed a bill in chancery setting forth that the testator died in the winter 1792, and left the appellant, Geertruyd Newkerlc, his widow and executrix. That soon after the respondent demanded a considerable sum of money, which she refused to pay; that the respondent thereupon offered to submit the controversy to arbitrament, which she also refused; that thereupon the respondent in April 179S, and after the intermarriage of the appellant Geertruydwith the appellant C7zarles Newiceric, commenced a suit against them, in the supreme court, for 1,0001. for monies pretended to be due to him from said Schu~jler- that the appellants did not, of their own knowledge, know anything of the paid demand ; hut had strong grounds to believe the same to be unjust, because the respondent had not, during the life of said Schuyler, taken measures to adjust his claim, and because he did not possess any vouchers to establish the justice of his demand ; that the relations and accounts given by the respondent were inconsistent and various, and that the appellants being unacquainted with the origin of the pretended debt, could not, without a discovery by the respondent of all the facts, safely proceed to a trial of the said suit. And that the respondent might, until he should have fully answered to the said facts and interrogatories, stated in the said bill, be enjoined from proceeding to a trial at law in the said suit, the appellants prayed an injunction, which was issued of course, on the usual affidavit.
    Fourteen days previous to the filing the above bill, viz. on the 4th day of April, 1799, the said appellants had filed a bill against the respondent (in substance the same as the second bill) to which the respondent had put in his answer before the second bill was filed; by which answer the respondent states, that in the year 1786 or 1787, he was possessed of certificates or public securities, amounting to 800£ and upwards, besides interest, which he, at the solicitation of the said Schuyler, delivered to him, on his promise to lay them out for the respondent’s use in the purchase of forfeited lands; that he had several times applied to the said Schuyler, in his life-time but without success* to render an account and come to a settlement for, said certificates, and that on the last of those applications to the said Schuyler, at Johnstown, he declared that he had sent the said certificates to New- York with his wife, the above appellant, to be disposed of, and that on her return, he would pay the respondent for the same,.

      ' The bill first filed, to which the answer was put in-on the 14th day of December, 1799, was ordered by the chancellor to be dismissed.
    On the 4th day of January, 1800, the chancellor, after hearing the arguments of counsel for both parties, ordered the injunction issued on the second bill, to be dissolved.
    On the above hearing, to dissolve the injunction,, the chancellor admitted the first bill, and the answer thereto, to be read; and also an agreement entered into in the suit, in the supreme court by Willett against the appellants,, in; which they consented and agreed “ that the rule of reference be discharged; that the cause be tried by a struck jury ; that the affidavits of Tennis Fan Wagenen, John Roorback and Gerrit Staats, jun. be admitted and read as evidence; that no writ of error shall be brought by the defendants merely for the purpose of delay; nor shall any bill in chancery be brought or filed.
    The case now came up on an appeal from the chancellor’s order dissolving the injunction.
   Kent, J.

This is an appeal from an interlocutory order of the court of chancery, dissolving an injunction, without any answer being put in to the bill.

The two most material points, which were raised at the argument, upon this appeal, were these :

1st. Is an order dissolving an injunction, one of the orders of the court below, upon which an appeal will lie f

2d. Uid .the bill contain sufficient equity to entitle the appellants to a discovery, and consequently to an; injunction, to stay proceedings at law, in the mean time ?

To discover the first question with accuracy and uoSisfaction ; to draw the line between that class of orders, arising in the progress of a cause, which are susceptible of review by appeal, and that class of 'Orders, which ar.e not susceptible, (and such a distinction may, and does exist) would require more examination, than I have had time to bestow, or than ■the late period of the session of this court, would conveniently permit : I shall, therefore, give no •opinion on the first point; nor is it necessary in the •present instance, to the rights of the parties, because, ~ admitting an appeal to lie upon the order, I am of opinion, on the second question, that the injunction was properly dissolved.

The bill does not state sufficient equity, to entitle the appellants to a discovery. It states generally, that the respondent had made a demand upon one of .the appellants, .as executrix of Peter Schuyler, deceased, and that as he did not produce any voucher, •she had refused to pay him. It states further, that he proposed an arbitration, which she refused, and that finally, he had brought a suit against the appellants, in the supreme court . The bill states further, that the appellants know nothing of the demand of their own knowledge, but that they believe it unjust, because the respondent took no measures to liquidate and-settle it, in the life-time of Peter Schuyler, and does not now produce any vouchers, and has been inconsistent, in what he has from time to time said, as to the nature and extent of his demand.

This is the substance of the bill; it amounts to this, the respondent has sued us at law, and we do Not, know for what, and .therefore, we ask for a di&? covery beforehand, although we have reason to conclude, he has sued us upon some groundless prc~ tence. Such a bill shows no equit9, no rig/it to a discovery. It sets forth no matter material, to a c/c-J~nce at law, and which cannot be proven, unless by the confession of the opposite party. It is, to use Lord Chancellor Hardwicke's expression, a merefisIz~ ing bill, seeking generally, a discovery of the grounds of the respondent's demand, without stating any right, to entitle them to it; such a bill may be exhibited by any executor or administrator, and indeed by any defendant, who is not already in possession of the plainti~Y's proofs. But the court of chan-~ cery, has wisely refused to sustain bills for discovery in such latitude, arid unless the party calling for a discovery, will state some matter offact material to his defence, or which he wishes to substitute by the con~ fession of the defendaut, the court will not enforce a discovery.

I am accordingly of opinion, the appellants in the present case, were not entitled to a discovery, and that the injunction staying the suit at law, was properly dissolved, and that the order for that purpose, be affirmed. And further, that the appellants pay to the respondent, his costs of the appeal to be taxed.

Judgment of affirmance unanimously.

       2 Vez. 445. 492. 2 Fonb. 484. 1 Vern. 399.


source: Caselaw Access Project

author: Per Curiam, delivered by Kent, J,

license: Public Domain

text:
    (Supreme Court.)
    James Jackson, ex dem. the new loan officers of Rensselaer county, and John Crabb, against Isaac Bull.
    Asaleby loaii oflicers, at auction, is within the statute of frauds. If a bargain for the purchase of land be concluded, and at the expiration of some time, the conveyances duly executed, the subsequent deeds will so far have relation to the day of concluding the bargain, that an intermediate sale b~ the vendee will be good against him and his privies, and the possession of the original vendor, at the time of such second sale, cannot be urged as apossessionadverse to the vendee, and that, therefore, nothing passed by his deed.
    THIS case was stated thus: John Crabb, one of the lessors, purchased of the new loan officers, at public auction, on the 3d Tuesday in September, 1795, one hundred and sixty acres of land. On the 31st October, and 4th November, following, he sold, by deed of bargain and sale, one hundred and forty acres, parcel, &c. to Abraham Francisco, under whom, the defendant claims ; and on the 5th January, 1796, he obtained his deed from the loan officers, in pursuance of his former sale, and now brings his ejectment on the latter deed, to recover the whole one hundred and sixty acres.
    Question. Is he entitled to recover ?
   Per Curiam, delivered by Kent, J,

I incline to the opinion that no legal estate, except a mere tenancy at will, vested in Crabb, until the loan officers had executed the deed. The statute of frauds prevents any greater estate from vesting without writing, and it is, besides, a general rule of law, that a corporation cannot sell land without deed; and the loan officers, in the present instance, are ordered by the act, to convey the land they sell at auction, by deed, under the loan office seal.

But I adopt, as a just rule of construction, and applicable to the present case, the principle laid down by this court, in the case of Raymond v. Jackson, ex dem.June, “ that whenever it is intended to be shown, that nothing passed by a grant, by reason that at the time, there was a possession in another, adverse to the grantor, then the time to which the grant is to relate, is the time when the bargain for the sale was finally concluded between the parties; and that, consequently, any intermediate adverse possession, before the execution of the conveyance (which is the only technical consummation or evidence of the grant) -can never affect it.” In the present case, therefore, the deed to Crabb, of the 5th January, 1796, shall have relation back to the third Tuesday of September, 1.795, being the time of the final conclusion of the bargain, by the sale and purchase, at public vendue, só ás to render valid any intermediate sale or disposition of the land, by Crabb. Even supposing the deed of the 5th January, 1796, could not have th-is retrospective force by relation to the time of the conclusion of the sale and purchase at the vendue, still Crabb can never be permitted to claim in opposition to his deeds of the 31st October, and 4th November, 1795, by alleging, that he had no estate in the premises. For if a man make a lease by indenture of land which is not his, or levy a fine of an estate not vested, and he afterwards purchases the land, he shall, notwithstanding, be bound by his deed, and not be permitted to aver he had nothing. Whether a person can, in such case, be said technically to be estopped, because it is of the nature of aii estoppel, to bind privies as well as parties ; and Coke gives an instance, wherein an act of this kind, without warranty, will bind the grantor and not his heir; and whether a deed can operate at all by way of estoppel, if any interest passes by it, are points on which I forbear to-give an opinion, because they are not only something difficult, but not necessary to-be discussed.

In the present case, there can be no doubt, but that Crabb himself, shall never claim against his own deed.

I am of opinion, therefore, that judgment be renderedfor the plaintiff, for the twenty acres only.

Judgment for the plaintiff

       14th March, 1792.

       Jan. Term, 1798.


text:
    (Supreme Court.)
    Johnson against Bloodgood.
    Whetia notéis purchased after due, every, presumption is to be made against the purchaser. Therefore, if he state it to have been, generally in such-a year, and the maker has assigned his property under the insolvent law,on the 16tk January,in that year, it shall be presumed, the purchase was after the assignment. A note purchased after due, and after an assignment under the insolvent lav,7, cannot,in an action by tile assignee?, ia the name of the insolvent, be set off against a debt due to the insolvent’s eststc.
    THIS was an'application to set aside a verdict,, rendered for the plaintiff.
    From the judges report, the present appeared to be an action brought for the benefit of the creditors of the plaintiff, and his name, used merely to satisfy the forms of law.
    The point to be decided was this; whether, in a suit brought by the assignees of an insolvent debtor, in his name, but for the general benefit of his creditors, the defendant shall be permitted, under the plea of payment, to setoff a note of the insolvent, purchased after it became due, and after the assignment of the insolvent, though without actual notice of it, at the rate of 12s. in the pound, and for the purpose of such set-off.
   Kent, J.

This suit is substantially, betweefi the creditors of Johnson and the defendant. It is now well understood, that courts of law will take notice of assignments and trusts, and consider who are beneficially interested, and will protect the cestui que trust.

In giving my opinion, I mean not to question the law that a bill or note may be negotiated after it is due, and be declared up'onas such. But I approve and adopt, as salutary, and calculated to prevent fraud, the doctrine laid down in the cases of Brown and Davis, and Taylor and Mather, that if a bill or note be indorsed after it becomes due, it throws a suspicion on the transaction, and the indorsee shall take it, subject to all the equity that existed in favour of the maker of the note, before it was indorsed ; and if there be any attendant circumstances of fraud, thg indorsee shall have every presumption turned against him. So in the present case, the defendant, stating only generally the year 1793, in which he purchased the note, it shall be presumed he purchased it after the 16th January, 1793, the date of the assignment of the insolvent’s estate.

When a note is offered for sale, after it has become due, and at a discount, what is the necessary inference? most certainly that the maker is insolvent; and, if so, his effects and credits ought immediately to enure to the benefit of his creditors, and he be regarded but as their trustee.

The presumption will be, because, so, indeed, justice would dictate, that the insolvent makes forthwith, a full and frank disclosure and assignment of all his property, for the payment of his debts. And if the insolvent do, in fact, make such an assignment, the purchaser in such a case, of a note, after the assignment at a depreciated rate, for the purpose of a set-off, though he may not, in fact, know of the as-, signment, is nevertheless properly chargeable with having acted under the presumption of notice of the assignment. The law infers the notice, being what is termed constructive notice. 2 Fonb. 155. He accordingly commits a fraud upon the creditors ; he does an act mala fide, and, as lord Kenyon observed, in a case not very unlike the present, “ it would be most unjust, indeed, if one person who happens to be indebted to another, at the time of the bankruptcy of the latter, were permitted, by an intrigue between himself and a third person, so to change his own situation, as to diminish or totally destroy the debt due to the bankrupt, by an act ex post facto.”

I accordingly continue in the opinion that was given at the trial, that the note purchased by the defendant was inadmissible testimony, under his plea of payment, and that the defendant take nothing by his motion. Motion denied.

       1 D.&.620.

       1 Ld. Raym. 575.

        3 Durnf. 80, 83.

       6 Durnf. 59.


author: Per Curiam, delivered by KENT, J.

text:
    (Supreme Court.)
    Betts against Turner.

      On the sale of a note not negotiable, `with a covenant by the vendor, to pay the vendee a certain sum, "if the vendee should take alt and every legal step the law directs, to prose.~ cute to effect, the maker and payee, to wit~ if the vendee~ and no one in his name, or i0. that of the maker, could recover judgment legally, against the maker on the note, or against the payee, in case he had, at the date of the covenant, or should, previous to the suit against the maker, discharge the note if, in an action against the maker, the payee, according to the laws of the country, go into court and deny authorising the suit by the assignee against the maker, the assignee cannot maintain an action on the covenant against the vendor, if by the law of the country the payee be, in such case, liable for the amount, without first showing a legal endeavour, by suit, to recover the amount against the payee. Covenants are to be construed, not merely by their letter, but their spirit.

    THIS was an action of covenant, and the declaration stated in substance, that John Baker, on the 17th October, 1795, gave a promissory note to WilHam Hooker, by which he promised to pay to him, or his order, on the 1st day of April, 1797, 833 dollarsand 33 cents; that the defendant sold the note to the plaintiff, 'to be by him collected at his own risk and costs, as it respected the ability of Baker and Hooker, and that the defendant covenanted to and with the plaintiff, to pay him 2,000 dollars when requireci, "in case the plaintiff should take all and
      every legal step as the law directed, to prosecute to effect, Baker and Hooker ; to wit, if the plaintiff, and no one in his name, or in Hooker’s name, could recover judgment legally against Baker, on the note, or against Hooker, in case he had, at the date of the covenant, or should, previous to the suit against Baker, discharge the note.”
    The declaration further stated, that Baker resided -in Massachusetts, and that on the 31st July, 1797, the plaintiff sued Baker in Hooker’s name, according to the laws of Massachusetts ; that Hooker came into court, and denying that he had ever authorised the suit, the court dismissed it. That the plaintiff had taken all legal steps to sue Baker upon the note, and that he. could not sue upon it in his own name, either Baker or Hooker. That Hooker had never negotiated the note, so as that any person could sue upon it in his name, but himself; and that. Hooker had never discharged the note.
    To this declaration the defendant pleaded, that Baker.and Hooker reside in Massachusetts, and that the note was sold by Hooker to one Cole, and by him to one Booth, and by Booth to the defendant, who sold it to the plaintiff; that such notes were not negotiable by the laws of Massachusetts, so as to enable the assignee to sue in his own name, but that he could sue in the name of the original payee, and that if the payee released the suit or discharged the note, he became liable to the holder, for the amount of such note, of which law the plaintiff, at the time of the delivery of the note, had notice; and that the plaintiff did not prosecute Hooker, nor attempt to recover a judgment against him on the note, as he might and ought to have done, according to the laws of Massachusetts.

      To this plea there was a general demurrer and joinder.
   Per Curiam, delivered by KENT, J.

By the co~ venant, it appears, that the plaintiff was to do a previous act, to entitle him to maintain a suit on the covenant. This previous act, like all other stipulations in covenants, must be done fairly and faithfully, according to the spirit and intention of the agreement. It may be proper to observe, as a rule in the construction of covenants, that they are to be performed according to their spirit rather than their letter, “ ut res magis valeat quam per eat.”

The beneficial end that the parties had in view, is to be primarily regarded and enforced ; and, therefore, where an obligee engaged to deliver up his obligation to the obligor, by such a day, and he, in the mean time, put it in suit, recovered upon it, and then delivered it; this, although a compliance with the words of the agreement, was held no performance of the intent. So, where A. covenanted with B. that he should enjoy a term of six years, discharged from tithes, and a suit was brought, after the expiration of the term, for the intermediate tithes, it was held, that B. was as much prejudiced by a suit after the term, as he would have been before, and that the intent of the covenant was, that he should be freed from suit and payment; the covenant, therefore, broken. By the same just and liberal rule of interpretation, it is declared, that if one covenant to deliver the grains made in a brew-house, and in the mean time, he mix them with hops, so as to render them unpalatable to cattle; or engage to deliver so many yards of cloth, and he cut it in pieces, and then deliver it; or if he covenant to leave the timber on the land, at the expiration of a lease, and he cut it down and so leave it, these, and other numerous instances of the like kind, to be met with in the". books, are all alleged to be breaches of the covenant; because, the law regards not a literal but a real and . . Jaithjul performance of contracts, according to the intent of the parties-.

These principles ought to be kept steadily in view, as having an application to the present case.

It is pretty obvious, that the defendant did not intend to pay the 2,000 dollars, until the plaintiff had faithfully tried, and .tried in vain, to recover the amount of the note from Baker, and from Hooker. The note was sold to the plaintiff, to collect at his own risk, so far as respected the ability of Baker and Hooker; and it was a condition precedent to the payment of the money by the defendant, that the plaintiff should take all and every legal step, as the law directed, to prosecute to effect, Baker and Hooker. He did take those steps to prosecute Baker, but not to prosecute Hooker, although the latter became liable to him, for releasing the suit he had instituted in his name, against Baker.

Here, then, appears a palpable failure on the-part of the plaintiff, of an act which was necessary to entitle him to his suit against the defendant; I mean the failure of taking the steps by law directed, to prosecute to effect, Hooker as well as Baker.

It may, however, be objected, that the case in which Hooker is to be prosecuted, is afterwards particularly stated in the covenant, and that Hooker was only to be prosecuted, if he had, at the date of the covenant, or should, previous to the suit against Baker, discharge the note; and, that, never having discharged the note, the plaintiff was under no necessity, by the covenant, of prosecuting him. To this, I answer, that, although this be the letter, it cannot be the intent of the agreement. The agreement, in the first instance, provides generally, that the plaintiff shall prosecute to effect, both Hooker and Baker, and it then proceeds to specify the instance, in which Hooker is to be prosecuted; to wit, if he had then already, or should, previous to a suit against Baker, discharge the note. But the rational meaning of the covenant, deficient as it may be in perspicuity and precision, cannot be otherwise than this, that the plaintiff should first prosecute Baker, and, if Hooker should prevent him from recovery against Baker, that he should then prosecute Hooker.

The defendant seems to have contemplated but a single case, in which Hooker could prevent a recovery, and that case, which was the discharge of the note, he has specified ; whereas, an interference in Hooker, by discharging or releasing the suit, was an equal impediment to a recovery, and equally exposed Hooker to a prosecution.

The plaintiff was to take every legal step to obtain a recovery, both against Baker and Hooker, but he omitted to take any step against Hooker, and now alleges, as his sufficient excuse, that Hooker did not prevent a recovery against Baker in the manner mentioned and expressly provided for in the covenant. — - It is true, he prevented a recovery by discharging the suit; but he did not prevent a recovery by discharging the note, and he must prevent the recovery in the latter mode, and not in the former : otherwise he was not to be prosecuted.

I dislike any such subtle distinction, calculated, as it appears to me, to elude the end and design of the covenant; for I cannot conceive any possible inducement, on the part of the defendant, to stipulate, that the plaintiff should previously prosecute Hooker, if he prevented a recovery against Baker, by discharging the note, which would not equally be felt, and equally operate, if Hooker prevented a recovery against Baker, by discharging the suit. And for the plaintiff to pretend, that he was bound to prosecute Hooker, in the one case, because it was expressly mentioned in the covenant, and not bound in, the other case, because it happened to be omitted, although precisely within the same reason, is for him to construé the article by its letter, and to disregard its spirit. It is, in allusion to the cases mentioned, to deliver up the obligation by the day, but in the mean time, to prosecute and recover upon it. It is to deliver the cloth, but after it is cut to pieces. It is to leave the timber on the land, but to leave it prostrate.

I am, accordingly, of opinion, that the plaintiff lias not shown, in his declaration, the requisite previous performance on his part, and that judgment ought to be rendered for the defendant.

Judgment for the defendant

        Cro. E. 7.

        Cro. E. 916.

         T. Raym. 464.

       See 1 Sid. 48. 151.


author: Per Curiam, delivered by Kent, J.

text:
    Frost against Carter.
    If the indorsor of a note payit after the dis. charge of the insolvent nia~ ker, under th~ insolvent law~ the discharge is no bar to maker re~ covery again& the maker
    FROM the circumstances stated in this case, it appeared, that the defendant, on the 3d day of January, 1792, gave the plaintiff a promissory note for 9,299 dollars and 44 cts. payable in 90 days; that the plaintiff indorsed the note, and it went into circulation; that it was not paid when due; that the defendant was afterwards discharged under the insolvent act, and, at the time of the discharge, the note belonged to Archibald Mercer ; that subsequent to the discharge, to wit, on the 1st July, 1794, the plaintiff paid 3,000 dollars, took up the note, and brought this suit to recover that money back from the defendant.
    The question upon these facts, was, whether the debt, now claimed of the defendant, was a debt which the plaintiff could have asserted as his own, and have verified upon oath, as a specific and certain debt on the 2d day of March, 1793, when the defendant procured his discharge ? In other words, was it a debt proveable against the estate of the insolvent ?
   Per Curiam, delivered by Kent, J.

The act of insolvency, of the 21st March, 1788, in pursuance of which, the defendant obtained the discharge which he now sets up, in bar of the plaintiff’s right of action, extends the discharge to such debts, and to such debts only, as are due at the time of the assignment of the insolvent’s estate, and to debts contracted for before that time, though payable afterwards,— Those debts must be specific, and certain sums of money, to which the creditor can make oath, as being justly due, or to become due at some specified time. Unless the creditor, at the time of the assignment, be able to produce and verify such debt, in such manner, he would not be entitled to receive from the assignees, his dividend of the insolvent’s effects, nor would he be barred from his future action against the insolvent.

Therefore, although the plaintiff in the present suit was, as I take for granted, on non-payment of the note by the defendant, duly fixed as indorsor, and although this was prior to the defendant’s discharge, yet, until he had actually paid the holder of the note, and taken it up, he could not be said to have a certain and ascertained debt due to him from the defendant. His demand upon the defendant depended upon the defendant’s final non-payment of the note, and his payment of it, for him. He stood, in respect to the defendant, in the relation of a surety only ; and what portion of the note, if any, short of the whole sum, the defendant himself might be able to pay to the holder, was a matter altogether uncertain. So that the plaintiff, until he paid the 3,000 dollars, and took up the note, had not any specific and certain debt due to him from the defendant, and as, therefore, this debt, which is now demanded, accrued subsequent to the defendant’s discharge, and, in consequence of an actual payment by the plaintiff, the plaintiff was not entitled to claim his debt from the assignees of the defendant, and, consequently, the discharge of the defendant cannot be a bar to a recovery in the present suit.

This construction of the operation of our insolvent act, is the same with that of the English bankrupt law in consimili casu.

The stat. 4 and 5 Ann. c. 17, which was continued by the stat. of 5 G. II. c. 30, sec. 7, extends the discharge of the bankrupt to all debts by him due or owing at the time he became a bankrupt, and the stat. of 7 G. I. c. 31, extends it to debts contracted before the bankruptcy, though payable after. These statutes in this respect are to the same effect and almost precisely in the same words with our act of insolvency when it declares the force and extent of the insolvent’s discharge.

By the English decisions upon those statutes, it has been frequently determined, and seems to be a rule permanently settled, that if the creditor, at the time of the bankruptcy, had n~t a certain debt due, to which he could attest by oath, and which he could bring in under the commission of bankruptcy, he is not barred by the bankrupt's discharge; and, in like manner, that a surety, although he be liable before, yet if he does not actually pay the debt till after the act of bankruptcy be committed, he then cannot prove it under the commission, and may resort to the bank. rupt.

It has been objected, and with some plausibility, to this doctrine, that if a debt be due at the time of the assignment to any one who might have proved it, it must be done away by the discharge; for, that the insolvent is discharged from all his then debts to whomsoever they may belong, and that, if when discharged from the action of one creditor, he "were to remain li able at the suit of another for the same debt, it would be no discharge at all. These objections were rais~ ed and overruled in the cases of Taylor v. Mills and Magnall, and of Brooks v. Rogers. The an~ swer appears to me to be plain and sufficient, that where a plaintiff cannotprove a debt till he has actually paid the money, and the payment be of the proper debt of the insolvent, and after the assignment of his estate, the cause of action in such case arises after the insolvency, although upon a pre-existing ground, and as he cannot exhibit his debt to the assignees, because there was no sum due, to which he could attest when the assignment was made, it is highly, nay indispensably just, that he should resort to the insolvent himself. ■

lam accordingly of opinion that judgment be rendered for the plaintiff.

Judgment for the plaintiff.

       Cozup. 525.

         1 H. Black. 640.


author: Per Curiam, delivered, by Kent, J.

text:
    (Supreme Courj.)
    Jackson ex dem. Jane Van Alen, against Rogers.

      A parol gift of lands creates only a tenancy at will. If the donee lease, and the donor (10 not ratify his act, the mere permitting thejessee to build and enjoy under the term, will not prevent the donor from legally devising the land, and his clevisee may recover without notice `to quit.

    THIS was an action of ejectment for a store and lot at Kinderhook, on a demise laid 1st June, 1795. The application was to set aside a verdict for the P^a^nt"iff, and grant a new trial.&emdash;The facts of the "case were these,

      Lawrens Van Alen was in possession of the premises for a period of more than 30 years before the bringing of the present suit. John C. Holland married his daughter, and was a drunke-n dissipated character, frequently requesting Lawrens for a deed ^ie premises, and was as often refused ; at last, he, Lawrens, said to him, and but once, “ well John,
      you may take the kraal (meaning the premises) and I will deduct 60/. from your wife’s portionno writings were signed, and these expressions were before building the store in question.

      Holland afterwards leased the premises to McMechen for 9 years, and McMechen, in consideration, was to build a store on them; he did so, and at the time he began to build, Lawrens had grain on the premises. Lawrens was at first dissatisfied when he heard Holland had made the lease, but afterwards was satisfied, saying it would benefit Holland's children. The lease was made in the year 1785. In August, 1794, Holland (the first lease being out) made a second lease to McMechen (the partner of the defendant) for 5 years, at the annual rent of 30/. Lawrens heard of the second lease from strangers, and was dissatisfied with it, particularly when he found the rent was not to benefit Holland's children. He frequently talked of taking the property into his own hands, and afterwards devised the lands to the lessor of the plaintiff for life, by will dated 19th June, 1790. Lawrens died in May, 1795; the action was brought without any notice to quit.
    The question on these facts submitted to the court was, ought the lessor of the plaintiff to recover?
   Per Curiam, delivered, by Kent, J.

In the argument for a new trial in this cause on behalf of the defendant, it was contended that the lessor of the plaintiff ought not to recover:

1st. Because the lease from Holland to McMechen amounted to a disseisin of Lawrens J. Van Alen, and destroyed his capacity to devise.

2d. That the second lease from Holland to McMechen, was still subsisting at the commencement of the suit, and was a lawful impediment to the plaintiff’s recovery.

3d. That the defendant was at all events tobe deemed a tenant from, year to year, and so entitled to six months notice to quit.

1st. To constitute an actual disseisin, or one in fact, there must be a tortious entry and an actual expulsion. , No such thing appears, or was pretended in the present case, nor was there a disseisin admitted by election. The distinction of a disseisin by election, as contra-distinguished from disseisin in fact, was taken for the benefit of the oxvner of the lands, to extend to him the easy and desirable remedy of assize, instead of" the more tedious remedy of a writ of entry. Whenever an act is done, which immediately, and of itself, creates an actual disseisin, it is still taken to be an actual disseisin, notwithstanding the introduction of the doctrines of disseisin by election; as, if a tenant for years, or at will, should enfeoff in fee ; and on the other hand, those acts which are susceptible of being made disseisins by election, are in fact no disseisins till the election makes them so ; as if a tenant at will, instead of making a feoffment in fee, should only make a lease for years.

No such election was ever made in the present case, and consequently there was no disseisin. Making a devise has been deemed, in a similar case, an intimation of an election, not to be disseised ; and if Holland was tenant at will (and no greater interest can be inferred in him, because no greater interest can be created by parol) a lease for years by him can be no disseisin, unless the true owner elect to make it so, nor does it destroy his capacity to devise.

These are briefly the settled distinctions between disseisins in fact, and disseisin by election. They were generally hinted at or brought into view, com-merited upon and explained in the case of Atkins and Horde, one of the most learned and elaborate judicial discussions on a question of real property to be met with in modern times, and they are likewise historically and ingeniously illustrated by J. W. Butler, in one of the notes to his edition of Coke upon Littleton.

I shall therefore pass the whole of this doctrine by, as having no influence on the present case, nor should I have noticed it at all, had not the counsel for the defendant, appeared to rely much upon it, and to consider it as strong ground in the cause.

2d. In respect to the existence and force of the second lease from Holland to McMechen. I would observe, that notwithstanding the gift of the premises to Holland by Lawrens, he had never any greater interest in them than an estate at will, because Lawrens, to whom the premises belonged, never alienated them to him by deed or writing, nor made any parol demise of the same for a term not exceeding three years, and reserving a rent thereon. Holland was, consequently, by the force and effect of the statute of frauds, but a tenant at will, when he made the first lease to McMechen ; and when he made the second lease, he was still but a tenant at will, and so had no authority to make either lease, because such authority resides, not in a tenant at will; nor can a parol gift of land in fee operate as an authority to make leases, because the statute of frauds declares expressly what shall be the operation of such parol grant; it shall “ have the force and effect of leases or estates at will only, and shall not have any other, or greater force or effect.” I therefore do not regard any intimation that may be given by the circumstances of the subse-

quent assent, either tacit or express, of Lawrens, to either the first or second lease; because it is a settled doctrine that no subsequent assent will make gooda void lease, although subsequent acts' may operate as a new grant. Both the leases to A'TcMcclzen were, therefore, from the beginning, null and void, because made by a tenant at will who has no capacity to grant.

3d. The third point is, whether the defendant was entitled to notice to quit.

Where the holding is not for a determinate period but from the reservation of an annual rent, or from other circumstances, is susceptible of being construed into a holding from year to year; in such cases the courts have adopted as a rule favorable to the interests of both landlord and tenznt, that neither party shall determine the lease without six months pre~ vious notice to the other, of that intention; but where the lease is for a definite period, or determinable on a certain event, no notice is requisite, as both parties are apprised of the termination. So if the tenant be strict-4r a niere tenant at will, as where one enters under a void lease ; there, I apprehend, no notice is necessary. The N. P. decision in the case of Goodtitle ex dem. ~4c1eare, v. Prentice, before Gould, J. in 1790, is ex~ pressly to this point.

in the present instance the defendant, the partner of .zWcMec/ien, entered under a void lease, and became a nz~crc trespasser, if Lawrens chose to make him so~ and so continued to the bringing of the suit; no subsequent agreement wa$ made, no actual rent was stipulated for between him and Lawrens, none was demanded or paid, Lawrens did nothing to recognise him as his tenant, and to create between him the relation of landlord and tenant, and consequently no notice was necessary.

. I am accordingly of opinion that the defendant take nothing by his motion.

Judgment for the plaintiff.


text:
    (Supreme Court.)
    The People against The Sessions of Chenango.

    The Sessions cannot grant a new trialon the merits ; if they do, a man~ damns will go forbidding them to pro
    This was an ttpplication for a mandamus, forbidding the Sessions of Chenango from proceeding on a iaew trial they had granted.
   Per Curiam, delivered by KENT, J.

Let the mandamus go. The sessions cannot grant a new trial' upon the merits. It is a pow,er not exerëised by this court, after verdict in cases of felony, and perhaps it is expedient it should not be.-~ This court had by its original constitution by ordinance, the superintending controul of all inferior jurisdictions within the state, and this power has never been taken away. It has been from time to time recognised by law, and in constant and vigilant exercise. All courts within the several counties, have, from the first foundation of our judicial system, been regarded by law and by practice as inferior courts; they can be compelled to duty by a mandamus; they can be restrained from usurpation by prohibition. The causes and pleas before them, can be arrested and removed by habeas corpus or certiorari, and their judges can be attached, brought before this court, and punished for disäbedience. All these are distinguished and essential marks of supremacy in the one court, and of inferiority in the other; they are, therefore, within the reason and meaning of the law, inferior courts, and such courts are not intrusted by law, with.the power of setting aside verdicts of juries upon the merits. It has been the uniformly received usagte and understanding on the subject, until very lately, that that pow'er was exclusively confided to this court; it can neither be taken from this court,1 nor assumed by the. sessions without express words.

There are strong reasons for the law withholding the power from the courts of general sessions of the peace. All the justices of the peace, within the county, are judges of the court. This renders it a very numerous tribunal, and divides and weakens the responsibility of the members. The justices are laymen, and cannot be supposed to have been taught or trained in the science of law. The power of awarding new trials on the merits, is a power necessarily resting in sound legal discretion. The reasons of the exercise of that discretion, are not stated on the record, and are not susceptible of review by this court. The power may be grossly abused; different principles and contradictory practice may be assumed in different courts ; verdicts may be set aside, ad infinitum, till juries are worried into submission ; they might be set aside where the prisoner is acquitted, as well as convicted, and the power thus unlimited and unreviewed, might go to the destruction of trial by jury; to overturn the rights of the citizen ; to shake the stability of government, and destroy all system and harniony in our jurisprudence.

I am, with perfect satisfaction, of the opinion, that this great and transcendant trust, rests solely with this court; a court which the constitution and law? has taken care so to organize, as to contemplate itflt and competent; for the due and safe exercise of this very delicate power. We cannot alienate any part of our trust; we are responsible for its safe-keeping, and that no waste be committed on a power we hold for the security of our citizens, in their liberties and estate.

       Prohibitions are ex debito justiciæ, when an inferior court acts without jurisdiction. They will lie to courts-martial. See the case of Grant, 2 H. Black. 69.


author: Per curia,n~ delivered by KEN T,J.

text:
    (Supreme Court.)
    Lodge against Phelps.
    An action i~ maintainable in our courts on a promissory note within our statute by the holder, thou~li made in necticut, where the Suit must be in the name of the original payee. 2
    THE question in this case was, can the assignee of a promissory note given in connecticut maintain a suit upon it here in his own name, since he is not permitted to do so there?
   Per curia,n~ delivered by KEN T,J.

That personal contracts, just in themselves, and lawful by the law of the land where made, are to be fully enforcedaccording to the intent of them, notwithstanding any change of habitation by the parties, is a principle of justice and of social policy which ought every where to be received and supported. But the admission of the lex loci contractus can have reference only to the nature and construction of the contract, and not to the mode of enforcing it; for every country must and will have precedents and judicial forms peculiar to itself, and under the solemnity of these forms will enforce contracts according to their true intent and spirit.

The note on which the present suit was brought, was made payable to the payee or his order, and he • orderedthemoneytobe paid to the plaintiff; the plaintiff, therefore, by the rules of equity, not only in Connecticut, but in every country where equity is known-is thtitled to receive the money in preference to the original payee. What just reason can there then be, that the plaintiff should not be permitted to avail him~ self here of the forms and remedies prescribed by our laws, and to sue directly in his own name for the money, but should rather be compelled, agreeably to the usage of Connecticut, to use the name of the original payee as a mere nominal plaintiff, or dramatis persona ? If the defendant has any defence authorised by the law of Connecticut, let him show it, and he will be heard in the one form of action as well as in the other. Agreeably to the principle I have laid down, I am for allowing him every defence that he would have been entitled to make in Connecticut, had the note been sued there in the name of the original payee, and as long as this can be done, I do not perceive any sufficient reason for turning the plaintiff round to another suit. To permit innovations upon our forms of action, when not necessary, may lead to inconvenience.

Judgment for the plaintiff.


author: Per Curiam,delivered by Kent J.

text:
    (Supreme Court.)
    Covenhoven against Seaman and others.
    If a recognisance in a ho-mine replegiando be, that the slave claimed, should prove his li berty, mid personally appear in court and prosecute his suit with effect, it is forfeited by the appearance and surrender of the slave to the person claiming, notwithstanding he be on such surrender accepted.
    THIS was an action of debt on recognisance, in which the defendants bound themselves to the plaintiff in 100/. that a certain Jacob Jones, whom the plaintiff claimed and deta hiedas his slave, and who had sued out his writ of homine replegiando, should prove his liberty in the most proper and expedient way and means, and should personally appear in this court, and his suit in that behalf prosecute with effect.

    The plaintiff averred in his declaration, “ that the said Jacob did not prove his liberty, nor prosecute his suit in that behalf with effect, but suffered judgment as in case of nonsuit, to be entered against him for not proceeding to trial.”
    The defendants by their plea stated, “ that after the said judgment of nonsuit, the said Jacob did appear in this court, and then on the prayer of the plaintiff surrendered himself to him, who accordingly accepted him, and that the defendants have since paid to the plaintiff' his costs of suit.” To this plea there was a general demurrer and joinder.
   Per Curiam,delivered by Kent J.

The defendants by this recognisance, and which appears to have been taken agreeably to precedent, undertook for three things.

1st. That Jacob Jones should prove his liberty in the most expedient way.

2d. That he should personally appear in this court,

3d. That he should prosecute his suit in that behalf with effect.

Instead of this it appears that Jacob Jones has not proven his liberty, nor prosecuted his suit with effect, but has suffered judgment to be entered against him as in the case of nonsuit, and has, at the prayer of the plaintiff, surrendered himself to him.

The condition of this recognisance has certainly not been complied with; a party submitting to a non-suit, does not prosecute a suit to effect ; nor if the writ be abated for any cause, will it save the recognisance, unless another writ be sued out with due diligence ; the case given in Fitzherbert is closely analogous to the present. “In abomine replegiando, the plaintiff was bound in a recognisance in a certain sum of money to the defendant’s use that he would sue him, cum effectu ; and if the writ be abated for any cause yet he ought to sue another writ for that taking, &c, otherwise he shall forfeit his recognisance. H. 8. H. 4.

The only question that can be raised in this cause; is whether the surrender to the plaintiff is a discharge from the recognisance. I find no authority, nor any reason to think so; there were good inducements for the stipulations in the recognisance that a suit should be prosecuted to effect, and the question of the freedom or servitude of Jacob Jones judicially determined. It would either silence the unjust pretensions of the plaintiff, and for ever deliver the man from bondage, or it would quiet him in the lawful possession of his property. The surrender of Jones to the plaintiff, and his acceptance of him, leaves the question still undetermined.

I am, therefore, of opinion, that the plea is bad and that judgment be rendered for the plaintiff.

Judgment for the plaintiff

        Carth, 519.

        N. B. 68. a.


author: Per Curiam, delivered by Benson, J.

text:
    (Supreme Court.) .
    Judah against Randal.
    Under a policy on a chariot, " free from average," but in which jettisons make one of the perils insured against, if the ~ox of the chariot be thrown overboard in a storm, it is a total loss, and the insured entitled, on abandoning, to recover ~s auch, though the car riage be or~ desk.
    THIS was an action on a policy of insurance in the usual form, but free from average, on a chariot to be carried on deck,
    On the voyage the box was thrown overboard in a ~torm to lighten the vessel; she afterwards arrived safe with the remaining parts of the chariot,
    It appeared the box is ordinarily estimated at two~ thirds of the price of the whole chariot. Verdict for tTie plaintiff, as for a total loss of the chariot, subject to the opinion of the coUrt on the following question kí Whether there hath been such a loss as to make the insurer liable ? if so the verdict to stand ; if not, to be set aside, and the defendant to take judgment as in case of nonsuit.”
   Per Curiam, delivered by Benson, J.

The very statement of the question implies it to be admitted by the parties, and which is certainly the case, that the only question between them is, whether the loss is to be deemed a total loss, or only a partial or average loss of the chariot ? By the express terms of the policy, jettison was one of the perils which the insurer took upon himself; but at the same time the insurance being also expressly free of average, the jettison must not be a partial or average loss only, but must amount to a total loss of the thing insured, so that the inquiry (and which is impliedly admitted in the question submitted to the court as stated between the parties) is, had the plaintiff a right to abandon to the defendant the remaining parts of the chariot which were saved, and sue as for a total loss ? My opinion is, that he had.

The part lost exceeded more than half the value of the whole chariot, the thing insured. The box being lost, the chariot cannot, with any propriety, be considered so to have arrived in specie as that it required to be repaired only to have again become a whole chariot. With respect to a chariot and every other wheel-carriage having a box, the seats for the persons to be conveyed, wheels, the perch with the axle-trees, springs and other parts affixed to it, and the pole or shafts are sometimes collectively denominated the carriage-part, as distinguished from the box and its immediate fixtures. If a wheel, or any other part of the carriage-part should be lost, or be so injured, as to be wholly unserviceable, and therefore a new part become necessary in the place of the part so lost or injured, the chariot would be said to be 7-epaired only, but if the box should be lost, or be so injured, it could not, with propriety, be said that the chariot was 1'epaired by a new box, it would be considered as a 71 ew chariot, but that the old carriage part was made to serve. The case of a vessel, put by the plaintiff’s counsel, is perfectly analogous and just. There may, as between insured and insurer, be a total loss of the vessel, although all the spars, sails and rigging may be saved. A new hull may be built and designedly of a form and burthen so as to be adapted to the spars, sails and rigging saved without any alteration in them, and be fitted out with them accordingly. This would not restore the identity of the vessel lost; as by the loss of the hull the vessel is lost; so by the loss of the box the chariot ceased to exist in specie.

Judgment for the plaintiff.


text:
    (Court of Errors.)
    Cuyler and others, Appellants, against Bradt and others, Respondents.
    tiie recital of deeds among Where several patentees bear, £u equal proportions, the expense of obtaining a patent, and by themselves, it appears they intended to purchase in common, they will be taken as tenants in common and not as joint-tenants, though the patent be to them jointly. A conveyance with a recital of the intentof a purchase, is a conveyance with notice, and tiie grantee takes, subject to trusts implied as well as expressed.
    THE appellant’s bill in the court of Chancery set forth:
    1st. A patent of the 2d June, 1688, to Van Rensselner, Van Cortlandt, Van Ness, and G. T. Van Vechten for the land called Hosick ; and,
    That no tenancy in common being expressed, the estate at law was of course-m joii7t-tenancy. "

      2d. The will of G. T. Van Vechten of the 12th March, 1703-4, devising his farm, See. and all his residuary real estate, to his sons, Johannes and Vilchert, as tenants in common, in equal parts.
    3d. The deaths of Van Rensselaer and G. T. Van Vechten, before severance of the joint-tenancy.

    4th. A conveyance afterwards of the 18th October, 1706, from Van Ness and Van Cortlandt, the surviving patentees, to Johannes, as the son of G. T. Van Vechten, which, after reciting the patent, further recites that the lands were purchased from the Indians, and the patent obtained at the joint and equal expense of the patentees ; that it was their true intent, purpose, and meaning, that they should hold as tenants in common, without any advantage by reason of joint-tenancy or survivorship. That by the death of G. T. Van Vechten and Van Rensselaer, before partition or any act to destroy or cut off the right of survivorship by reason of the joint-tenancy, according to such true intent, purpose and meaning, Van Ness and Van Cortlandt, as survivors, were, by such means, in the eye of the law, become sole proprietors ; that they having regard to . the premises, and for a nominal consideration in money, conveyed to Johannes, an equal undivided fourth part of the lands.
    5th. A conveyance from Johannes, of the 30th October, 1741, to Bradt, Brees and Van Beuren, his sons-in-law, reciting a partition of part of the lands among the proprietors, on the 20th November, 1732. when lots No. 2, 10, 11, 18, 20 and 21, fell to the share of Johannes, and lot No. 7 fell to the share of J. Van Rensselaer, and conveying to them, in consideration of thirty pounds, all such right, estate, title, interest and demand, whatsoever, as he had, or ought to have, in those lots, and the undivided land ; and-that this conveyance was cither voluntary, or if for valuable consideration, then with notice of the right or claim of Volchert.

    6th. A deduction of the title of the appellants as the representatives of Volahert ; and,
    7th. That the respondents hold as volunteers under Bradt and Brees.

    The scope of the bill then was, that the appellants might be let in for a moiety of the lands held by the respondents by title derived from Bradt and Brees, and to have an account of the rents and profits.
    To this bill the respondents demurred, and the demurrer being allowed, there was a decree of dismissal, but the decree being reversed on appeal, and the cause remanded to the court of Chancery, the respondents put in their answer, and proofs were taken.
    - The only material question as to facts contested between the parties was, whether there was sufficient evidence to find that the conveyance from Johannes to Bradt, Brees and Van Beuren, was either voluntary, or if it was for valuable consideration, then that it was with notice of the right of Volchert.

    The proofs as to these facts, were:
    1st. A partition-deed of the farm of G. T. Van Vechten, between Johannes and Volchert, of the 9th of June, 1707, reciting the will of their father.

    2d. A mortgage from Johannes to Coyeman, of the 2d September, 1723, reciting the deed from Volchert for the parcels, which, on the partition, fell to the share of Johannes, and which then constituted his farm.

    3d. A conveyance from Van Beuren to J. Van Rensselaer of the 22d May, 1749, reciting a convey•anee from Johannes to Brees, Bradt and Van Beuren, of the 12til August, 1738, for all his farm.

    4th. That on the 2d June, 1740, Brees, Bradt, and Van Beuren paid 81. Os. 2d. for Johannes to one Fresneau.

    5th. That on the 22d July, 1744-5, Bradt, Brees and Van Beuren became bound with him to one Dow for 521. 8s. 0d. and that they also became bound with him to one Staats in about 300/. but the time is not mentioned.
    6th. That Van Beuren, in 1748, sold his share of the lands under the conveyance from Johannes, of the 30th October, 1741, to one Collins, for 20/.
    7th. The deposition of Bleeker, examined as a witness. He testified that he drew the deed from Johannes to Bradt, Brees and Van Beuren, of the 30th October, 1741; that previous to the execution of it, he showed it to Volchert, who directed his son to go to the witness and tell Johannes not to execute it; that the son told Johannes he was directed by his father to desire him not to execute it; that Johannes immediately, thereupon, left the room, and after an absence of about fifteen minutes, returned and said, what shall I sign ? I have already signed to Dow and Jansen; that Bradt, Brees and Van Beuren were present, and Brees told him that he did not sign away any more than he had, and then Johannes signed it.
    On the hearing, on the bill, answer and proofs, the chancellor again decreed the bill to be dismissed, and thus assigned his reasons.
    Mr. President. I dismissed the appellant’s bill,
    1. Because the crown, having granted to the patentees jointly, no intention of the patentees to hold jn common can vary the nature of the estate, either at law or equity, from that created according to the intent of the crown, expressed in the grant.
    There is no intent that it should be otherwise expressed in the grant. The estate was in joint-tenancy* Their intention to hold as tenants in common, the estate which passed to them by the grant, cannot sever the estate that was in joint-tenancy.
    2. Because the patentees paid equal proportions of the purchase-money to the Indians. This always makes a joint-tenancy in equity, where the estate is joint in law. The reason of this is founded on what is laid down in some of the books ; namely, that it seems to be the doctrine of the court of equity, that where two or more purchase land, and advance the money in equal proportions, and take a conveyance to them and their heirs, this is a joint-tenancy; that is, a purchase of them jointly, of the chance of survivorship, which may happen to one as well as the other; but where the proportions of the money are not equal, and this appears in the deed itself, this makes them in the nature of partners ; and, however the legal estate may survive, yet the survivor shall .be considered but as trustee for the others, in proportion to the sums advanced by each of them.
    It has already been intimated, that the patentees’ having contributed equally in the expense of acquiring the land, was sufficient for the implication of a compact or trust between them, that no advantage was to be taken by survivorship, and, consequently, that the fitness of the rule here cited, might be questioned.
    This is not only altogether a refinement, but it is also evidently erroneous; because, in order to equality’ íin chance of survivorship, there ought to be equality of age, as much as equality of contribution: to this may be added, that the correctness of a court of equity would require, that the presumption that persons ever act on a calculation of chance or luck, ought to be considered as rather odious, and, therefore, never to be assumed as a ground of decision.
    3. Because, if the supposed trust is founded on any agreement between the original patentees, their heirs should have been parties to the suit, since they might, probably, have been called to show, that the conveyance to the eldest son, was conformable to the very terms of the agreement.
    4. Because the legal estate being in the defendants, and no express trust appearing, the complain, ants should show such an implied trust is as clearly out of the statute of frauds.
    5. Because the present defendants are bona fide purchasers, without notice of the claim of the complainants, Bleekefs testimony being inconclusive, as to the point of notice, particularly after so great £ lapse of time, and the death of all the parties.
    6. Because, there being no evidence of fraud, or of the commencement of a suit by Volchert Van Vechten, as set forth in the bill, and on which alone the court of appeals overruled the demurrer, and the estate having been held, for upwards of eighty years, by the purchasers under Johannes, without any suit or legal demand upon them; the court will not, after such a lapse of time, suffer them to be dispossessed by an implied trust, particularly as the estate has, probably, with many others in this conn try, increased one hundred fold by the improvements thereon within that period.
   Per Curiam, delivered by Benson, J.

As to the' question of fact above stated, it is not requisite t© ‘ say more, than that the evidence at least prepon-' derates in favour of the supposition, that the conveyance of the 30th October, 1741, although there might have been some pecuniary confederation for it, as from Brees, Bradt and Van Beuren, yet, that the greater inducement or consideration as from Johannes, xyas relationship. This rendered it more a gift than a sale. It appears, that Brees, Bradt and Van Beuren then knew of the will of G. T. Van Vechten, and of the conveyance from the surviving patentees to Johannes, so that the conveyance from Johannes to Bradt, Brees and Van Beuren, was not only voluntary, but they took xvith a notice of the right of Volchert, and either the one or the other is sufficient for the appellants.

Although the evidence is mentioned as preponderating only, the inference is not, therefore, intended to be, that if it was necessary, it could not be shoxvn to be perfectly satisfactory..

As to the question of law, or right between the par-' ties, it is to be observed, that a use is a right in one person, to have the use or profits or beneficial interest of land, and another person to have the right; that is, tobe the legal, or formal possessor or tenant of it. These uses were borrowed from the civil laxv, and introduced at first by the clergy, to evade the statutes of mortmain by procuring a natural person to hold the land, but to the use of the corporate or politic persons, the monastery, or religious house. This contrivance was afterwards used as a means to enable persons to devise, and also to prevent forfeitures by cestui que use.

The land itself could not be devised, but the use might; the land was forfeitable for crimes, but the use was not; the only remedy for cestui que use, the person having the right to the use, against his feoffee to use, the person holding the land, if he refused to let him have the use of the land, was in a court of equity. Afterwards, the statute of uses, by annexing the possession to the uses, gave the cestui que use a complete remedy at law. This produced a dis - tinction between executed and executory uses, the former being where the possession is by force of the statute, transferred to the cestui que use, so that the feoffee to the use is only, as it were, to forbear or be passive, and the use will execute itself in the cestui que use; the latter is where an act is necessary by the feoffee to the use, to execute the use, as to convey over the land, or to receive and pay over the profits, 8tc, and since the statute, executory uses have been more generally distinguished by the appellation of trusts, which hath produced different appellations for the parties; the feoffee to the use, is called the trustee ; the cestui que use is called the cestui que trust. The execution of trusts can be still compelled in equity only, and are there subject to the like rules, with uses at law ; they are assignable; they are transmissible by descent and devise, and, which is peculiarly to be attended to in the present case, the possession of the trustee is the possession of the cestui que trust, and the rights of the latter may be barred by the statute of limitations, in like manner as uses or titles at law. But trusts are implied or expressed; implied trusts are such as arise from the case, which is, therefore, the fact, and the trust is the right arising from that fact; express trusts not being to be deduced from the case itself, must be declared. No particular form, however, is requisite in declaring them, and they may be declared at any time.—Before the statute of frauds and perjuries, the evidence of the declaration might have been by parol $ it must now be by writing. Purchasers for a valuable consideration, from a trustee, do not purchase at their peril against the trust, and, therefore, they will not be adjudged to have purchased, subject to the trust, unless it is proved they had notice of it.

To apply what is here premised, to the present case—It might be insisted, that G. T. Van Vr:chten having contributed an equal fourth part of the expense in acquiring the land, that fact, therefore,, was in itself sufficient to imply an existing trust in favour of him; that he was to have an equal fourth part of the land in severalty, and that a court of equity would, accordingly, in case of his death, have compelled the surviving patentee to have conveyed a fourth part to his representatives; by the conveyance» however, from the surviving patentee to Johannes, the necessity of recurring to mere implication, for the trust is saved, the recital in that conveyance being a sufficient declaration in evidence, that such trust was expressed between the patentees, and coeval with their intention, to acquire the land; it was their true intent, purpose, and meaning, that they should hold as tenants in common, without any advantage, by reason of joint-tenancy or survivorship. The trust, therefore, being an interest devisable, a moiety of the fourth of G. T. Van Vechten passed by his will to Volchert, and the conveyance from the surviving patentees, is to be deemed the act by them in the execution of the trusts; so that Johannes, as to a moiety of the lands thereby conveyed to him, took by implication or construction of law, in trust for Volchert, and this hath been transmitted to the appellants, his representatives. Johannes not having done any act in breach of the trust, or adverse to it, so as to be considered as equivalent to a disseisin at law, until the conveyance of the 30th October, 1741, the possession, therefore, of Johannes to that time, being to be deemed the possession of Volchert, which being within sixty years, when the appellants filed their bill; and that conveyance being voluntary, or they having notice at the time, of the right of Vol-chert, the appellants are, therefore, entitled to a decree for a moiety of the lands. Laches are, nevertheless, so to be imputed to them, that it would not be proper for a court of equity to aid them, to recover the rents or profits.

It will suffice to say, as a general answer, to the reasons not specifically replied to, that it is obviously to be collected, from what has already been suggested, that with respect to the allegation in the bill, of a suit by Volchert against Johannes for the recovery of the land, it not being proved, no notice was taken of it on the hearing of this appeal, either by the court or the counsel.

Decree.—On hearing counsel on both sides, on the appeal, in this cause, this court doth adjudge and decree, that the decree of the said court of chancery hi this cause be reversed; and instead thereof, this court doth further adjudge and decree, that the respondents' do, by sufficient conveyances, convey to the appellants severally in fee simple, áccording to their respective shares or interest therein, as they have in. their bill of complaint set forth, .their title to the same, under Volchert Van Vechten, one of the residuary devisees, named in the will of Garrit 71 - Van Vechten, also in the said bill set forth, an equal undivided moiety of such of the lands, conveyed by Johannes Van Vechten, the other residuary devisee,, named in the said will, to Bernardas Bradt, Hendrick Brees, and Barent Van B'euren, by conveyance, bearing date the 30th day of October, 174-1, in the said bill mentioned, and held by the said respondents, by title derived from the said Bernardos Bradt and Hendrick Brees, or either of them, and that the said bill, as far forth as the same prays that the respondents may account for the -rents or profits of the said lands, be dismissed. And, except as to the costs intended in the decree of this court on the former appeal between the said parties, that they respectively pay. their own costs on this appeal, and which have hitherto accrued in the said court of chancery, and that, as to all such other costs as shall hereafter accrue in the said court of chancery, the respondents pay to the appellants their costs in that behalf to be taxed. And it is ordered that the said cause be remanded to the said court of chancery, and that all necessary orders and directions be there given for' carrying this decree into effect.

Decree of reversal. '


text:
    (Supreme Court.)
    Jackson ex dem. Smith against Hammond.
    Our statute of churche^&c8' íhemseivesf6 £°eestl^ e”0a" take lands by-a devise-»
    ISRAEL SMITH, being seised in fee of the premises in question, by his will of the 21st July, 1774, devised them “ to the trustees of the town of Brookhaven, and their successors for ever, upon trust and confidence, and to the intent and purpose that x x e they did, and should, after his decease, rent and hire the same to any person at their will, and pay the rents and hires thereof, after the expiration of the time, during which the same should be legally charged and incumbered with the lawful maintenance and dower of his wife, into the hands of the regular minister and other ruling officers for the time being of the Baptist Church of Christ at-.” The testator died on the 1st November, 1780, and his widow about ten years thereafter.
    The trustees of the Baptist Church had, from the death of the widow, received the rents and profits of the premises, and the defendant, at the time of the commencement of the suit, held the premises under them. The lessor of the plaintiff was heir to the testator. The trustees of the town of Brookhaven were, at the time of making the will, and then were a corporation capable to take and hold lands. The question was, “ is the plaintiff entitled to recover ?”
   Per Curiam, delivered by Benson, J.

By the law of England, and which, as such, became the law of the colonies, lands were devisable in virtue only of the statute of Henry VIII. commonly known as the statute of wills. Special customs were exceptions to the common or general law; but, being local, they formed no part of our law, and the right or P°wer to devise, granted by the statute, being expressly limited or restricted from extending to a right or power to devise to corporations, the devise in the will of Israel Smith to the trustees of Brookhaven, ought, therefore, to be adjudged void; so, that on his death the lands descended to the lessor of the plaintiff as his heir at law. This must be admitted, unless, as is contended for on the part of the defendant, by our statute of the 6th April, 1784, enabling churches, 8cc. to incorporate themselves, they are constructively, with respect to lands possessed or held by them, at the time of their incorporation, made capable to take by devise ; and that, to that end the incorporation is to relate to the death of the testator, so as to overreach the rights of all others claiming under him.

It must be acknowledged, that if the words devised and devise in the 4th section, had either been wholly omitted, or if in the sentence in which they are found, they had been made expressly to refer only to goods or chattels, there would not then have been a possible ground for a constructive capacity in these corporations to take and hold hmds also by devise; the question, therefore, between the parties may be more precisely stated to be, whether the construction contended for is necessary, in order to satisfy these words, or to give them their requisite due sense and meaning, considered as predicates or relatives, and the words lands, tenements, hereditaments, goods and chattels considered as subjects or antecedents.

The rule reddenda sunt singula singulis is obviously applicable in this case, and by a transposition, equally obvious, the sentence may be made to read “ all temporalities, whether the same consist of lands, tenements, hereditaments, goods or chattels given or granted, or of goods or chattels devised,” See. whereby a perfect, although a less extensive sense and meaning, will be given to the word devised, and its concomitant devise, and the sentence will be rendered consistent both with itself and with law, and especially with the concluding sentence in the section, “ that the trustees shall hold the church and lands thereunto belonging, by whatsoever name or person the same were purchased or had, or to them given or granted, in as Jitll a manner as if they had been legally incorporated, and made capable to take, receive, purchase, have, hold, use and enjoy the same”

The only manner in which, had they been incorporated, they were capable of taking, See. being by gift or grant, and not by devise, it is, therefore, not unworthy of notice, that in the latter sentence the word devise is omitted, and the words, given or granted only used, to which may be added, that if the construction contended for by the defendant is to obtain, then this consequence will follow, that the legislature must be supposed to have intended to give to a church a capacity to hold lands taken or acquired as it were before their incorporation, and refuse to them a capacity to take and consequently to hold lands acquired after their incorporation, and without a reason for the discrimination ; for, whether the acquisition was before or after the incorporation, or whether it was by gift or grant or by devise, was immaterial, as long as the value was within the sum limited by the statute. As to the argument deduced from the expression in the statute, “ although such gift, grant or devise may not have strictly been agreeable to the rigid rules of law,” and that the restriction or limitation in the statute of wills from devising to corpora tions is to be considered in the nature of a strict or rigid rule of law, and therefore intended to be dispensed* with by these provisional expressions, it would be sufficient to observe, that it is only colourable at best •

I will, however, in answer, state, that if the will in the present instance had, after the possession and incorporation of the Baptist church, the cestui que trust in it, been discovered to have been attested by only two witnesses, the heir at law would be entitled to recover the lands; this I assume, as unnecessary to be demonstrated, and therefore, if the expressions cited were not competent to cure a mere imperfe'etion in the devise, surely they must be less so wholly to create a devise ; if they must yield to the rule, and of questionable utility in the statute of frauds, much more must they yield to the rule confessedly highly provident in the statute of wills. I will only add, "that supposing the statute of Henry VIII. never to have passed, and that we had not had, as was the fact, any statute of wills of our own, till the present one of 1787, would the incorporating statute now under consideration, in such case have been deemed impliedly to alter the common law, so far as to give a right to devise to a church, congregation, or other religious society only ? if not, and the statute of Henry VIII. having passed, and with the express restriction or limitation already mentioned, should we now, therefore, decide for the defendant, will it not follow from the decision, that terms less explicit and less forcible will suffice for an implied enlargement or extension of an express restriction or limitation in a grant of a right or power, than for an implied right or power, no otherwise to be considered as prohibited, except as it liath never been positively granted? Where shall we find the rule or principle for the difference in this * * respect' in the two cases ? My opinion is'that the words devised and devise in the statute, refer only to goods and chattels, and that to make them refer also to lands, tenements, and hereditaments, would be a construction too extensive "to be warranted by law, and consequently that there must be judgment for the plaintiff

Judgment for the plaintiff accordingly.


author: Per Curiam.

text:
    .(Supreme Court.)
    Browne and others against Robinson and Hartshorne.
    Where goods are sold by a known factor of a house, a set-off cannot bemadeagainst them by the purchaser, for a debt due from the factor in his own right, if the goods be actually those of his principal, though the factor do carry cm business for himself,and nothing be said at the time of sale respecting the ownership of the goods. On a sale by the knownfactor of a house, the principal may immediately maintain an action against the vendee. Factors in jVew-York may, by custom, sell on a credit, at the risk of their principal.
    ON a motion, by the defendant, to set aside the verdict in this cause, Mr. Justice Lewis, before-whom it was tried at the October term, 1799, made the following report.
    {S This was an action of assumpsit,, for iron sold and delivered by the plaintiffs to the defendants.— Plea, the general issue. At the trial, the plaintiffs produced, as a witness, Henry B. Franklin, late a clerk of Nicholas Cooke, formerly of the city of New- York, merchant, deceased, who proved, that the iron mentioned in the declaration, was consigned by the plaintiffs to Cooke, to be sold by him, as their factor. That on or about the 7th day of November, 1796, as nearly as the witness could recollect, Cooke sold the iron to the defendants for the sum of 1080 dollars, payable at seventy days; but at the time of such sale, no notice was given to the defendants (nor was any evidence offered, to show that they knew) that the sale was made by CooJce, as factor or agent, for the plaintiffs, or any other persons. He testified, however, that it was generally known that Cooke was factor to the plaintiffs ; but that he then transacted business as well on his own account, as upon commission.
    “ That after the delivery of the iron, and before the death of Cooke, the witness, as his clerk, called upon the defendants with a bill of parcels for the same, and requested their note for the amount, which they refused to give, alleging, that they held a note given to them by Cooke, for nearly the same amount, which would fall due about the same time, and that they'intended to set it off against the amount of the iron. They at the same time showed the note to the witness./
    “ That Cooke was, at the time of the sale, and until, and at his death, indebted to the plaintiffs in the sum of 20,000 dollars and upwards. That after his death, and before the expiration of the credit of seventy days, one of the plaintiffs called with the witness, upon the defendants, and informed them that the iron was sold by Cooke, as factor of the plaintiffs, and, at the same time, gave notice, that they should expect payment of the same, upon which, one of the defendants answered to the plaintiff, that he did not know him, and would not pay him. It also appeared, that one of the plaintiffs, after the above conversation, became the administrator of Cooke's estate. It was also proved, that it is the custom of New-York for factors to sell on credit at the risk of the principal, and that it was the uniform usage in Cooke's store, to sell agreeably to such custom, and that in this case, the goods were sold at the plaintiff's risk upon the common commission in such cases. The plaintiffs there rested their cause, and the defendants moved for a nonsuit, upon the ground that no offer of indemnity against the claims of Cooke, or his representatives, had been made by the plaintiffs to the defendants, which motion was overruled by the judge.
    “ On the part of the defendants, evidence was then offered to be produced, that at the time of the sale of the said goods, and notice to pay the plaintiffs, they held Cooke's note, dated the 22d July, 1796. for 1080 dollars and 25 cents, payable in six months after the date, and that they had since held, and still did hold it, which note was intended to be offered as a payment. This evidence was objected to by the counsel for the plaintiffs, as inadmissible under the present issue, and that it would be equally so, if a notice had been annexed to the plea. Whereupon the judge rejected that evidence, and directed the jury, that the law was with the plaintiffs, and that the note of Cooke could not be set off under this issue. Upon which, the jury found a verdict for the plaintiffs for the price of the iron, with interest, from the expiration of the seventy days credit.”
   Per Curiam.

Where goods are purchased from a factor scienter, with intent by the purchaser, to set off against the purchase, a demand which he may have against the factor, the principal may, in such case, and as on a sale made immediately by himself, have a suit against the purchaser, at any time before payment to the factor, every purchase so made with intent solely thereby to obtain payment or security from the factor being, as against the principal, Jrauduloit.

Motion refused. -


author: Kent, J. N. B. Lansing, C. J.

text:
    (Court of Errors.)
    William Laight and others against John Morgan and others.
    Where a bill ' seeks an examination of witnesses de bene esse, on account of age, &c. an affidavit of the facts on which the application is founded, is necessary. So on a bill to have a title established, and for quiet possession j for whenever a bill seeks to transfer a matter cognisable by law to chancery, an affidavit of the facts, on which it is required, should be stated. When a bill requires an affidavit to some parts, and not to others, ademur- ’ rer to the whole for want of that affidavit is bad.
    THE substance and points of this case are so well stated in the decision of the court, that it is unnecessary to do more than give the opinion on .which it was pronounced.
   Kent, J.

The bill of complaint in the cause, appears to have had three objects, viz.

To obtain a discovery of facts from the defendants; to perpetuate testimony; and to obtain specific relief.

Upon the demurrer to the whole bill, there were seven causes of demurrer assigned. The three last causes were assigned in the same words, as in the similar case of Le Roy and others v. Service and others, which was before the court the last year, and by the decision then, are to be deemed as having been overruled. The fourth cause of demurrer, was abandoned by the counsel for the respondents upon the argument as untenable. If the third cause be not equally so, it is, perhaps, not material in the present case, since, as I shall presently show, the decision of this cause finally depends upon this single point, viz. if any part of the bill requires an answer, is a demurrer to the whole bill good ?

I confine myself, therefore, to the consideration of these two questions, as arising out of the two first causes of demurrer.

1;— To what objects, if any, in the bill, was an affidavit requisite. •

2. If not for every object, is a demurrer to the whole bill, for the want of such affidavit, maintainable?

1. The bill alleges the loss of papers material to the complainants’ title, and seeks a discovery concerning them from the defendants. This is a matter within the ordinary and proper jurisdiction of a court of equity, and so far it is conceded that the bill did not require an affidavit. The bill further seeks for the examination de bene esse of witnesses, who are alleged to be aged or infirm, or resident abroad, and for this purpose, I conceive that an affidavit was requisite, by the practice of the court, stating generally, the age,. infirmity, and place of residence of the witnesses, and as no affidavit of this kind was put in during any stage of the cause, a demurrer to that part of the bill, might have been good. The bill finally prays to have the title of the complainants to two tracts of land established, and quiet possession given to them. This is a matter properly of legal jurisdiction, and relievable by the courts of common law; and, for this reason, I deem an affidavit to the truth of the material facts stated in the bill, to have been requisite.

It appears to me to be an established, as well as a reasonable and fit rule, that whenever a bill seeks to transfer to chancery, a question properly cognisable by the courts of law, the facts rendering such transfer proper, must be verified by oath; so that a suitor .jshall not, upon mere suggestion or pretext, break in upon and disturb the settled boundaries of the courts of justice.

As, therefore, the bill in respect to one object, the discovery, did not require an affidavit, and in respect to the other two objects, to wit,- the examination of witnesses, and the relief, did require one, this leads me to consider,

2. The second question, viz. whether a demurrer to the whole bill, for the want of such affidavit, be good.

It is an established and convenient rule of pleading, in chancery, that you may meet a complainant’s bill by several modes of defence. You may demur to one part, answer to another, plead to a third, and disclaim to a fourth part of the bill. If, therefore, a bill seeks a discovery of a matter which is proper, and likewise seeks discovery of other matter, which is not proper; as, for instance, matter which would charge the defendant with a crime, the defendant must answer to the proper, and may demur to the improper questions put to him, or he may answer to the proper questions, taking no notice of the residue. So, if a bill, as in the present case, seeks for a discovery, and also for relief, consequential to such discovery, the bill being good for the one object, without affidavit, and not for the other, the defendant ought to meet the sound part of the bill by an answer, and be left to his own option whether he will demur or not, to the other part.

I do not find any authoritative rule declaring that if a bill be bad in part only, and good in other parts, the whole bill thereby becomes vitiated, and will be dismissed on a general demurrer. The settled rule is most assuredly otherwise, and a bill, combining discover}'- and relief, without affidavit, though liable to demurrer, as to the relief sought, shall, nevertheless, be retained and supported for the purpose of discovery.

A different rule would be very inconvenient and unnecessarily grievous. To support a demurrer to a whole bill, when part of it, had that part been separate and distinct, would have required an answer, is to send a party back to travel the same ground over again, with much expense and loss of time, and to no useful purpose. He must file the same bill anew, with the omission only, of the exceptionable prayers, and repeat the former process for bringing the defendant into court, who, when he arrives, will be in no better situation, than he was before; since the same answer, which might have been sufficient, and the same consequences which the defendant might have commanded then, must follow nova..

I am, accordingly, of opinion, that the demurrer which, instead of being confined to the exceptionable parts of the bill, went to the whole bill, ought to have been overruled, and, consequently, that the decree of the court of chancery, allowing the demurrer of the respondents, and dismissing the bill of the appellants, must be reversed.

Judgment of reversal unanimously.

N. B. Lansing, C. J.

though he coincided in the judgment of the court, said, that a bill for discovery and relief, without affidavit, was a nullity and a general demurrer to the whole bill good.


text:
    Ludlow against Dale.

      The opinion of Mr. Justice Kent, in this cause, having been referred to in his argument on the conclusiveness of foreign sentences,

       is given now, as it was not till the preceding sheet was worked off, that it came to the hands of the compiler.

    THIS was an action on a policy of insurance on the schooner Paragon and her cargo, from Aux Cayes, or any other port in Hispaniola, to the United States, and warranted American. The insurance was effected for Moses Myers, of Virginia, and the vessel was captured by a British frigate on her return from St. Domingo, laden with the produce of that island, and was carried into Jamaica ; and by the vice-admiralty court of that island was condemned as good and lawful prize.
    Two questions have arisen on this case.
    1. Whether the sentence of the admiralty concludes all further inquiry respecting the neutrality of the property.

      2. If it does not, whether the testimony offered, appears to warrant the sentence of condemnation at Jamaica,

         Ante,page 259.

   When this cause was argued at the last July term, I observed, with some surprise, that the counsel on each side, seemed in a great degree to abandon the first point, and taking it for granted, that the question on the warranty was still open, they entered fully, and, I think, with much force and ability, into a discussion of the several matters of fact, on which the proceedings in the admiralty must have been founded. I shall, however, confine myself to the consideration of the first question, because, in my opinion, that alone governs the cause. If the sentence of condemnation by a foreign court of admiralty, be conclusive, over the question of neutral property, it is unnecessary to examine any further. If it be not conclusive, and the question is still open for discussion, it is then a question of fact to be submitted to a jury, and we have nothing to do with it, other than to send it back to the proper tribunal.

It is a clear and settled principle of law, that the sentence of a court of competent jurisdiction is, as to the direct point under decision, conclusive upon all other courts of the state, within whose limits it be pronounced.

Even foreign decrees, whether sustaining a claim or dismissing it, are generally, from a regard to utility, and ex comitate, received with respect, and held binding, unless there be some very cogent reasons against them, by the regular tribunal of all other nations, where the administration of justice is orderly and civilized.

But the sentence of foreign courts of admiralty, are especially, received as binding, because they proceed upon general principles of the law of nations, applicable to all suitors, and of universal extent and reception. As these courts are all governed by one and the same law, equally known to every country, and equally open to all the world, all persons are, therefore, concluded by their sentences, in cases within their jurisdiction. We find, accordingly, the English courts, as early as the reign of Charles II. regarding the decision of the French admiralty in a question of prize, as conclusive upon them, though at that time, England was a neutral, and France a belligerent power, and the judges observed, that sentences in courts of admiralty ought to bind generally, according to thejus gentium.

Lord Holt more than once recognised thip law, and gave it the sanction of his great name.

In modern times, when the law of nations and' commercial law, have been more correctly defined, the doctrine, that sentences of foreign admiralties were conclusive, has been admitted in the fullest latitude, and the English court of K. B. have repeatedly and unanimously decided, that condemnation in a foreign court of admiralty, of property warranted neutral, as enemy’s property, was conclusive evidence against the insured, of a breach of his warranty.

These several decisions, while they incontrovertibly establish the doctrine, that if no special ground of condemnation appears, but the property is condemned generally as enemy’s property, or as good and lawful prize, other courts are bound to consider the decree as decisive evidence, that the property was not neutral; yet they, at the same time admit, that if the foreign sentence be so ambiguous as to render it difficult to say on what ground the decision turned, or if there be colour to presume the admiralty proceeded on matter not relevant to the issue, evidence will be let in to explain. So if a sentence be on the face of it unjust, and reasons are given for it,, manifestly illegal, and against the law of nations, other courts have a right to judge of these reasons, and to determine on their validity, and this was the amount of the decision of this court in the case of Smith v. Murray and Mumford.

The English law thus understood and explained, I consideras no novel doctrine, but a part of the common law of the land. It is, indeed, the prevailing usage of all countries, whose jurisprudence is enlightened., and whose administration is regular. It could not exist in the civil laiv, because the whole known world was subject to the Roman empire; but in countries where the civil law has been adopted and modified, the same principle prevails, and a person condemned by a sentence of a foreign court, confessedly competent in the case, can have no redress, but by a court which has power to reverse the decree.

The decree of the admiralty of Jamaica cannot be said to be res inter alios acta. The assured, in the present case, was a party to the suit instituted, and the condemnation had there; he applies here to have the same question agitated there, and which was decided against him, tried anew ; the question, whether his property, which he had warranted to be American, had the requisite insignia to entitle it to the privilege of neutrality.

I shall forbear to give any opinion on the testimony which was produced and commented upon at the argument, because I am of opinion it is totally irrelevant in the present case, and that the sentence of condemnation being direct, so as to induce a necessary conclusion that neutral or enemy’s property was the point in issue and decided; and containing nothing which appears contrary to the law of nations, is decisive against the plaintiffs, and that judgment ought to be rendered for the defendants.

k