author:
      Per Curiam.
     Lewis, Ch. J. Kent, J.

text:
    Hart against Hosack.
    An accountable receipt given for a note borrowed, should be taken up when the note is settled. A child of fourteen years, put with a physician on trial, to see how he would like the profession, cannot make an election to become a student, so as to charge the parent with an apprentice-fee. In Hew York, no fixed rate of fees for taking apprentices in the medical line.
    Assumpsit for money lent and advanced, for money had $nd received; plea, nun-assumpsit and payment, with notice of set off. The plaintiff proved, and gave in evidence the following promissory note:
    “ Sixty days after date, I promise to pay Dr. David Hos-sack, or order, three hundred and seventy-five dollars, value rec’d. 1ST. York, 5th February, 1800. Eph’m. Hart.” The plaintiff also proved, that he paid this note when it was due; and in addition proved, and gave in evidence the following accountable receipt:

      *“ I promise to ACCOUNT with Eph’m. Hart for his note payable to me for. three hundred and seventy-five dollars, dated this day, at sixty days. N. York, 6th February, 1800. David Hosack.” From the facts of a case reserved, it appeared that the defendant is a physician, and alleged that the note was intended as an apprentice-fee for taking the plaintiff’s son. In support of this defence, the defendant called witnesses, who testified that the plaintiff’s son came to the defendant the latter part of the year one thousand seven hundred and ninety-nine, and continued with him till the spring of one thousand eight hundred ; that the son was considered in the defendant’s shop as a student; that the witness understood from the son, that he was to be some time on trial; but the witness did not hear him say how long; that the defendant’s usual apprentice-fee is three hundred and seventy-five dollars; and the witness paid this fee to the defendant when the witness commenced his studies; that the witness has heard the son say he was to pay the defendant a fee of three hundred and seventy-five dollars; that the son had a ticket for the hospital, which was obtained for him by the defendant, and is only granted to regular students, and it would have cost five dollars to any other person ; that the son had free admission to the defendant’s libfary, and used his books; that one of the witnesses gave the defendant only one hundred and fifty dollars as a fee, owing to particular circumstances ; that the son, after being about three months with the defendant, said he had been upon trial, but that he was now a regular student; that the son was a boy of about fourteen years of age; that the defendant’s usual term of apprenticeship is three years; but there is no particular period fixed by agreement; that he had heard several physicians say that it was not usual to return an apprentice-fee; and one witness stated, that he had known an instance in which a return of the fee was refused.
    Elias Noah, on the part of the plaintiff, deposed, that he was very intimate in the plaintiff’s family; that the defendant, by letter, which the witness saw and read, informed the plaintiff he had occasion for money, and applied to the plaintiff to borrow his note. Upon this, the plaintiff made and delivered to the defendant the note above mentioned, and the defendant signed and delivered the receipt above mentioned; the witness always considered the transaction as a loan by the ^plaintiff to the defendant, [*27] and nothing else; that the witness several times met with the defendant in the plaintiff’s family; that the defendant was very solicitous to have the plaintiff’s son come and study physic with him; that the defendant used much persuasion for this purpose, both with the’plaintiff and with his son; that finally, the plaintiff and his son consented that the son should study physic with the defendant; that it was expressly agreed between the plaintiff and the defendant, that the plaintiff’s son, if he went to study physic with the defendant, should have a right to quit the defendant whenever the plaintiff’s son pleased to do so; that the son, after this agreement, went to study physic with the defendant; that he attended the defendant’s shop but irregularly ; that he adopted, after being some months with the defendant, an opinion, that he could not, from the acquaintance he had formed in New York, pursue his studies as closely as he ought to; and thereupon, he left the defendant, and went to Europe; that the witness always understood that the son was merely on trial with the defendant.
    The Judge charged, that this case did not depend on any general custom of the faculty, or of this defendant, in relation to the fee in question; but op. the particular agreement; that the defendant had, no doubt, a right to fix what price he thought proper for his students; but, whatever might be his established fee, he was bound by an agreement he had made; that, on this subject, little dependence ought to be placed on the declarations of the plaintiff’s son, who was no more than fourteen years of age; particularly, as he must be considered as under the control oi. his father. Neither ought much stress, in his opinion, to be laid upon the circumstance of the defendant’s procuring the son a ticket for the hospital; as his father, or the defendant, might have thought it proper to procure the son a ticket, although he was merely on trial with the defendant ; that if the j ury believed that the son'had gone to study with the defendant on trial, that the time for trial had elapsed, and that afterwards, the plaintiff and his. son had elected that the son should continue and serve his apprenticeship with the defendant, then it would be their duty to find a verdict for the defendant; but if they believed that the son was with the defendant on trial, and that, by [*28] virtue of an agreement between the plaintiff *and defendant, the son was entitled to leave the defendant whenever the son disliked to remain with the defend-' ant, then it would be their duty to find á verdict for the plaintiff; deducting, however, from the damages, a reasonable allowance for the time the son was with the defendant
    The jury found a verdict for the defendant.
    On the above facts, it was now moved, on the part of the plaintiff, to set it aside, as contrary to evidence.
    Troup, for the plaintiff.
    The action was to recover money lent; the defence, that it was given as an- apprentice-fee. The question then is, whether, from the evidence, it was a loan or a payment. That it was the former, is manifest from the evidence of Noah, who saw the defendant’s letter asking to borrow money. If the money was a payment, it was singular a request should' be made to have it lent. It is not usual for creditors to’ borrow their debts due, and give accountable receipts for the amount. The agreement on which the plaintiff’s son went is expressly proved; he was to leave the defendant when he pleased; and the receipt was, therefore, worded as an accountable" one; becaitse, if the son did not continue to complete his studies, only a proportionable sum was to be paid. The plaintiff did not contend the three hundred and seventy-five dollars were to be recovered without deduction; but that the defendant was not entitled to the whole, against his agreement and his receipt. No argument could be drawn from the election of the son, had it been clearly established: he was .only fourteen years of age, and could not elect without the concurrence, and under the control, of his father. As to the defendant’s witnesses, their testimony went to facts perfectly immaterial: the ground of the suit was the agreement; by that, no time was specified for electing to leave the defendant: whenever the election was made, and the plaintiff’s son did leave the defendant, he was, upon his receipt, to account; and, for so much of the usual tune of studying under the tuition of the defendant as was unexpired, a deduction was to be made: thus, and thus only, the contract in evidence, and the receipt, could be consistently explained.

      Pendleton and Hoffman, for the defendant.
    The application can succeed only on two grounds; either that the verdict is against the weight of evidence, or against a rule of law arising out'of the *facts. To decide on [-29] the first, the court must assume the office of jurors, and this they never do where there is evidence on. both sides, unless it is by much the strongest on one side. The jury here have decided on the credibility of the witnesses; the court will not interfere with their province in that respect, to give another opportunity to weigh the credit of the same witnesses. This was never done, but when the testimony was by foreign witnesses, and taken abroad; then the court would do it to procure evidence of their credibility, because the jury must be ignorant of it'; therefore, knowing only the credit of their own countrymen, they could not weigh it with that of foreigners residing abroad. The note for three hundred and seventy-five dollars, made by the plaintiff when his son was upon trial, was the reason of the accountable receipt. It was not an engagement to repay a loan, but to be accountable on a contingency, whether the son would be a student or not; there was no precise time for this: the son was on trial; when he chose to be a student, the trial terminated, the account was complied with; and there was to be no return; for the sum was fairly due. The dates of the transactions prove this ; and afterwards the son is found to be a student by having a certificate gratis, which none but students could obtain without paying five dollars. The court must suppose him a student, or that the defendant had been guilty of a fraud, by signing a false certificate. Noah says the son was to determine whether he would be a student or not, and the other witnesses say the son did elect to become one. Noah swears positively to a fact he could not positively know, the destruction or loss of the letter, in which the defendant applied to the plaintiff to borrow money: and it is very singular he should apply to borrow the very sum due him for a fee, and that the application should be to the very man whose son was a student with him, in preference to all others. The reason why the receipt was an accountable one, was not because no time was fixed for the plaintiff’s son to make an election, but because the defendant was not to be accountable after the trial had.
    This construction is that which the jury put on the transaction.
    A pro rata accountability, for one or two years, [*30] when it might please the son of the plaintiff to *leave the defendant, was absurd in the case of either a student of law or physic. If, however, the inference from the facts was doubtful, the jury have drawn a conclusion which, according to legal principles, must be decisive..

      Harison, in reply.
    The plaintiff is contending for his fair and just rights: if injustice has been done, this court will interpose, and grant a new trial. It is admitted that there was a period when the whole fee was not due; that is in evidence: there is no proof that at the end of four or five months the defendant could erect himself into a judge, and think himself entitled to the same fee as if the plaintiff’s son had staid with him four or five years. The principle insisted on by the plaintiff is one that is found in every volume of law. Chancery is full of decisions of apportionment of apprentice fees,  which depend entirely on the quantum, of services mutually rendered. This is the constant rule of acting, unless some custom or usage of trade to the contrary, be established. Of this there is no kind of evidence: the defendant cannot make and set up one for himself. On this point, the defendant’s witnesses speak only as to hearsay, and give one solitary instance of a custom, as it has been called. The usage, then, is out of the question; and the question depends on the agreement; of this, Noah’s testimony is conclusive: it is also uncontra• dieted; and from his situation, connected with his acquaintance in the family, it is highly probable he knew all the circumstances of the contract better than any one else: nor could any one but Noah prove the loss of the letter asking a loan of money. He had seen and read the letter; and is it to be supposed the plaintiff would not have produced the letter, if he had been able ? As he was not, and could not prove the loss himself, Noah only could do it; who, like all other third persons in similar situations, swears to his firm belief. A belief warranted by reason, and the question I have just asked. The agreement on which the son was taken, and the note given, is the only evidence that can affect the cause. The defendant’s witnesses neither do nor can, speak to this. The certificate, use of the defendant’s books, &c., are nothing to the purpose. We find the defendant acting with peculiar solicitude to get the plain- ■ tiff’s son as a student; and the extraordinary liberality of the defendant’s agreement, might not, if taken as [*31] the result of his anxious entreaty, be ^thought so absurd as has been argued. The son was not obliged to elect when the note was due : no proof of the contrary;.if it was so, and then the fee was payable, and the note accounted for, how comes it that the defendant never calls upon the plaintiff for the accountable receipt, hut leaves it to be produced and made use of against him? Had the fee been absolutely due, at the end of sixty days, ■ che receipt ought to have been demanded; and, as the plaintiff took up his bill, the defendant should have taken up his receipt. The defence of Doctor Hosack is to demand wages for labor not done; is contrary to every principle of natural justice, and, therefore, the court will grant a new trial.

         The researches of the reporter do not afford an authority for this distinction.

        а) On the bankruptcy of a. master, the apprentice-fee is generally apportioned ; the apprentice (or perhaps his father) being permitted to come in as a creditor, for the balance, after deducting a compensation to the master for the time served, (Ex parte Sandby, 1 Atk. 149,) or allowing the apprentice a gross sum out of the estate. Barwell v. Ward, Ibid, 261. Where a master turned away an apprentice on account of ill behaviour, and the indentures had not been enrolled, (note this,) chancery has ordered thirty pounds out of forty-five to be returned, Thurman v. Abel, 2 Vern. 64. But unless in the cases of bankruptcy and death of the master, the jurisdiction of the court of chancery seems very doubtful. Argles v. Heaseman, 1 Atk. 518. Dillan's Case, 1 Salk. 67; 1 Rev. Laws, 189, s. 9.

        Newton v. Rouse, 1 Vern. 460, one hundred guineas, part of an apprentice-fee, was ordered to be re-paid, the master having died within three weeks after signing the articles, though they expressly mentioned sixty pounds only-should be returned, if the master died within a year. But see Hale v. Webb, 2 Bro. Ch. Rep. 80, where Lord Kenyon, then master of the rolls, said, tho decision above had carried the jurisdiction as far as could be.

   Per Curiam.

The plaintiff, on the trial of this cause, gave in evidence a promissory note of his own to the defendant. Elias Noah proves that this note was borrowed of the plaintiff by the defendant, on giving a receipt, promising to be accountable to him for it. The defence set up is, that the note was a fee to the defendant foi taking the plaintiff’s son as an apprentice. A motion has been made to set aside the verdict, as against evidence, and obtain a new trial. This, the court are of opinion, ought to be granted.

The receipt given by the defendant, which was never taken up or called for, and the testimony of Noah, both agree in proving the money to have been advanced upon Joan; this testimony remains in full force, notwithstanding any thing that was proven on the part of the defendant. "What is related of the son, that he was to be some time on trial, is in confirmation of the agreement stated by the plaintiff's witness. The only circumstance of any weight on the part of the defendant, is the further confession of the son that he was to pay three hundred and seventy-five dollars, and that he had been some time on trial, and was then a regular student. But this confession by the son, without the knowledge or authority of the plaintiff, ought not to conclude him. The fact, too, that the son.soon after left the defendant, and went to Europe, proves that the reservation in the original agreement had not been waived. In short, the evidence does not warrant a verdict for the defendant; and a new trial must be awarded on payment .of costs.

Lewis, Ch. J.

If the plaintiff is satisfied that a proportion should be paid, might not a new trial be saved ?

*Troup. There is a verdict for the defendant.

Kent, J.

Is there no objection- to allow for five months, at the rate of the sum usually paid for three years ?

Troup. None, if we can get rid of the verdict.

The parties not agreeing,

Rule for new trial granted.

       On the new trial a second verdict was rendered in favor of the defendant.


source: Caselaw Access Project

author:
Lewis, Ch. J.
      Jones.
     Lewis, Ch. J.
      Per Curiam.

license: Public Domain

text:
    Dow against Smith.
    • Two hands, including the master, are not a sufficient crew for a vessel of 35 or 40 tons, from New-York to Edenton, in North Carolina, and the court will decide on the insufficiency.
    An adjustment made on a full disclosure of all circumstances is conclusive, though some may be suspicious. Adjustment not to be opened except for fraud, or a mistake from facts not known.
    This was an action upon an adjustment at sixty per cent, on a policy of insurance, upon the schooner Industry, from Hew-York to Edenton, in Horth Carolina, valued at five hundred pounds.
    The policy was dated the 4th of April, 1795 ; on the 16th of the same month was made.
    At the trial of the cause before Mr. Justice Lewis, on the 3d of July, 1801, the plaintiff produced the adjustment, and there rested his cause.
    The defence set up was fraud. To prove it, the deposi tian of one Jonathan Stratton was adduced, stating, that in March, 1795, he sailed from the port of Hew-York, in the Industry; that there were no other persons but Joseph Dow, the master, and himself on board; that Dow said, the schooner was going to South Bay, on Long-Island, for which place the deponent was shipped; that the schooner had no cargo or ballast on board, but had provisions usual to go from Hew York to South Bay; that the schooner got aground on the beach, on the Jersey shore; that in a day or two after the accident, the captain left the schooner and went to Hew York, and returned to this deponent about a week after, and informed the deponent he had been to Hew York; that the schooner, to go to Horth Carolina, ought to have had four hands, including the master; thinks the scnooner was about forty tons burden; that he never was at Horth Carolina, and does not particularly know the navi gation, but has an idea of the necessity of four hands.

      To rebut this, the plaintiff showed the deposition of Joseph Dow, which stated, that about the 25th of March, 1795, he sailed from the port of New York, in the Industry, as master, on a voyage from thence to Edenton, *in North Carolina; that Jonathan Stratton was [*33] the only mariner on board, together with this deponent ; that another hand was engaged to go, but that he fell sick, and left the vessel before she sailed; that he was not in New York until he came with Stratton, after the said vessel had grounded, nor did he ever inform Stratton that he had been in New York while he was so absent from the vessel as aforesaidthat there was no cargo on board, but the witness had between five and six hundred dollars, some in specie and some in bank notes, for the purpose of purchasing naval stores; that the money was not insured; that the schooner was about thirty-five tons.
    To discredit Stratton, the plaintiff read a protest made before John Keese, Esq., a notary public, in which the said Stratton had joined, which was as follows:
    Before me personally came and appeared Joseph Dow, late master, and Jonathan Stratton, late mariner, of the pettiauger Industry, who, being duly sworn, depose as follows : That they sailed in and with the said pettiauger from. Coney Island the twenty-sixth day of March last, in ballast, bound to Edenton, in North Carolina, with a light breeze from the westward; that about one o’clock in the afternoon of the same day, the wind haled round to the north, and from that to the northeast, and then to the east, and then began to blow so hard that they were forced to take single reefs in the sails, and take in the jib, and soon after to double reef the sails: at four o’clock the wind blew so violent that it split the foresail so much that they could not set it: they then set the jib, and made the best of their way for Sandy Hook, and on the twenty-seventh got round the Hook, and then the sails were so much frozen that they could not handle them; that they were obliged to let go their largest anchor, but a very heavy sea running, and the vessel pitching bowsprit under, she parted; that they ' then endeavored to claw off shore, but the gale continuing very severe, and the mainmast sprung, and the vessel very leaky, they were under the necessity of running the vessel on shore on a sandy beach, in order to save her, and for the preservation of their lives; that they used every exertion in their power to get the vessel off, but without any effect.
    *Upon this testimony, the jury found for the plaintiff.
    Hoffman,
    on behalf of the defendant, now moved to set aside the verdict, as against law and evidence; for fraud, and unseaworthiness. The facts, he argued, were sufficien! to bear down any erroneous conclusion which had bee::, made. • The adjustment, on which the action is founded, was manifestly obtained by fraud, and the testimony coul. I never induce a contrary opinion. The verdict is not only thus against evidence, but against law ; for there was not a sufficient crew on leaving Hew York. • Heither this circumstance, nor any other, was communicated to the insurers; the vessel was aground in South Bay on the 26th of March, and on the 4th of April there was no information of it in Hew York. This is enough to excite suspicion. From the deposition of Stratton it appears the captain went to Hew York, and the policy is effected on the 4th of April, Avhen the vessel is laying aground. If he had tried to procure assistance, that should ha\*e been proved by "those he applied to. From the time of her getting on shore, notice of her situation might have been sent to Hew York by land in tAventy-four hours; by sea in less. This Avas like the case of Fitzherbert v. Mather, 1 D. & E. 12. There the agent of the plaintiff had sent orders for insurance by the post-, but was informed of the loss of the vessel before the post went out, and did not contradict them: it was held to vacate the policy, because a concealment of a fact, that might have been made known. So here the captain was to this purpose the agent of the underwriter. The vessel, too, had no ballast on board when she left- New York; the policy was at and from, and it was impossible to take it in at Coney Island, in the course of the night, so as to sail by daybreak next morning, with only one hand and a yawl, At all events, the going there was a deviation, as no usage is found to warrant it. The want of a bill of lading for the seven or eight hundred dollars, stated by the captain to have been aboard, must be taken- as a supplementary circumstance to impeach his credibility, especially as he is contradicted in essential points by Stratton. But on the testimony of both, the insufficiency of the crew appears • for two hands could not be adequate to the working a vesof forty tons, as she is stated by one, or even thirty-five, as by the other. That on the incompetency of the crew the court had *a right to determine in the [*85] same manner as on the point of seaworthiness.

      Jones, contra.
    This motion is made on two grounds: fraud, and the want of a crew. The court will observe, that the action is brought after an. adjustment, and therefore will demand very strong reasons for setting aside the verdict. It is remarkable, that every circumstance now relied on might have been availed of at the trial, and was in the full knowledge of the underwriter when he made the adjustment: for, by the protest submitted to the defendant, on the facts set forth, in which he made his adjustment, it appears every fact, date of sailing, &c., was told him. This protest was made on the 15th of April, and the adjustment on the 17th, with no other proof of loss submitted than the protest itself. In this Stratton joined; and, from the size of the vessel, the defendant must have known it was her • whole crew. Every thing, therefore, was taken into consideration before the adjustment; and it was made, it being thought there was not any grounds to warrant a refusal to ' pay. The captain denies going to New York when he first landed: this was a point of who should bé believed, the master or Stratton: the jury have decided. No one ever saw him in New York. There is no evidence of communication between the captain and plaintiff who resided at Islip, forty miles from New - York. On his arrival at New York he heard of a very severe gale of wind; it was a few days after his vessel sailed, and therefore he insured her. Fitzherbert v. Mather does not apply. There the agent was employed for the express purpose of making an insurance, and though a captain be an owner’s agent, he is not an agent to insure. In the case cited the agent had ordered the insurance; he, therefore, was the person to communicate. The crew was sufficient; the vessel.was only one of the South Bay craft, the captain says of thirty-five, not forty tons.

         A protest, though not evidence in chief, is admissible o contradict the testimony of the person by whom made. 2 Esp. Rep. 490.

         This position must, it is presumed, be taken with some qualification Whether it shall be within the province of the bench or the jury, depends, it is conceived, on its nature; if it be technical only, it appertains to the bench; if actual and matter of fact, to the jury. On the accuracy of this distinction the reader can decide by recurring to the case of Munro v. Vandam, Park, 221, note, and that oí Farmer v. Legg, 1 D. & E. 186, botli cited 1 Lex. Mer. Am. 309, 311. But in a case where the only circumstance was, that the vessel went down at once without any apparent cause, the supreme court decided that she was unseawortliy upon a ease reserved.
      Whether a vessel be seaworthy or not is a question of fact for the jury. Patrick v Ilállett and Bovine, 1 Johns. Rep. 241. And on a demurrer to evidence, the circumstance of suddenly springing aleak, without any apparent cause, but in consequence of which the vessel is lost, is not sufficient to presume she was unseawortliy, if there be testimony that she was seaworthy at her sailing. Ibid. But when such an event is stated in a case reserved, and the evidence of seaworthiness is not made out, the court will presume she was unseaworthy. Takot v. Marine Ins. Co., 2 Johns. Rep. 130.

   Lewis, Ch. J.

Both may be right: one may speak of carpenters’ measurement, the other that of the customhouse.

Jones.

Not being seaworthy for want of a crew, is a matter of fact for a jury-: and on that they have determined ; their verdict, therefore, not to be disturbed.

Jones.

Yes, she had. The want of crew was insisted on *at the trial, and the verdict shows the [*36'] jury’s opinion. Dow had gone to North Carolina on the very voyage insured in a vessel larger than this with only three hands, including himself; this was only a pettiauger. As to the policy’s being at and from, it is a mistake, the words are from New York; but granted they were otherwise, Coney Island is part of the port of New York.

Hoffman,

in reply, insisted on the words at and from; • hat under them the vessel should be fit for sea when she first weighs anchor in prosecution of her voyage; that was done at her leaving the pier in New York, and had she been lost going to Coney Island, it would have been within the policy. The jury’s decision on the sufficiency of a crew is not conclusive. Suppose they had determined one hand only to be enough, the court would have set aside the verdict. If the captain was in New York, the communication between him and the plaintiff must be inferred. For this, Stewart against Dunlop, in the House of Lords, Park, 209, is an authority.

Lewis, Ch. J.

Does it appear how the vessel was rigged? Had she a bowsprit ?

Per Curiam.

This is a claim for a total loss after having exhibited the usual proofs, and on these an adjustment was made. It is upon this that the action is brought, to which several grounds of defence are taken: first, that the adjustment was fraudulent; secondly, that the vessel .had not any bal-. last on board when she sailed from the place at which the policy attached, and, therefore, was not sufficiently equipped ; thirdly, that she had not a sufficient crew. We shall lay wholly out of view the two first grounds. It appeasi that previous to the adjustment all the facts now relied on were communicated to the underwriters. The protest states the time of sailing from Coney Island, in ballast, the gale of wind, &c. All these circumstances and their dates appear from the protest to have been fully made known, and, therefore, all charge of fraud is at an end, because the adjustment ivas made by the underwriters with their eyes open. An adjustment cannot be opened except on the ground either of fraud or mistake from facts not known. On the third point we think them is sufficient reason to order a new trial. It now appears that the vessel was a schooner of thirty-five or forty tons burden, with three sails, and departed on a voyage from hence to Edenton, in Hortb Carolina, with only two bands, the captain included. [*37] The vessel was, therefore, in our opinion, not *equip• ped for the voyage, and on this ground we think there ought to be a new trial. One hand and the captai i were not a sufficient crew.

Hew trial ordered.

        а) An adjustment, by the English authorities, is only prima facie evi deuce against the underwriter, impeachable for fraud, mistake in the law, o material fact. Christian v. Coombe, 2 Esp. Rep. 489 ; 2 Marsh. 542, et seq. Park, 117, et seq. Therefore, a legal exoneration, arising from facts known at the time of making the adjustment, may, at the trial, be availed oí) by the insurer, Herbert v. Champion, 1 Camp. 134, and a fact is not to be supposed as known by him, merely because he might have made himself acquainted with it, as of a notice stuck up in the coffee-house; it must be “blazoned” on him. Shepherd v. Chewter, 1 Camp. 274. It seems, from the above authorities, that an adjustment is a mere admission of the sum due, if there be no fraud; and, upon the facts known, a right to recover.

       S. P. Silva v. Low, Lex. Mer. Am. 310, 324, since reported 1 Johns. Cas. 184, with the facts at full length. See the eases in Lex. Mer. Am. ttbi snp. Want of sails, as well as insufficiency of a crew, will render a vessel unseaworthy. Wedderbwme v. Bell, 1 Camp. 1. To constitute her seaworthy, she must be equipped in such a manner as to render her secure against capture, as well as against the perils of the sea. As to unseawortliiness, from the want of documents, see Price v. Bell, 1 East, 663, and Elting and others v. Scott and Seaman, 2 Johns. Rep. 157, in which the court seem to 1 » against the implied warranty of seaworthiness extending to papers and doc •.< ments.


author: Per Curiam.

text:
    The People against Youngs.
    The first section of the 'act “regulating certain proceedings in crimi./al cases,” does not extend to collateral issues. On such, if the prisoner stand mute, the court will enter a plea for him. On collateral issues no peremptory challenge. General sessions has no jurisdiction on indictments for a second offence in committing grand larceny. Indictments for second offences, where the punishment is increased, must set forth the record of the former conviction. Prisoner tried at general sessions for grand larceny and brought up here, on suggestion of its being second offence, this court will give no other judgment than the court below might have pronounced.
    The defendant had been convicted of grand larceny, before the court of general sessions, at Albany, in February last, and was brought up to receive sentence of imprisonment for life under the act of 21st March, 1801, c. 58, s. 4, -as being his second offence.
    The indictment under which he was now brought up did not set forth the record of the former conviction; but instead of it a suggestion, in the nature of a counterplea, had been entered against the prisoner in the following words: “And Ambrose Spencer, who prosecutes for the people of the state of New-York in this behalf, having heard Thomas Youngs, who stands convicted at a court of general sessions of the peace holden at Albany, in and for the county of Albany, on the seventeenth clay of February last past, of feloniously and with force and arms stealing, taking and conveying away, at the city of Albany in the county of Albany, on the sixteenth day of February last past, one cotton, &c., (specifying the -articles and their value,) of the goods and chattels of Edward Griswold, being asked by the court now here what he had to say for himself why judgment should not be passed against him agreeable to law, saith that the said Thomas Youngs ought to receive the sentence and judgment of the court now here to be imprisoned in the state prison, for life, and there to be kept at hard labor, because he says that the said Thomas Youngs, by the name of Thomas Young, hereto fore, and before the said felony was committed in mannei and form aforesaid, to wit, at a supreme court of judicature held at the city-hall of Albany, in and for the state of New-York, on Saturday, the twenty-eighth day of April, in the year of our Lord 1798, before John Lansing, Esq., Chief Justice of the said supreme court of judicature, Morgan Lewis, Egbert Benson, and James Kent, Esquires, puisne justices of the said supreme court of judicature, was convicted on his plea of not guilty to an indictment for grand larceny, for feloniously, and with force and arms, stealing, taking and carrying away, &c., of the goods and [*38] chattels *of one John Wright, and thereupon it was considered and adjudged by the said court last mentioned, that the said Thomas Young be confined in the state prison in the city and county of New-York, at hard labor for two years, and this he the said Ambrose Spencer is ready to verify and prove by the record thereof; and the said Ambrose Spencer further saith, that he the said Thomas Youngs, who now stands convicted at the said court of general sessions of the peace, holden at Albany, in and for the county of Albany aforesaid, in manner and form aforesaid, is the same person who was so convicted at the said supreme court of judicature, holden at the city-hall of Albany, in and for the state of New-York, in manner and form aforesaid, and is not any other or different person. Wherefore, since the said Thomas Young hath already been duly convicted of the crime of grand larceny, committed since the said first conviction, the said Ambrose Spencer, for the people of the state of Npw-York, prays the judgment of the court here, that the said Thomas Youngs may receive judgment to be imprisoned in the state prison, in the city of New-York, at hard labor, or in solitude, or both, for life.”

      Spencer Attorney-General,

    prayed that the prisoner might be put to plead his identity, and, in case of his denying that he was the same person, that a jury might be summoned instante.r to try the fact. This he contended was the right mode of proceeding, and for that he cited The King v. Scott and another, 1 Leach, 445.
    To a question from the court, whether the prisoner wished for counsel, on being answered in the affirmative, they assigned to him Hoffman and Colden, who requested time to prepare themselves, which, the case being new, was granted.
    On the prisoner’s being brought up the next day, by advice of his counsel he stood mute. They insisting that as the punishment of peine forte was expressly abolished, and the first section of the law of 21st March, 1801, c. 60, applied only to cases of arraignment, the present was a casus omissis, in which the court had no power.
    After some consultation on the bench, the court ordered the following plea to be entered: ■
    *“ That he is not the person alleged by the Attor- [*39] ney-General in his plea to have been formerly convicted of grand larceny.”
    Reserving to the prisoner a right to object to the mode of proceeding, and take advantage of any irregularity that might appear. His counsel then stated they meant to contend that the proceedings, not setting forth the record of the former conviction, were erroneous, and the court would not pronounce the judgment prayed for.

      Spencer, Attorney-General.

    The identity of person and former conviction are circumstances collateral to the offence itself: they do not constitute a part of the crime, and therefore may be pleaded and replied to ore tenus, and a venire awarded returnable instanter, in the nature of an inquest of office. This is the constant practice in cases where it is doubtful whether a criminal be a lunatic or not; so, by analogy, the same mode should now be adopted, especially as it is a matter in which the court may exercise its discretion. 1 Hawk. 4, b. 1, c. 1, s. 4, n. (5). Fost, 46, 47. In Great Britain, when a prisoner is to be ousted of his clergy, the suggestion of his former offence is by way of counterplea, and the indictment never takes notice of the previous conviction. 4 Hawk. 254, b. 2, c. 33, s. 19, n. The only mode of trying whether he has before bad his clergy is by the certificate prescribed under the 8 and 4 W. & M., c. 9, s. 7. The King v. Scott and another, 1 Leach, 445. If the section cited .from the statute of W. & M. be compared with the second section of onr state law of 14th of April, 1801, c. 146, 1 Eev. Laws of N. Y., 462, 463, the certificate ordered by our provisions will be found perfectly analogous to that required by the 3 and 4 W. & M. The first offence is 'grand larceny, punished in a certain manner; the second offence is the -same, with a greater punishment. In England, the second conviction is not availed of in the indictment; hut when the prisoner claims the benefit of his clergy, it is counterpleaded. This makes a perfect analogy. His identity may be tried by a jury of his country, with the aid -of counsel and the right to challenge, at which time he may controvert his former conviction and indictment. Therefore, on principle, it is not necessary to connect the first with the second offence, as the repetition is nó part of the crime, but collateral [*40] and only incidental to his guilt. All *facts that dp not enter into the crime, but are mere circumstances are to be inquired of in this way. The books of precedent are silent as to the practice insisted on, and that is an argument for the present mode; the form of the counterplea is warranted by Dogharty.

      Golden and Hoffman, for the prisoner.
    There is no analogy between the present case and those which have been cited. It is not denied that to oust of clergy the mode is by counterplea. The present suggestion cannot be spoken of as being of the nature of counterpleas; these are so called because counter to what is pleaded, or claimed by the prisoner after his conviction, when he demands the benefit of his clergy. To the plea which the prisoner has put in, to do away the force of the sentence, the attorney-general interposes his counterplea; but he cannot, after trial, suggest any new matter. If the crime was as is stated in the counterplea, or suggestion, the court below had no jurisdiction of the offence. Justices of the sessions are ousted of that both by the common law and express words of our state act of the 21st March, 1801, s. 1, Rev. Laws of N. Y., vol. 1, p. 302. The statute, after giving the justices a right to inquire of all offences, &c,, and going on to confer on them a right to hear offences of grand larceny, has the following proviso: “ Provided always, that it shall not be lawful for any of the said courts to hear and determine any indictment of, or for any treason, misprision of treason, murder, or other felony or crime, which is or shall be punishable with death, or with imprisonment in the state prison for life, but shall cause the indictments for the same to be delivered to the next supreme court, or court of oyer and terminer or gaol delivery, to be held in such city or county, there to be determined according to law.” The question then is, is this a crime punishable with imprisonment for life or not? Is not this apparent on the record? If so, it is conclusive as to the jurisdiction. The court will recollect that the law referred to was passed with a direct view of restraining the justices in sessions from exercising any authority where the punishment was so severe. The legislature viewed them as a subordinate tribunal, and therefore delegated inferior powers according to the confidence entertained. The practice on the present occasion is not such as has been formerly used; the mode heretofore adopted has been to make the first offence a charge *in the indictment for the second, and as this has [*41] been the line of conduct in this country, it may be considered as a cotemporaneous exposition of our law. [t is asserted that, though this method might be taken, it is only matter of form; it is a matter of form, however, which gives a jurisdiction the legislature has taken away. It is form in one point of view, in another not. This kind of alteration in criminal proceedings is not allowable. It is necessary that the previous offence should be made a substantive charge in the indictment for a second, where the punishment is augmented by the repetition, because the repetition is the crime. Eeason tells us the second offence must be after a conviction for the first, for it is on a presumption of the first punishment’s not having induced a reformation, that the second is increased. 1 Hawk. 306, b. 1, c. 40, s. 4. 1 Hale’s P. 0. 685. Fleming's Case, 1 Leon. 295. Taverner's Case, 3 Dyer, 323. The distinction between clergyable cases and the present is this: whether clergy has been allowed or not is not traversable, but here the nature of the crime is changed by a superadded fact ; the party, therefore, must have an opportunity to traverse. The time at which the second offence was committed is of the .essence of the crime. The counterplea is no evidence that the subsequent felony was after the 16th February, nor is any issue tendered of that fact. It ought to have been formally offered. .
    The necessity of such an issue will be more evident on recurring to s. 4 of the law declaring what crimes are punishable with death or imprisonment for life :■ the second offence must be after such first conviction; if it be a question, then, whether the second offence was committed after the first conviction, it is a fact not inquirable here, but by a jury. Before them, for an offence subjecting to the punishment now asked, the prisoner is entitled to a peremptory challenge of twenty ; this right by the present mode is taken away; for on a collateral issue it cannot be exercised. Radcliff's Case, Fost. 42. Dogharty is a precedent in point, and in the very one adduced by Mr. Attorney, the former conviction is set forth.

      Spencer, Attorney-General,

    insisted on his former arguments, and that this was properly a counterplea; because, when the prisoner is asked what he has to say why more than *fourteen years’ imprisonment should [*42] not be awarded, he must allege the conviction to be on his first offence: this is his plea; then the suggestion read is the counterplea. The practice relied on has not antiquity enough to establish it, and the distinction between taking away clergy, and augmenting the punishment, amounts to the same thing, for they both vary the sentence. The idea under which the proceedings have been Carried on is, that the trial might be below, and the judgment here.

      а) 21st March, 1801, ch, 58, 1 Rev. Laws of N. Y., 254.

       21st March, 1801, c. 60, s. 9, 1 Rev. Laws of N. Y., 261.

   Per Curiam.

The prisoner was convicted .at a court of general sessions of the peace, held in and for the city and county of Albany, of a grand larceny.' The record of his conviction is removed into this court, on.which a suggestion is entered that he had heretofore been convicted of a similar offence. On this the public prosecutor has moved for judgment of commitment to the stale prison for life, according to the act in such case made and provided, or that the prisoner take issue on such suggestion. The court, doubting of the regularity of this mode of proceeding, assigned counsel. The point has been. ably argued, and they are now to give their judgment.

From the authorities and precedents that have been laid before us, there can be little doubt, that in England, when a prisoner prays his benefit of clergy, and the question is, whether it hath not been on another occasion extended to him, this is the mode (under the appellation of a counter-plea) that is generally pursued. In cases, however, where the first offence forms an' ingredient in • the second, and becomes a part of it, such first offence is invariably set forth in the indictment for the second.

A similitude is said to exist between the prayer of clergy in England, and a denial of a former conviction with us, and that therefore the same mode of proceeding is equally correct in the one case as in the other. But on strict examination, there will be found to exist no analogy between them, and that we cannot adopt the same mode of proceeding without depriving the prisoner of an important privilege secured to him by statute.

It is true that much inconvenience may, and probably will, arise from this decision. Eew convictions for second offences will be likely to take place: but the remedy [*43] lies not within *our reach. By a statute of this state every person who shall be indicted for an offence, the punishment whereof shall be, on conviction, confinement for life in the state prison, is entitled, when put on his trial, peremptorily to challenge twenty of his jurors. The form of proceeding now contended for would effectually deprive the prisoner of this right. It is no answer , to this objection to say, his right of challenge may, on the trial of this collateral question, be extended to him, even should it be proper to allow it him on such occasions. He is entitled to it when tried for the principal felony, and had he not been deprived of it, might have been acquitted. Another objection, and a strong one, arises from the circumstance of his conviction having taken place before a court of sessions. The statute declaring the powers of justices of sessions expressly prohibits them from trying indictments where the punishment on conviction is confinement for life. Had it appeared, then, from the indictment that he was to be put upon his trial for a second offence, a plea to the jurisdiction would have tied up the hands of such court, and have carried his cause for trial to a tribunal that could have extended to him all his rights.

We are of opinion this court can give no other judgment ;A the case than such as the sessions might have done, which exceeds not the punishment of fourteen years’ confinement.

Sentence for five years.


text:
    Smith and Stanley against J. and I. Wright.
    For goods shipped on deck and ejected, there is no contribution; nor is the owner of the vessel liable as a carrier.
    This was an action against the owners of a ship, to recover the value of goods shipped on deck, and ejected.
    At the trial it was .admitted that the defendants were owners, of the ship Charlotte,- that the plaintiffs were owners of twelve bales of cotton, laden on deck, to be carried from Hew-York to Liverpool; that they were to pay one half of the freight which was paid for goods carried in the hold; and that the cotton, in a storm, was ^thrown into the sea, for the preservation of the [*44] ship and the residue of the cargo, both of which arrived in safety.
    Several eminent brokers, underwriters, and merchants were examined, and they all uniformly testified, that goods on deck, if lost, are paid for by the underwriters on those goods, without contribution from the assurers of the vessel or other parts of the cargo; that there was no instance of an average on contribution allowed, when a loss happened in this way; that they never knew of any such case occurring between an owner of goods on deck and the owner of the vessel; that goods on deck always pay a higher premium, even 'in summer double, in winter, about 7 to 3, and less freight than goods under deck: the freight is less by one half, or two thirds, or thereabouts, but alwaj^s less; that they never before heard of a demand of this kind made against the owner of the vessel by the shipper of goods; that the freight of goods on deck is less than when below, because they are not considered as at the risk of the owner of the vessel. One merchant said, he once owned goods on deck, which were lost by jettison; and being uninsured, he claimed nothing from the owner of the vessel or the other part of the cargo. He conceived it to be the general understanding, that, for goods ejected from the deck, no contribution is to be made by the owner of the vessel, or of the other goods.
    By consent of parties, a verdict was found for the plaintiffs, subject to the opinion of the court, on a case to be made, as to the law, and the admissibility of the preceding testimony ; it was agreed, that if, subsequent to the trial, any instances of usage could be ascertained by affidavit, they should be added; and, in case of judgment for the plaintiffs, if any controversy should arise as to the amount really due, it should be settled by indifferent persons. In case the opinion of the court should b'e against them, judg rncnt to be entered for the defendants.
   Per Curiam.

The plaintiffs shipped on half freight, on the deck of the defendants’ vessel, twelve bales of cotton for Liverpool; which, for the preservation of ship and cargo, were, in a storm, thrown overboard; and the question is, are they entitled to average ? It is conceded, that to general average they are not: that the shippers of goods ■ under hatches, and the insurers on ship and cargo, [*45] are not liable to contribution *on account of their presumed ignorance of any part of the cargo being placed in so perilous a situation. But it is insisted there is not the same ground of-exemption for the shipowners, because such fact is to be presumed within their knowledge; and they are benefited by the extra freight. If this reasoning be correct, its effect would be to make the shipowners insurers of all goods laden on deck, without premium, and at half freight; which certainly would be the height of injustice.

It is sufficient for our purpose, that the usage has been against the allowance of average to goods placed on the deck of a vessel. This is proved to be the case, from the testimony of several insurance brokers and merchants, of long standing among ns; some of whom carry it back as far as thirty years ; a period, however, too short, it is said, to establish a usage. The true test of a commercial usage is, its 'having existed a sufficient length of time to have become generally known, and to warrant a presumption that contracts are made in reference to it. This appears to be the case in the present instance. We are, therefore, of opinion, that judgment be for the defendants.

Judgment for the defendants.

       Goods laden on deck are never contributed for; but a boat may be a subject of general average. Lenox v. Marine Ins. Co., July, 1802. The reason why for goods laden on deck 'neither contribution nor general average, in case of ejection, can be claimed, is, that they themselves increase the danger of the navigation, and are taken on 'board, under an implied agreement that they shall be sacriflcéd, if it be necessary to eject.


text:
    Miller against Drake.
    The statute of frauds does not require the agreement to make a conveyance of lands to be set forth in the declaration. A contract for the benefit of a third person, will support an action by him with whom the contract is made. An averment of “ being ready prepared, and offeripg to execute a conveyance, according, <fec., but that defendant did not attend, and has refused,” is a sufficient offer to perform, by the plaintiff.
    Error on a certiorari from the ten pound court.
    ■ It appeared, from the justice’s return, that the plaintiff had agreed with the defendant to attend at a certain place, to receive a. conveyance of some land from the defendant And his wife, to one Bhoam. The proceedings below were by the present defendant, to recover damages for the now plaintiff’s non-attendance, according to his engagement. The declaration stated, that the defendant “did, together with his wife, attend at the place appointed, ready prepared and offering to execute to the said Jacob Bhoam a conveyance, &c., according to the aforesaid agreement.” There was also a count for work and labor done with the defendant’s wagon and horses.
   Per Curiam.

The errors assigned, and relied upon by the plaintiff, are these:

1. That the action before the justice was founded on an agreement for the sale of lands, and it did not ap[*46] pear from the declaration that *there was any note in writing of that agreement: which was therefore void, by the statute of frauds.

2. That the promise by Miller was for the benefit of onr Bhoam, a third person ; and, therefore, without considera tian as to Miller; and for that reason, also void.

3. That there was no performance of the contract on the part of Drake ; it not being alleged that he offered a deed, executed, or ready to be executed.

The first exception is clearly not well taken. Although the statute of frauds requires a note in writing to support a contract respecting the sale of lands, it is not necessary the writing should be set forth in the declaration; and it is sufficient if it appear in evidence. The statute has not altered the form of pleading, which remains as it was at the common law.

2. The second exception, we think, is equally untenable. The action was founded on mutual promises ; and the one. promise was the consideration of the other. It was not necessary that the act promised to he done hy Drake, should appear to he immediately beneficial to Miller, in order to support the obligation of his promise. It was sufficient that its performance would be detrimental to Drake, or deprive him of a right which he before possessed. An injury to one party, or a benefit to another, is sufficient consideration for a promise. By the agreement in this instance, Drake -was to .convey to another his title to certain lands, in consideration of which, the promise on the part of Miller was made; and that consideration was sufficient.

3. With respect to the third exception, we hold the offer to perform is sufficiently averred in the declaration. It is averred that Drake and his wife attended at the time and place appointed, “ ready prepared and offering to execute" the conveyance, “ according to the said agreement;" 'and that Miller did not attend; and that he has refused to accept the same, and to perform the agreement on his part.(c) This averment was substantially sufficient, and the manner in which the tender or offer to convey was made, was matter of evidence on which the justice has decided, and which cannot appear on the record.

We are, therefore, of opinion, that none of the exceptions are well taken.

Judgment affirmed.

         So of a promise to pay the debt of another. Elting v. Vandelyn, 4 Johns. Rep. 237. What if the exception arise on demurrer to the declaration?

        Case v. Barber, T. Raym. 450; Bull. 279.

       See Livingston v. Rogers, post, 583, as to mut.ual promises. With respect to considerations moving from the plaintiff to third persons, they have been ruled good considerations for a promise by another, if the promise be made at the time of the contract, and it be an essential ground of the oredii given, or consideration passed, to tlie third person, though he be -the direef and principal creditor; but such promises being collateral, must be in writ ing. Leonard v. Vredenbergh, 8 Johns. Rep. 39.

        а) Quœre. If such other might not have maintained an action. Dalton v Poole, 1 Tent. 318: Marchington v. Vernon, 1 Bos. & Pull. 101, n. c. See also Comb. 219; 8 Mod. 117 ; Martin v. Hinde, Cowp. 437.

       The principles as to averments of performance are, that when a plain tiff is to do an act by which he is to entitle himself to his action, he must show that act done, or at least that he has performed every thing within his power, (Lancashire v. Killingworth, Com. Rep. 117, cited in 2 Saund. 352, by Williams, n. 3, and the cases there;) or that performance has been dispensed With.
      See the New York Code of Procedure, sec. 162.

       See 1 Lex. Mer. Amer. 372, 373, the cases there cited.


author: Kent, J., Livingston. J.

text:
    * Weaver against Bentley.
    tf a person bind himself under hand and seal to do a certain act for a certain consideration, and he fail, asswmpsit will lie to recover back the consideration paid.
    This was an action of assumpsit to recover back the consideration paid on an agreement under seal in the following words:
    “ November the 26th, 1796. Know all men by these presents, that I, Elijah Bentley, do bind myself to procure for James Weaver, lot No. 67, joining Ballcock’s on the 'west, which lot I am now in possession of, which I promise to procure so far as this, on these conditions, that is, a lease to be either three years rent free, then to pay the interest of one hundred and sixty pounds yearly, for the term of ten years, then with paying one hundred and sixty pounds, to have a deed for the same lot, containing one hundred acres, which lease I promise to deliver by the first day of June next, and then if not called for, whenever called for. The condition of this obligation is such, that if I do not deliver the said lease, the two sixty pound notes, which are dated November the 26th, 1796, which I have against James Weaver, shall be of none effect. As witness my hand and seal.
    “ Elijah Bentley, [l. s.]”’
    On the trial of this cause before Mr. Justice Thompson, at the circuit court for the county of Herkimer, the plaintiff produced in evidence the agreement and affidavits of various payments by the plaintiff.

      The counsel for the defendant objected to the plaintiff’s ■right of recovering in this form of action; insisting that the agreement was under seal, and imported a covenant, and therefore assumpsit would not lie; but the judge, after argument, directed a verdict to be • taken for the plaintiffj subject to the opinion of the court on the point relied on by-the defendant.
   Kent, J.,

delivered the opinion of the court. The defendant covenanted to procure for the plaintiff within a given time, or on demand thereafter, a lease for certain lands, three years free of rent, then to pay the interest of 160Í annually, for ten years, in lieu of rent, and at the expiration of that period, to have a conveyance of the fee on payment of the principal sum; in default whereof two *notes of sixty pounds each, given by the plain- [*48] to the defendant, were to be void.

The plaintiff made certain payments in money and farm stock to the defendant, who failed to perform his covenant, and the plaintiff thereupon brought assumpsit; and the question now is, whether the action will lie, or the plaintiff be compelled to resort to his covenant.

This case is so loosely drawn that it scarcely affords suffient ground for a decision. It is not stated for what the notes, money or stock were given; presuming them to have been the consideration of the covenant, the question then will be, whether the defendant having failed to perform on his part, the plaintiff may disaffirm the contract and resort to his assumpsit to recover back what he had paid. We are of opinion he had his election either to proceed on the covenant, and recover damages for the breach, or to disaffirm the contract, and bring assumpsit to recover back what he had paid on a consideration which had failed. Judgment, therefore, must be for the plaintiff.

Lewis, Ch. J. Radcliff, J. and Thompson, J. concurred

Livingston. J.

Two questions were submitted to us in this case.

1. Do the terms of the contract import a covenant?

2. Can the plaintiff waive covenant, and bring assumpsit to recover the consideration paid for the land ?

In answer to the first it is only necessary to state, that the defendant “binds himself” under seal to procure for the plaintiff a certain lot of land, and promises” to deliver the lease by a certain day. The words “ bind and promise” create a covenant as strong as any which could have been used.

It follows, then, that an action of covenant will lie on the instrument on Bentley’s non-performance, to recover back all that has been paid. When that is the case the party must rely on the security he has taken, there being no necessity for the law to imply a promise different from the one contained in the terms of the contract. Promises in law exist only where there is no express stipulation between the parties; thus in 2 Term Rep. 100. where a surety had taken a bond of indemnity from his principal, he was not permitted to resort to an action of assumpsit for the money he had paid., This is a stronger case, for if the present suit be maintainable for the money paid in consequence of this covenant, I see nothing to prevent the plaintiff from bringing an action on the instrument [*49] «itself, for other damages which may have been sustained by the defendant’s non-performance, and thus subjecting him to two suits for a compensation which might have been obtained in one; for these reasons I think it more safe to adhere to the rule which confines a man ta the security he has taken, than to depart from it, merely because the merits may be with the plaintiff. The case of D'Utricht v. Melchor, 1 Dall. 428, cannot be law. In my opinion there should be judgment for thp defendant.

Judgment for the plaintiff.

       But observe, this action cannot be maintained unless the contract on which the money has been paid is at an end. Weston v. Downes, Doug. 23,

       But quœre, whether, on these words, if to pay a debt, covenant would Ee? though it will on “I oblige myself to pay.” Norrice's case, Hard. 178.

         Toussaint v. Martinant.

       In assumpsit the plaintiff cannot give in evidence, a specialty to prove his debt. Moor, 340. If a man recover a debt against another, who pays it, upon which a release is given by the plaintiff, in which he pn mises to discharge the judgment and not sue out execution, which he afterwards does covenant, and not case, must be resorted to. 1 Roll. Abr. 517, A.

       See New York Code of Procedure, secs. 140-3.


author: jPer Curiam.

text:
    Muir and Boyd against The United Insurance Company of the City of New-York.
    A vessel captured, recaptured, and carried into a port of the country to which bound, and in the way to that of her destination; information of all these circumstances being received at the same time, the assured cannot abandon. If, in such a case, she be restored on salvage, and after-wards, together with her cargo, be sold at auction, the charges of sale fall on the assured; the underwriter being liable for no-more than the amount of the salvage, and the damage sustained under the policy.

      Qwxre, if newspaper information be such on which an abandonment can be made?
    This was an action of assumpsit on a policy of insurance, effected in the name of Archibald Gracie, on the cargo of the ship Dauphin, valued at eighty-seven thousand one hundred and sixty dollars, on a voyage from Surinam to London.
    The cause was tried before Mr. Justice Badcliff, at the June sittings, in Uew-York, 1802, when a verdict was taken for the plaintiffs, subject to the opinion of the court on a case to be made.
    By the case, the interest of the plaintiffs, the subscription of the defendants, and the sailing of the vessel on the voyage insured were conceded.
    It- was also admitted that the ship and cargo were cap tnred by a French privateer, and, after being-in her possession thirteen days, recaptured by two British frigates, carried by them into Plymouth, and there-libelled for salvage; that a claim was interposed by the captain on behalf of the plaintiffs; that information of the capture, recapture, and arrival at Plymouth were received at the same time, through the medium of a London newspaper, and the cargo abandoned to the defendants the next day.
    That a bona fide compromise for the salvage was made between the consignee of the plaintiffs and the captors, at one-eighth of the appraised value of the cargo, after deducting an eighth for sea damage, the amount of which was, on a reference, fairly estimated by the captain and prizemaster, but without unloading.
    That on payment of the compromise, the vessel and cargo were delivered up to the consignee, and by him sent to the port of destination, where the cargo was sold at auction foi the benefit of the underwriters. That, had it been sold at Plymouth to pay the salvage, it would not have produced, by 30 per cent., so much as it did in London.
    That by the Act of Congress of the 2d March, 1799, s. 7, one-half of recaptured property is allowed as salvage, if it be in possession of the enemy above 96 hours. That the Supreme Court of the "United States had determined the subjects of France to be enemies within the act.
    That the rule of salvage adopted by the British Court of Admiralty, in London, as- to American property, is that which is applied to British property under the 33 Geo. III. c. 66, s. 12.
    That by this statute one-eighth of recaptured property is allowed if retaken by a single king’s ship; if by more than one, so much as the judge of the Court of Admiralty, or other court having cognizance thereof, shall order.
    That in consequence of the sale at auction, the cargo wag subjected to charges, amounting in the whole to 772l. 3s. sterling.
    *It was agreed, if the court- should be oí opinion that the plaintiffs were entitled to recover a total loss, that judgment should- he entered in their favor for twenty-five thousand five hundred and eighty-one dollars. But if the court should be of opinion, that the plaintiffs were entitled to recover only the amount paid for salvage, the auction duties, together with the expenses incident to the sales at auction, and also the damage, loss, and injury the cargo sustained while in the hands of the captors and recaptors, then the verdict should be for the sum of nine thousand five hundred' and sixty-one dollars and twenty-four cents; but if the court should be of opinion, that the damage sustained by the cargo had not been properly ascertained, or that the charges attending the sale at auction in London were not properly incurred, then and in such case, a proportionate deduction to be made for the benefit of the defendants.
   jPer Curiam.

The question arising from these facts is, as to the extent of the plaintiffs’ right to recover.

This, we think, is not a case of a total loss. The news of the capture, recapture, and arrival at Plymouth, all come together: and the only pretence of a total loss ex-isfcing when the abandonment was made, is founded on the claim of salvage. The amount of this could not be ascertained with certainty, from any information possessed by the assured, at the time of the abandonment. Although by the act of Congress of 2d of March, 1799, s. 7, the salvage of vessels and goods recaptured from the enemy, after having been in their possession ninety-six [*54] *honrs, is established at one-half their value; and the rule adopted in the English admiralty, as to salvage, is founded on principles of reciprocity, and regulated by the laws of that country to which the recaptured property belonged, yet Sir William Scott declared, on the 7th of December, 1798, that it was the practice of the English admiralty to restore American property on the rule of the English admiralty, without inquiring into the practice of America. The English rule of salvage is one-eighth, if recaptured by a single ship; and if by the joint operation of two or more, the salvage is left to be settled by the admiralty, according as it shall judge fit and reasonable. Under the circumstances, then, of this case, the rule of salvage would-not be considered as going beyond one-eighth. There was not, at least, any definitive or certain ground for estimating it higher. And as matter of fact, we find that the salvage was, at the time, liquidated and settled between the consignee and recaptors, at one-eighth. The information received by the insured, upon which the abandonment was made, was a mere newspaper account; and if information, in any case, derived through such a channel, would be sufficiently authentic to warrant an abandonment, we think, in the present instance, it was too imperfect to afford sufficient data to the insured to calculate his actual loss. We are of opinion, therefore, that the plaintiff is not entitled to recover as for a total loss; nor, that the charges attending the auction can be considered as a loss, within' the policy, to be borne by the underwriters. It was a voluntary act of the consignee; done, probably, in consequence of information of the abandonment; and made, therefore, at the peril of the owner. Had the sale at auction been to ascertain the injury the cargo had received, and limited to such parts as were damaged, it would have been a reasonable charge; but that appears not to have been the object or effect of the auction. The damage had been previously liquidated by the captain and prizeraaster; and if those damages, together with the salvage paid, be allowed against the defendants, it is all the case will warrant.

We are, therefore, of opinion, judgment ought to be for the plaintiffs, for the salvage and damages only.

Judgment for salvage and damages.

       It is universally conceded, that in such a case there is no right to abandon. Hamilton v. Mendes, 2 Burr. 1198. But whether the right shall be governed by the knowledge of the facts on which founded at the time of abandonment made, or whether, by the real facts as existing then, or at the time of action brought, has been rescata questio. In Church v. Bedient and others, 1 Caines’ Cas. in Err. 21, and Hallett v. Peyton, Ibid. 28, the court determined that if the facts at the time of abandoning prove the loss only partial, a total loss cannot be recovered. In Bainbi'idge and another v. Neilson, 1 Camp. 231, Lord Ellenborough seemed to be of opinion, that the actual state of facts, and not their known or supposed state, at the time when the abandonment is made, ought to determine the right; but, on an -argument at bar, in the" same case, the K. B. appear to incline to the opinion that the right to abandon ought to be regulated by the state of things at the time of action brought. See also M’Carthy v. Abel, 5 East, 388, and Thelluson v. Sheddon, 2 N. R. 230. In Massachusetts the loss, as at the time of the offer to abandon, decides the right. Lee v. Boardman, 3 Tyng, 248, but in Dorr v. New England Ins. Co., 4Tyng, 220 this principle seems doubted. In Rhinelander
        v. Insurance Company of Pennsylvania, 4 Cranch, 29 ; Marshall v. Delaware Ins. Co., Ib. 202, and Alexander v. Baltimore Ins. Co., Ib, 370, the real state of the loss at the time of the abandonment made, is said to be the proper and safe criterion. The same rule is adopted in Pennsylvania. Dutilh v. Gatliff, 4 Dall. 440.

         A mere report sufficient, if it prove true. Bainbridge v. Neilson, I Camp. 237.


text:
    *Huguet, Assignee of the Sheriff, against Hallet.
    Entering into an agreement in the nature of a rule to stay proceedings on a bail bond, an<f, after notice of bail, declaring in the original action, is a waiver of a right to a plea in the bail bond suit;' if the plaintiff proceed on the bail bond, he will be entitled to costs only up to the time of the notice of special bail, and on payment of those, all subsequent proceedings will be set aside.
    Soon after this suit was commenced, the attorneys for both parties entered into an agreement, in the nature of a rule to stay proceedings on the hail bond, on the usual terms. The defendant in the original suit accordingly filed special bail, and gave regular notice, but had not paid the costs of this suit, as by the terms of the agreement he was bound to do. The plaintiff, on special bail being entered, went on in the original suit, and in July, 1802, obtained final judgment, on which execution was issued, and satisfied. The plaintiff afterwards proceeded in this suit, en tered a default, in January last obtained final judgment, and issued an execution, on which the sheriff, by direction of the plaintiff’s attorney, levied the costs only, but still had them in his hands. The defendant, in the last vacation, obtained an order to stay all proceedings.
    An application was now made that the sheriff restore to the defendant so much of the money in his hands as should exceed the costs which were due on the bail bond suit when the agreement to stay proceedings were entered into, and to set aside all that were subsequent.
    From the affidavit read, it appeared that the attorney for the plaintiff had frequently given the attorney for the defendant verbal notice that he was proceeding with the bail bond suit; but no bill of costs had been presented by the plaintiff, nor any demand of a bill or tender of the costs made by the defendant.

      Golden,

    for the defendant, contended that special bail being filed under the agreement, with an intent to stay the proceedings on the bail bond, the plaintiff could not accept the bail, or avail himself of their being put in, unless the agreement was to have that operation.
    That the plaintiff could not proceed with 'both suits: at most he had but an option to proceed with either, but having elected to pursue the original suit, he thereby precluded himself from going on with the other.
    *That after the defendant had filed special bail, the plaintiff might have gone on with his original suit, and the court would probably have compelled him, by attachment, to pay the costs in that on the bail bond, up tc that time.
    That there was no precedent for this double proceeding, which was a strong evidence that it could not be right.

      Stuyvesant, contra.
    — It was the duty of the defendant to have paid the costs on the bail bond, when he gave notice of special bail. The plaintiff had no other possible remedy for his costs than the mode he has adopted, and as the defendant’s irregular conduct has compelled the plaintiff to proceed, the whole costs are due from the defendant, and are nothing more than the result of his own irregularity and obstinacy.
   Per Curiam.

This is a motion to set a side proceedings on the bail bond on the facts stated by the affidavit. The original suit was commenced in January, 1802, and the writ returnable in April. Afterwards, in May, the action on the bail bond was brought. Shortly after, the plaintiff’s attorney received notice of bail in the original action, and then delivered a declaration. He went on to judgment, and issued his execution, which was fully paid. After this he proceeded on the bail bond to recover costs. The plaintiff’s attorney states that he called on the attorney of the defendant, and requested him to pay the’ costs on the bail bond which he did not do. ' On this proceedings were continued in the bail bond suit to judgment, on which an execution has issued for the costs. The application is to set aside the proceedings and execution in the bail bond suit. It is established, with respect to tendering costs on a rule to stay proceedings on the bail bond, that it is the defendant’s duty, when the rule is obtained, to plead and tender costs. There was no rule to stay proceeding: but an equivocal agreement in the place of that rule, am should receive the same construction. It was the duty dalhe attorney of the'defendant to plead and pay costs. The would have been ordered had the plaintiff not proceeded in the original suit; but when he did that, it was a waiver(a) of his prooedings on the bail bond, and a waiver of the right to a plea in the suit upon it. The ■ proceedings must be set aside on payment of costs up to the time when special bail was entered, and notice of that bail given.

On payment of costs up to notice of bail.

Motion granted.

         Cannon, manucaptor, ads. Cathcart, Cole. Cas. 80. Exoneretur ordered on payment of costs; no demand or bill present. Plaintiff went on. /Per Curiam. The costs should have been paid wlhout waiting a demand or bill. S. P. Durell v. Stansbury. The relief now to be, on paying of costa ordered, those of subsequent proceedings, and assisting this application.

       See New York Code of Procedure, sec. 191.

      ) The general rule is, that proceeding in the original suit is a waiver of the bail bond, and vice versa, proceeding on the bail bond to judgment and execution a waiver of the original suit. Beecker v. Simmons, 7 Johns. Rep. 119. But where the plaintiff merely settles the original suit, if the costs on the bail bond be not paid, the bail bond suit may be continued for their recovery. Calkin v. Norton, Caines’ Prac. 91, from MS. Kent, C. J. So for the recovery of them in the original suit, if it has been settled on a promise to pay them, and that promise never performed. Groves ads. Campbell, Cole. Cas. 113. But note, to warrant a proceeding on the bail bond, an exception to the bail above must, as has beeii ruled, be entered. Phelps ads. Ferris, Cole Cas. 95. Qu., however, as to this being in all cases law, if the decision in Dubois v. Phillips, (5 Johns. Rep.) be the rule. It is a general rule that when a suit is settled on an agreement to pay the costs, if they be not paid accordingly, the court will not stay proceedings, when continued for their recovery. Therefore, if an action against the acceptor of a bill be settled, on an agreement that the defendant shall give a new bill, and warrant of attorney to secure the amount, and also pay the costs, if he give the new bill, execute and deliver the warrant of attorney, but do not pay the costs, an action may be brought on the old bill, while the new is outstanding in the bands of a third party. Norris v. Aylett, 2 Camp. 329.


text:
    *Potter against Briggs.
    After a lapse of five years the court will not order a formet sheriff to amend his return, according to the truth of the case by stating that the defendant had escaped from prison, if it was at a time when many others forcibly broke out.
    This was an application to the court for an order on the heretofore sheriff, Lansing, to amend a return according to the real truth of the case. • The facts were, that the defendant had been arrested and duly committed to gaol, but was one of many others who had broken out of prison, in the year 1798. The sheriff had been ruled, and had returned the due execution of the writ, a delivery of the defendant’s body over to one of his deputies, and a rescue, but omitted totally the commitment to prison.
    Troup,
    on an affidavit stating the preceding circumstances, insisted on the court’s being under a moral obligation to order a return according to the truth of the case. That by the false one made, the sheriff avoided that liability for the full amount of the debt, from which nothing but an enlargement by public enemies of the state could exonerate him. It was a device to get rid of his legal responsibility; to leave the plaintiff only to his action for a false return, in which he could recover no more than his damage actually sustained, and in which the defendant’s insolvency might be urged against a recovery of any thing.

      Harison,

    contra, observed, that Troup had stated the very reason why his motion should not be granted; that of the plaintiff’s having it in his power to obtain a compensation in an action for a false return, to the full amount of what he really had suffered. The proceeding now was, to get from the sheriff a debt, of which not one shilling could ever have been obtained from the defendant. That the escape was at a time, full in the recollection of the court, when a number of the debtors broke out of the city gaol. Several had been indicted and sentenced to the state prison. The application too was very stale; the second sheriff was now in office since the escape, and five years had elapsed in silence. Perhaps the court might have some doubt how far it could in this manner interpose.
    Troup, in reply, insisted on his former positions.
   Per Curiam.

The plaintiff is not without remedy; he has his action on the return. We do not say that in no case shall a return against truth be amended, but in this, under all its circumstances, we think the plaintiff must be left to such redress as the law will give him without our interference.

Motion denied.

         Potter v. Lansing, see 1 Johns. Rep. 215, an action on the case for this very escape, in which 3,000 dollars were recovered by the plaintiff; but a new trial ordered; Kent, C. J., Spencer and Tompkins, Justices, thinking there ought to have been no recovery; Livingston and Thompson, Justices, contra. After a lapse of 20 years no judicial proceedings can be set aside for irregularity. Thompson v. Skinner, 7 Johns. Rep. 556. But after a lapse of 12 years a rule for an attachment was granted against a sheriff for not returning an execution delivered to one of his deputies. Brockway v. Wilber, 5 Johns. Rep. 356. Note, however, that he might have purged himself on interrogatories, and, therefore, in this very cause, he was discharged on showing that the fi. fa. had been delivered 14 years ago to his deputy, who had absconded, and died abroad, and it did not appear what Lad become of the writ. The People v. Gilleland, 7 Johns. Rep. 555, citing, by the name of Brockway v. Willie, the above case.


author: Radcliff and Livingston, Justices. Radcliff, J. Thompson, J. Livingston, J.

text:
    *M'Vickar & Co. against Alden.
    Whilst a public prosecutor is attending the duties of his office, his causes, though called on, are not pnt at the foot of the calendar; but if after the court of oyer and terminer is adjourned, younger issues be tried, he will lose his preference and be liable to nonsuit for not proceeding to trial, in the same manner as other persons.
    This was a motion for judgment as in case of nonsuit for not proceeding to trial according to stipulation.

      Biker,

    district attorney, oppose^ the motion on an affidavit stating that he was employed for the plaintiff, and had been prevented, in consequence of his official duty as public prosecutor, froija attending the court when the cause was called on, and had not afterwards been able to bring it to trial.
    Boyd, for the defendant.
    The public prosecutor was only counsel: it is true the attorney is his brother acting with him; but the case is a hard one. The defendant was a captain of a ship in which the plaintiffs had shipped several bales of cotton, all of which had been delivered according to the bill of lading; but" one, not worth more than sixty dollars, had been damaged, and he had been held to bail for the whole shipment, to the amount of two thousand, had been obliged to deposit property to obtain special bail, kept here many months, and had lost, by the detention, more than the sum for which he was arrested.
   Radcliff and Livingston, Justices.

To public officers in the city of ¡New York, where the different courts are held at the same time, indulgence has always been shown. Their causes have been called on, but not put down to the foot of the calendar if engaged in official duty, They did not lose their preference of other causes, when the public officers attended. An official situation would otherwise subject them to peculiar hardships in this city, though in other parts of the state, the same inconveniences do not exist.

Radcliff, J.

wished to know whether, after the adjournment of the court of oyer and terminer, any causes, younger than the one in question, had been tried.

Thompson, J.

There has been loches in the plaintiffs: the stipulation shows this is the second. The plaintiff ought to have employed other counsel, for the defendant should not be prejudiced: being concerned as public prosecutor ought not to cause any injustice to the defendant : he ought to have the effect of his motion.

Biker,

for the plaintiffs, offered to consent to common bail.

Livingston, J.

As the plaintiffs have consented [*59] to common *bail though not imposed, Judge Bad-cliff and myself think the motion must be refused. The plaintiffs, however, will stipulate, and pay the costs of the last circuit.

On its being suggested That younger causes had been tried at the circuit, after the court of oyer and terminer had risen, the court deferred.pronouncing judgment till the calendar should be examined and that fact ascertained. By a certificate from the clerk of the court, it appeared that the present suit had been called and passed, and the affidavit of the defendant’s attorney stated, that younger issues had been determined. On these grounds the court ordered judgment as in case of nonsuit, saying the certificate of the clerk was equivalent to an affidavit, and it must be intended the cause had been regularly passed.

Judgment of nonsuit.

       See Anon. 2 Caines’ Rep. 246, in which it was ruled, according to the opinion of Thompson, J., that being a public officer is no excuse for not going to trial.

        Weed v. Ellis, post, 115; Jackson v. Valentine, 3 Caines’ Rep. 128; younger issues being tried, not always proof that a cause might have been brought on.

       S. P. Wright v. Murray, 7 Johns. Rep. 286. But a copy must be served when relied on in support of a motion. Fisk v. Bryden, 3 Johns, Rep 244.


text:
    Van Ness against Gardiner.
    last proclamation of a fine made mum pro tune.

    The last proclamation of a fine had been omitted; it ought regularly to have been made last term; the application now was to have .it' made nunc pro tune, and endorsed as of the last term.
   Per Curiam.

We see no objection to it at present.,

Motion granted.

      а) Quœr tamen.

       Fines abolished, 2 Rev. Stat. p. 343, s. 24.


author:
      Per Curiam.
     Livingston, J.

text:
    Ex parte Manning.
    A public prosecution must be at the expense of the prosecutor, unless, on disclosure of his circumstances to the court, they find him an object of public charity.
    This was an application on petition to be allowed the expenses of a criminal prosecution.
   Per Curiam.

The court is called on to allow against the county of Albany, an account for expenses incurred by a prosecutor in carrying on a public prosecution. The application is made under the fifteenth section of the act “ regulating certain proceedings in criminal cases.” This clause, taken in connection with the one that follows, we consider as limiting the discretion of the court to those persons who are objects of public charity, and as never intended to apply to those who can bear the expense of discharging their duty by a public prosecution.

The next clause limits the discretion of the court to twenty-five dollars: and this, according to the 15th section, only on consideration of the circumstances of the prosecutor : the words are his circumstances: therefore, till they *are disclosed, the court has not any discre- [*60] tian to allow compensation. However hard it may be to individuals to attend a suit, and to compel a witness to leave his home, that is a subject in which the legislature must interfere. We can give no other consideration to this than what the interpretation of the act allows. There are charges here for sums paid to witnesses, and the act states that no witness is to receive a compensation, unless poor.

The Attorney-General observed, allowances, similar to that prayed for, had been made at oyer and terminer.

Livingston, J.

When presiding in that court I have refused them, and decided according to the opinion of the court now delivered.

Petition denied.

       21st March, 1801. See 1 Rev. Laws of N. Y.

         Poor witnesses attending on subpoena allowed expenses. The People v. Dowelle, Cole. Cas. 35.