text:
    Paschal N. Smith against Joaquim L. Steinbach.
    A policy on freight at and' 1,1 from” a foreign port, attaches on the commencement of lading the goods on board. A vessel seized on suspicion of a breach of neutrality is not, from such a sircum stance, to.be held guilty of a breach of neutral conduct. An abandonment is never too late if the loss con- - tiiiue total at the time of the action brought. A demurrer to evidence confesses every fact which the jury could have found from- the evidence. A seizure by a foreign state, of a vessel in a port of that state under a suspicion of a breach of neutrality, is a loss within the clause in a policy of insurance against the restraint of princes, &c.
    IN error upon a judgment pronounced by the supreme court in favour of the defendant, on a demurrer to evidence.
    The count averred a loss under the policy from arrest and detention by the Spanish government. The testimony to support this, and demurred to on the trial, showed an insurance on the freight of the ship Catharine, then at Barcelona, effected on the 23d of October, 1800 ; a seizure of the vessel by the Spanish government, in the September preceding, on suspicion, that “ the captain had aided a British frigate in cutting out, and capturing two Dutch vessels.’* An abandonment on the 30lb day of December, 1801, between which time and September, 1800, a witness, examined in the cause, proved that opportunities from Barcelona, to Neiv-York, were frequent, and had occurred. Lastly, a subsisting detention in July, 1802.
    Kent C. J. read the opinion of the supreme court as delivered by Livingston, J. from 2 N. Y. T. R.
      130. Mr. President. Several objections were made to the plaintiff’s right of recovering. 1st. It was alleged that the voyage contemplated, while the Catharine was at Barcelona, was different from the one insured, and that therefore the risk never commenced. The insurance being at and from Barcelona, it may admit of doubt, whether, as the loss happened there, the defendants would not be liable, although a voyage to the Havanna were in contemplation. But on this point of law, we gave no opinion, because it was sufficiently proved that the vessel was destined for Baltimore. Thus have the jury found, in another action on a policy on the ship, nor could their verdict have been different, without disregarding all the testimony in the cause. The defendants themselves were aware that this finding comported with the evidence, and, accordingly, directed their principal attack against the testimony,itself ; for they said — 2d. That Mumford was the plaintiff’s witness, and therefore could not be discredited by him. — Whether this gentleman be regarded as the witness of the one or of the other party, is not very material in deciding this cause: he had been examined out of court, at the instance of the defendants, and cross-examined by the plaintiff, who produced his deposition on the trial. , Perhaps the best general rule in such cases, would be to consider the witness, if his deposition be read, as belonging to the party on whose application he was examined, without any regard to the person who may finally make use of it. But without deciding this point, we thought nothing was done by the plaintiff to discredit Mumford, even if he had been his witness. It is not every mistake which a witness may make, when speaking from memory, that will discredit him.
      and it would be a strange rule, indeed, that a party producing a witness, should not be permitted, even by the witness himself, to correct a mistake which he may have committed. Nothing more ■yvas done. Mumford had sworn, that from certain papers, the destination of the cargo, according to his recollection, appeared to be for the Havanna: after this, there could be no impropriety in showing him the papers to which he alluded, or any other to refresh his memory, and to enable him to correct his error, if he had made one. This was no imputation on his character ; it neither rendered him infamous nor unworthy of credit, as to the other point to which he had deposed:—It discovered in the witness a laudable promptitude to rectify a mistake, into which an imperfect recollection had betrayed him, and thus added to, rather than detracted from, the weight of his testimony. 3d. The exhibits B. and C. being only copies, should not, it was said, have been produced. If no allusion had been made to these papers, by Mumford, they could not have been produced, to show the real object of this voyage, but he had already testified that he had made out certain claims against the Spanish government, for the Catharine and her cargo, which stated the vessel to be bound directly for the West-Indies; these papers, he added, were lodged in the Consulate office, at Barcelona. •—Having sworn thus far from memory, the plaintiff had a right to refresh his recollection, by the showing him copies of the claims referred to ; on inspection, he might probably be able to determine whether they were true copies or not, and certainly if he believed them true, they would furnish better evidence of what the originals contained, than any parol ac~ count of their contents, which was the only way in which the defendants had attempted to prove them. There is no reason to say, the originals were in the plaintiff's possession. They remained in a public office in Spain: and this kind of infei~ior proof, was rendered proper by the defendants’ own conduct. They had not only examined the witness, as to the contents of these papers, but gave the plaintiff every reason to believe, that nothing would be required of him, but proof that the property was American. 4th. The abandonment, it was said, was too late. The Catharine was seized in September, 1800, and not abandoned until fifteen months thereafter. It has already been decided by the supreme court, in Earlv. Shaw, that an abandonment may be made at any time after the accident, provided, at the date of the abandonment, the loss still continue total. This being the case here, the abandonment was in season. 5th. It is contended that Mr. Mumford was mistaken or surprised on his cross-examination, and that, therefore, a new trial should be had. For this purpose, his affidavit was produced, taken nine months after the trial, in which he stated, that the captions of the exhibits B. and C. were not shown to him, tó the best of his knowledge and belief, and endeavoured to explain why they were made as they appeared; to wit, to prevent endangering the insurance. This explanation came too late; a witness under examination may explain and correct himself, but it would be dangerous and improper to receive any elucidation from him, after the trial, and especially after the lapse of so many months: besides, the defendants were apprised of his deposition, long before the trial, and were without excuse, for not calling on him then, to make such explanations as might have been deemed important. 6th. But it was said there had been a discovery of new evidence, and for that reason there should be another trial. It was also said, that if a new trial had been granted, there were two witnesses who were not known to the defendants at the time of the trial, who could testify as to the destination of the Catharine. — This was the fact principally controverted on the former trial, and we were applied to for another, merely because all the witnesses who knew something of the matter, had not been examined. Every one must perceive the inconvenience and delay which would arise from granting new trials, upon the discovery of new testimony, or other witnesses to the same fact. It often happens that neither party knows all the persons wdio may be acquainted with some of the circumstances relating to the point in controversy: if a suggestion, then, of the present kind be listened to, a second, if not a third and a fourth trial, may always be had: there may be many persons yet unknown to the defendants who may be material witnesses in this cause, and this may continue to be the case after a dozen trials. Cases may occur in which, if great doubts exist, as to the first decision, it may.be proper, on the discovery of further witnesses, even to the same fact, to open the cause for a second discussion; but this is not one of them. The principal fact here was clearly proved, and if Lewis and Byrnes had both been examined, it is very uncertain whether the result would not have been the same.

      Pendleton, for the plaintiff The effect of a demurrer to evidence is, that the demurrant, admitting all the facts which appear in evidence on the trial, still says they are not sufficient to entitle the party who produces them, to recover or maintain the issue. The proceeding is founded on this principle, that where facts are agreed on, there is no occasion for the determination of a jury ; for, all that is then necessary, is to pronounce the law on them. But when the facts are not agreed to, then they go to a jury to determine their existence. In this case the facts stated, are acknowledged. The court is notv to decide whether every fact necessary to entitle to a recovery for the loss claimed, has been proved. If not, we think ourselves justified in saying there must be a reversal; because it is, in all actions, the duty of a plaintiff to make good his claim, it being never required of a defendant, to show negatively, that there is no title to a recovery. An insured, then, ought to establish, that the subject matter was at the risk of the underwriter; that it was in such a situation, as to be within the terms of the policy, and the nature of the loss such as will authorise a resort to the assurer. On the present occasion, it should have been made to appear, not only that the Catharine was at Barcelona, but bound to Baltimore, on the voyage insured, and that under these circumstances, she was seized. To this, the proof is inadequate. For though the being at Barcelona, and the seizure are established, there is a defect in the testimony, as to the port of destination; unless, indeed, the court may infer that the Catharine was to go on the voyage described, merely from her being at the port from whence insured. This can never be a matter of inference, for it-is laid down, that "the loss must appear to have happened during the continuance of the risk." Marsh. 615. In Wooldridge v. Boydell, Doug. 16, the words were “ at and from Maryland to Cadiz,” but because it was not shown that the vessel was bound on the voyage insured, it was held that the policy did not attach, and the plaintiff not entitled to recover. The same principle is found in Murdock v. Potts, Marsh. 230. The mere being at a port does not comprehend sufficient proof, that the vessel was there for the purpose of pursuing the voyage described. Though a demurrer to evidence admits the facts proved, it does not warrant the presumption of a fact not in evidence. If such may be inferred, the party demurred to, should specify them, and is not bound to join in demurrer till they be admitted, or proved. If, however, such fact be material for the determination of the cause, as it neither admitted nor proved, but only inferred, there should be a venire de novo directed. This, however, is not that, on which we principally rely. We contend, that as the plaintiff founds his claim on a seizure upon suspicion of an act of his agent, which, if true, would amount to a violation of neutrality, and vacate the policy, he was bound also to establish, that there was no ground for the suspicion. Not having done go, and joining in demurrer, he has admitted the cause of suspicion to be well founded, and cannot, therefore, recover. We insist also, that the rule adopted jn the supreme court of allowing the underwriter at any period to bring his action, and recover as for a total loss, if the loss then continue total, is erroneous. The principle of insurance law is, that the assured, when informed of an event by which he is entitled to abandon, ought to elect to do so, within a reasonable time. If within such time this be not done, it is to be presumed that he has elected not to abandon, and the underwriter will be liable only to an average loss. In Marshall, 508, the rule on this subject is accurately stated. He says, “ that as soon as the insured receives advice of a total loss, he must make his election, whether he will abandon or not. If he determine to abandon, he must give the underwriters notice of this, within a reasonable time, after the intelligence arrives ;■ and any unnecessary delay in giving this notice, will amount to a waiver of his right to abandon; for unless the owner does some act, signifying his intention to abandon, it will be only a partial loss, whatever may be the nature of the case, or the extent of the damage.” This doctrine is justified by reason, as well as authority.— Abandonment is the act by which the assured transfers to the underwriter, the chance of recovering what is saved, and calls upon him, as if the subject insured had been totally lost. For where there has been an actual total loss, there can be no abandonment. For it is founded on a supposition, that something has been saved, or maybe so. It is, however, an extreme remedy,and allowable only in extreme cases. If the property be in such a situation, that it may be recovered, the equity of the law says, we will not oblige the assured to wait the event, but we will permit him to call on his underwriter, who shall take the chance of recovery. Hence, it is optional, whether an insured will abandon or not. “ The insured is not obliged to abandon in any case. He has an 0 J election.” Per Lord Mansfield, Marsh. 494. But his election jg a positive act, of which notice must be given, in order to place the underwriter in a situation to look after the property. What act is to be done, to evince the intention of not abandoning.— None that is overt. It can be manifested only by being passive. Therefore, abstaining from abandoning, must be an election not to abandon. Proceeding in attempts to recover the property, is evidence that an abandonment of it was never contemplated, and an indemnity for the expenses incurred, all that was looked forward to. Fourteen months passed without any notice taken of the accident.— After such a lapse of time, it is to be presumed, that the party has elected to run, himself, the chance of recovery. If not, and no limitation be put to the period,, within which an insured must elect, it can never be known to an underwriter, when his responsibility ceases ; it may last forever. The convenience of the thing, therefore, requires, that abandonments should be allowed only within a reasonable time, and that should be limited by the period, within which, communication is in general received, unless it be shown, that none has arrived. The contrary doctrine opens a door to fraud, and affords an opportunity to speculate on the underwriter. Under a particular clause in our policies, the underwriter is to pay all charges incurred in defending the subject of his policy. Is the assured to go on for any length of time, involving his insurer to any amount of expenses, and if the property be recovered, take it to himself, if not, claim for a total loss, and demand payment of the expenses also ? Surely, where the whole of the subscription is to be required, the insurer ought to have a discretion allowed him, to pay the amount, and relinquish the pursuit. By such a system, the assured cannot suffer, though, by-rejecting it, the assurer may. The underwriter has a right to insist on being put in a situation to act for himself, and not to have forced upon him an agent, whose interest it is to hazard every kind of expenditure, because, whatever may be the result, he cannot lose, and may gain. It is inequitable, that the underwritten should, at his pleasure, wait the termi - nation of the accident, before he abandons, and yet the underwriter not be able to act for himself, but at the permission of the insured. He ought to be obliged to elect to abandon or not, before the consequences of the event are known, and not to be at. liberty, without notice, to saddle the insurer with expenses and charges. No country leaves the period of abandonment totally in the breast of the underwritten. By many nations, the time within which to be made, is expressly limited. But to leave it without bounds, is held to be law in this state alone. The English decisions are in conformity to the principles I have advanced. In Mitchell v. Edie, Marsh. 510, Mr. justice Ashhurst says, “ the insured are bound to decide and signify their election to the underwriters the first opportunity; for though the person who takes upon him to act on the occasion, for the benefit of all concerned, is not the agent of the insured; yet, if, upon receiving notice of the loss, they do not elect to abandon, they adopt the acts of such person, and make him their agent.” In ano» ther case, the having sent a letter of attorney to . _ ° J receive and remit the proceeds of a cargo sold, and lying in a court of admiralty, was held such an intermeddling, as to destroy the right to abandon, for, sa^ I°rd Kenyon “ the insured must make his election speedily, and put the underwriter in a situation to do what is necessary for the preservation of the property, whether sold or unsold.” By the 42d art. of the marine, it is required to give instant notification of the loss, with a declaration of having elected to abandon, when the period allowed so to do, has expired. 2 Emer. 180. From this, it appears, that the principle we contend for, is acknowledged even by the law of France, which does not exact an immediate abandonment.

      Hoffman and Harison, contra.
    A demurrer to evidence not only admits every fact which has been "offered in testimony, but every deduction which, from those facts, a jury might make. This is consonant to the reason of the thing. For, as by such a proceeding, the case is taken from the jury to the bench$ the court is substituted in their place, and may make every inference they might draw. By adopting this mode of procedure, a party cannot deprive his adversary of any advantages a jury trial would afford.— He concedes, that they shall all be his, if the evidence be determined sufficient to maintain the issue. After the applicability and legal qualities of the testimony are allowed, the court pronounces the judgment in conformity to what they think a jury would have been warranted in determining. These principles have been settled in the English courts, by the-" case of Cocksedge v. Fanshaw, Doug. 119, and in ours, by that of Livingston v. Shutz. We con. tend that the circumstances of a vessel being at a port, taking in her cargó there, and a policy effected on the freight to arise on that cargo, from the port where she was, to another, are sufficient to warrant an inference, that she was destined for the port to which insured. But we are told, that having shown a seizure on suspicion, we ought to have proved that suspicion to have been groundless, or it must be presumed it was well-founded. This is contrary to every principle of law, and repugnant to the nature of the proceedings now before the court. 1st. As a matter of defence, it ought to be made appear, by the now plaintiff. 2d. As the demurrer admits the fact of the seizure, it is to request a presumption against the plaintiff’s own admission. He who demurs to evidence, asks nothing for himself, but denies that his opponent has shown any right. For a person tendering a demurrer, no presumption, therefore, can be made, as he concedes all presumptions are to be on the side of his adversary. That the right of abandonment is taken away, unless exercised immediately after notice of the loss, is not, as a universal rule, warranted by the cases cited. They establish no more, than that when the restoration of the property, or any other circumstance, shows the loss is no longer total, the assured cannot, by an abandonment then made, convert that which is at the time, a partial into a total loss, merely because it had once technically subsisted, Thus, in Mitchell v, Edie, the vessel, after being captured and plundered, was restored, but, from the taking away of her rigging, obliged to make for a port of necessity, where the proceeds of the cargo were in the hands of a part owner for near three' years, and the underwriters called on, merely because he had fai1ed~ The court held this a partial loss, not to be turned into a total one, by abandonment. So in Allwood v. Henkell, the vessel was captured, recaptured, restored on salvage; and the money in the admiralty.— The total loss had ceased, and, therefore, there could be no abandonment. On this principle, the determination of Church v. Bedient and Kimberly

       proceeded. If, indeed, the underwriter has paid .the loss, he then becomes a purchaser of the subject insured, and though it be afterwards recovered, it will belong to him. Da Costa v. Firth, 4 Burr. 1966. The consequence will be the same, though it be, in fact, restored at the time the amount of the . subscription is paid. It is a fallacy, to say, that the underwriter is injured by allowing of an abandonment, at any time, whilst the loss continues total. The assured is, by the policy, warranted in prosecuting for the recovery of the property. If he succeeds., it will go in diminution of the loss. If he do not, he has acted only according to his authority, and as the loss is then total, the underwriter is, of course, liable for the full amount. To adopt the rule contended for by the now plaintiff, would render almost .every technical, a total loss. It would, deprive the insurer of the agency of the insured, and oblige hint always to send a special deputy to take care of his. concerns. The property being originally that of the assured, he has a right to calculate, when the abandonment is to be made.
    Pendleton, in reply, referred to Gibson and Johnson v. Hunter, 2 H. Black. 187, in support of his positions respecting a demurrer to evidence, and in listed, that the spes recuperandi was a part of the insurer’s right, and ought to be abandoned to him.

         See 2 N. Y. T. R. 129 to 134.

       It is no ground for the court to grant a new trial, that a witness called to prove a certain fact, was rejected on a supposed ground of incompetency, where another witness who was called, established the same fact, and the defence proceeded upon a collateral point on which the verdict turned. Edwards v. Evans, 3 East, 451.

       In Hamilton v. Mendez.

         Allwood v. Henkell, Park 172.

       l vol. 21.

   Per curiam, delivered by Lansing, chancellor.—

On this case, three points have been made. 1st. Whether there is proof that the freight is within the policy ? ' 2d. Whether the insurer is bound to respond for the loss occasioned by a seizure, on suspicion of a breach of neutrality ? 3d. Whether the abandonment was not too late to found any right* or recovery on ?

The plaintiff, by the demurrer to evidence, has admitted every fact which the jury could have found from the evidence.

From the demurrer, it appears, that the defendant to maintain his issue, had proved that De Govert, on whose account the insurance was made, was owner of the vessel, the freight of which was insured by the policy ; that he was an American citizen, and that the ship was purchased in the United Statest of an American citizen. It is further stated, that in the policy she was described as the American ship Catharine, and that the defendant had produced the necessary preliminary proofs before the policy was read. These preliminary proofs, among others, from the obvious import of the terms, must have beert the evidence that the policy attached to the ship Catharine, and, of course, she was an American bottom. This has not been a point in controversy, but it is necessary to advert to it, in making certain deductions, which, I think, must determine the first point.

The policy, on freight, was on a voyage “ at and from Barcelona to BaltimoreThe ship was seized in the harbour of Barcelonan

It is laid down as a rule, that if an insurance be u at and from” a place, the risk commences from the time of subscribing the policy, if the ship is at home. If abroad,, from the first moment of her arrival at the place specified.

An insurance on freight, commences at the time the goods are first on board. It has been held that an intention to deviate, will not avoid the policy, and that a risk, once commenced, cannot be apportioned.

If these principles are correct, the policy attached on the freight the instant the goods were embarked at Barcelona, which, as related to the ship, was a foreign port. Whatever change in the destination of the vessel might have been contemplated, the risk having commenced, the insurer was entitled to the premium, and if the insured had, by changing the destination of the voyage, diminished the risk, by a deviation not warranted by the policy, he would have lost his money, without any correspondent benefit.

Until the destination of the vessel was actually altered, she was covered by the policy, and as she was at, the port of departure, unless the contrary appears, it is to be presumed she was there for the purpose of pursuing her voyage to Baltimore.

As to the second point, I know of no instance in which bare suspicion has been considered as proof of breach of neutrality. It is the every day’s practice of belligerents to capture and send into port, neutral vessels navigating the ocean, on the slightest suspicion, which, the rapacity of the captors converts into confirmation so vehement, as to amount to positive proof; but an allegation of the conviction by the captors, of the truth of such suspicion, can form no ground for j udicial decision, or to infer a breach of neutral duties. There is no other difference between this case and that of stopping a vessel on the seas, on suspicion, but that here, the seizure was in port, by an agent, more intimately connected with the government, than those agents who search and send in vessels. But the suspicions of neither can be a guide to the tribunals of our country (who only receive foreign judicial acts as prima facie, evidence) unless they have been proved to be well founded.

Within the intent, of the policy, this is a mere act of power—a restraint by a foreign prince.

The doctrine of abandonment is only adapted to the case of a partial loss, connected with a total one, by the operation of law. It is expressly founded on the consideration that the subject insured, though not totally annihilated, for then, nothing would be left for abandonment, is so much deteriorated by the perils insured against, as not to make it worth holding to the insured. It is a doctrine calculated to distinguish between average and technical total loss, as far as respects the insurer, not to create new duties, or impose new burthens on him, but to protect him from practices to which he might be exposed, by speculations on the state of the markets, or other contingencies, which may influence the value of the property insured.

The English doctrine on this subject' laid down by lord Mansfeld, in the case of Mitchell v. Edie, and afterwards adopted and confirmed by lord Kenyon, in the case of Allwood v. Henkell, and which appears to me well founded, is, that the insured must, in the first instance, make their election whether they will abandon or not.

In the case of Hamilton and Mendez, lord Mansfield observes, “ the plaintiff’s demand is for an indemnity ; the action, then, must be founded on the nature of his damnification, as it really is at the time ofi the action brought. It is repugnant upon a contract of indemnity to recover as for a total loss, when the final event has decided, that the damnification, in truth, is an average, perhaps no loss at all.” So this would be equally repugnant to the nature of the contract, to apply the doctrine of average loss, to a case in which the final event, as far as it has any bearing on the point in controversy between the parties, has determined it a real total loss. For the ship is still detained, and, if she was liberated, the freight which was the object of insurance, is as completely lost, as if she had been sunk in the ocean.

Whence, then, is the estimate of average loss to be taken? and what would the abandonment transfer, from the insured to the insurer ?

It is certainly not the interest of the insured to delay an abandonment. By doing so, he incurs many disadvantages. His rights on the policy are suspended, and any event which may restore the property insured, however much injured, places him in a si tuation to recover only an average loss.

Upon the whole, I am of opinion that the insured, when the loss on the policy happened, had it in his election to abandon. That by his delay, he has waived his right of abandoning, so far as might operate to convert an average, into a total loss, and has left the insurer the chance of enjoying the advantage arising from restoration, intermediate the time in which he waived it, and bringing his action, so as to preclude him from recovering for a technical total loss. But as the loss has continued really total’, that the defendant had a right to recover, as for such total loss. I am, therefore, clearly of opinion, that the judgment of the supreme court is correct, and that it ought to be affirmed.

Judgment of affirmance,,

        Cocksedge v. Fanshaw, Doug. 127. Livingston v. Shutz, in this court.

       1 D. & E. 608.

        Park, 172.

       2 Burr. 1198.

        Dal. 280. Cumberland v. M'Call.


source: Caselaw Access Project

author: Benson, J.

license: Public Domain

text:
    Le Roy and others, Appellants, against Servis and others, Respondents.

    ■ THE facts of this case are stated in vol. 1. p. 1, of the introductory cases, but as the opinion there is that of Mr. Gold only, the decision of the court is now given.
   Benson, J.

I premise, that in a case otherwise properly cognisable in a court of law, if the plaintiff, for want of a writing, the evidence of his right, is obliged to sue in equity, it is a rule there, that he must verify on oath, the allegation that the writing is lost, or in the possession of the defendant; that this rule is in the same reason with the rule in the courts of law, in cases of pleas to the jurisdiction, foreign pleas, and claims of cognisance, and is intended only to prevent a change or transfer of jurisdiction, without any cause shown as arising from facts proved on oath, and doth not diminish or deprive the defendant of any real advantage of defence; so, that the proof, although not absolutely positive and conclusive, but less precise and full, will suffice. That in order to confine the rule to its mere object, if the bill is for discovery only, or if it ts for a general discovery of all writings in the possession of the defendant, whatsoever they may be, and where it is to be supposed the plaintiff hath no particular knowledge of them, but yet that some writings of some kind, in which he is interested, and relative to the property he seeks to recover, do exist and are in the possession of the defendant, that in these cases, the allegation of ¡the loss of the papers, or that they are in the possession of the defendant, need not be on oath. That until some decisions in England, within ten years past, it hath always been held, as it is expressed in the books, that “ a demurrer being bad in part, must be overruled,” for it is not like a plea “ which may be allowed in part; but a demurrer void in part is void in toto, and can - not be separated,” “ that a general demurrer to the xvhole bill, if there is any part of the bill to which the defendant ought to put in an answer, the demurrer being entire, must be overruled,” “ that a demurrer if defective in part, is bad for the whole, for it cannot be split.” That although the decisions of the English courts are deservedly of great authority, yet the reasons in these alluded to, “ the supposed hardship, on a defendant, if he cannot avoid the expense of taking a copy of a long bill, if there chances to be a right to a discovery,” and thereby making “ the only question to be, whether the plaintiff should be put to the expense of a bill, or the defendant of a newdemurrrer,” are not convincing; for if the defendant, instead of a general demurrer to the whole bill will demur particularly to each sepa, rate or distinct part or matter, to which he may suppose <£ he ought not to putin an answer,” the demurrer may be overruled as to some parts or matters, and allowed as to others ; and the defendant, among other costs, may be decreed the expense of so much of the copy of the bill, to which the demurrer was allowed ; so, that there will not, in that respect, be any hardship left on him. It may be also stated, that there are other means, and within the powers of the court, to correct the mischief, if it prevails, of filing bills of an undue length, containing matters to which the defendant ought not to answer, preferably to merely turning the plaintiff round, and subjecting him to the delay and expense of a new bill. The conclusion, therefore, is, that there hath not appeared to us sufficient reason to chánge an established and approved practice ; and, consequently, if there are any matters in the bill, to which the defendants ought to have put in an answer, the demurrer being general, and to the whole bill, must be overruled in the whole. This leads to an examination of the several causes of demurrer.

First cause of demurrer.—The defendants object to the proof as arising from the affidavit of the complainant, Boon ; 1st. That there is only the oath of one, whereas there ought to be an oath from every of the complainants ; 2dly. That the oath ought not only to state the destruction of the supposed writings, but also that the deponents have them not in their own possession ; and 3dly. That the deponent doth aot swear from his own knowledge, but from the information of others. Here I state that the proof of the allegation of the loss of the writing is restricted to the oath of the party, in exclusion of the oath of a stranger; and, therefore, if the circumstances of ' the case are such, as that it is to be presumed the party cannot know the facts from his-own knowledge, he must then, from necessity, be admitted to testify from the credible information, or in other words, from the hearsay of others ; that, whenever the law admits hearsay testimony, the fact is then as competently thereby proved and established, as if the person giving testimony, was to testify from his own knowledge ; that, whenever a person swears from the credible information of others, it not only implies that he hath inquired to an extent, and in a manner, to produce a rational belief, that the fact is as he testifies it to be, but it also excludes the supposition that he hath any reason even to suspect it to be otherwise; that, a distinction is to be taken between the cases, where the writing is so lost, only, as that it cannot for the present be found, yet is supposecbstill to exist, and the cases where the writing is wholly destroyed, and, therefore, supposed not to exist; and that, although in some of the former cases, it may be proper, in order to guard against evasion, to require the party to swear also, that he hath not himself the writing in his possession, yet, that in the latter cases, it would be altogether a useless accumulation of proof; it would be to require proof of another proposition of fact, which follows as a necessary logical consequence from one already proved. Assuming it, therefore, and which, I think, cannot bé questioned, that the present is one of the cases in which proof from -the information, or hearsay of others, is to be received, then the fact, of the destruction of the supposed conveyances, from the original patentees to Sir William Johnson, is duly and competently proved; and, consequently, the affidavit of the complainant, Boon, alone is sufficient, so that the first cause of demurrer fails.

Second cause of demurrer. — It must be admitted, that there cannot be a more sound or salutary principle than the one on which this cause of demurrer proceeds; that a court of equity should always withhold its aid and countenance from a suitor, whose conduct appears in any part, such as a conscience rightly informed, cannot approve : but the principle is not applicable to the present case. The supposed illegality of the agreement between the original patentees and Sir William Johnson, consists in its being in contravention of the instruction from the king to the governor, restraining the patents for lands, to quantities not exceeding 1,000 acres to each patentee. The futility of this regulation was soon discerned, and the instruction was, for not much less, if any, than half a century before the patent mentioned in the bill issued, considered altogether as a dead letter, and the compliance with it a mere matter of form.— But, even conceding that the legality of an agreement, similar to the one supposed to have taken place between the patentees and Sir William Johnson, might be made a question, yet that could only be the case where the agreement was before the Indian purchase; because, immediately on the purchase, the king, in whose name these purchases were always made, became trustee for the persons to whose use they were made, and the trust, possibly on artificially legal principles, might have been limited to s quantity not exceeding the rate of 1,000 acres to each person. The several cestui que trusts, howe-ver, had an equitable interest in their respective shares, which they could legally assign, and agree to vest the title at law in the assignees, on the issuing of the patent; and, as it doth not appear when the agreement in the present instance was made, in respect to whether before or after the Indian purchase, the illegality of it cannot come under consideration on the defendants’ demurrer. It was a matter of which they could avail themselves by plea only, with the requisite averments supplying the uncertainty of the bill, as to the time when the agreement was made.

Third cause of demurrer.—The answer which has been given to this cause of demurrer is, that it was not requisite for the defendants, in answering the bill, to declare, either that there was an adverse possession, or if there was, then that the defendants knew it; but, that it would have been sufficient, if they had simply admitted, that their vendors were not, at the time of purchase by them, the defendants, in possession; because, whether the possession was vacant, or whether it was adversely held by others, and if the latter, whether the defendants knew it, which ever might have been the fact, was wholly immaterial. This answer, it must be owned, is far from being unsatisfactory; at the same time, the principle,, that a man is not held to accuse himself, is so estimable, that we cannot be too cautious in admitting distinctions or qualifications of it. Therefore, and especially as the discovery sought for in this instance, is of a fact altogether useless in the complainants’case, I should have supposed it more safe, if a particular demurrer had been put in to that part of the bill, to have allowed it, and ordered the allegation and interrogatory which the demurrer supposes to be exceptionable, to be struck out of the bill.

Three last causes of demurrer.—I shall consider these causes together, for I am not persuaded they might not all have been shown under the last, the general cause of demurrer, they being essentially the same, amounting to a denial that the court ought to grant a relief, supposing all the allegations in the bill to be confessed, which is only saying in other words, there is a want of equity. I here remark, that it is ordinarily premature, wholly to dismiss a bill on a demurrer for this general cause, and so, as it were, at the threshold, unless the complainant’s case is, from his own showing, radically such, that no discovery or proof can possibly make it a proper subject of equitable jurisdiction. Such was the late case of Munro and others, appellants, v. Allaire, respondent, decided in this court, where the complainant came to have a purchase of lands perfected and confirmed to him, the supposed sale being made by trustees under a will, and he being one, and not alleging himself also a cestui que trust, one of the legatees to whom the money arising from the sale was to be paid, and that he, although a trustee, was obliged to purchase, in order to avoid the loss to himself as a cestui que trust, by a sale at a less price : for it is to be remarked, that a defendant doth not forego or waive a single advantage as to the merits, or the point, whether the complainant hath equity, by not demurring. He may equally insist on the same matters, by way of answer, which he might have done by demurrer, and if he should even omit them in the answer, he may still avail himself of them in argument on the final hearing of the cause ; my opinion, therefore, is, that the bill ought to have been retained, and that the court of chancery should have reserved itself on the question—whether the complainants were entitled to any, or what relief,— until all the proofs, either as arising from the answers of the defendants or otherwise had come in; and, consequently, that the several decrees allowing the respective demurrers of the respondents, and dis - missing the appellants’ bill, be reversed. The respondents have not only put in separate demurrers, but they have also proceeded separately to decrees. How far, or by what means, a court of chancery-ought to restrain and regulate the right of defendants to sever in their defence, so as to prevent them from, availing themselves of it solely to vex the complainants, are matters in which I forbear from an opinion in my place in this court, because it is unnecessary : We can only declare and establish what shall be the consequences of an unnecessary severance, if there should afterwards be an appeal and a judgment of reversal for the complainants. This may, in some measure, prevent the abuse alluded to. My opinion, therefore, further is, that each respective respondent in the present appeal, be decreed to pay the appellants for their costs on the appeal, a sum to the same amount, which would have been decreed to be paid by them all 'jointly, if they had joined in demurrer in the court below.

DECREED

ON hearing counsel on this appeal, it is adjudged, ° 11 ordered and decreed by this court, that the • decrees of the court of chancery therein complained , of, allowing the separate demurrers of the respondents respectively, to the bill of complaint of the appellants, against the respondents, and the other defendants in the bill named, and that the said bill, as it respected each of the respondents, should be dismissed, be reversed ; and further, that the respondents severally pay to the appellants, the sum of 3.0 dollars for their costs on this appeal, in respect to each respective decree so reversed, and that the cause be remitted back to the said court of chancery, and that there, such further proceedings shall be thereupon had, as well for execution of this judgment, order, and decree, as otherwise, as shall be agreeable to N2 equity and justice.

       14th March 1798.


author: Bensou, J.

text:
    Peter Jay Munro, Benjamin Griffen, Isaac Sniffin, and Mary Palmer, the younger, Appellants, against Peter Allaire, Respondent.

      PETER ALLAIRE, of Marmaronecic, in the county of Westchester, the respondent in this cause, filed his bill of complaint, some time in the year one thousand seven hundred and ninety-five, against the above named appellants, and therein stated, that Benjamin Palmer, late of Marmaroneck aforesaid, being seised and possessed of certain real
      and personal estate in the said bill mentioned, executed his last will and testament, in due form of law, and thereby directed his executors to sell and dispose . of his estate, real and personal, within one year after his decease, to pay all his just debts and funeral charges, and as to the remainder and residue of the monies arising from the said sale, of his real and personal estate, he gave and bequeathed unto his son, Thomas Palmer, eighty pounds, to be put out at interest by his executors, until he attained the age of twenty-one years; that the interest thereof, should be paid annually to his wife, and should his son die before he attained the age of twenty-one years, he gave the said sum of eighty pounds to his said wife, Mary Palmer, one of the appellants, and devised all the residue and remainder of his estate, both real and personal, (that might come into the hands of his executors) unto her, her heirs, executors and assigns forever, to do with as she should think meet — and appointed his said wife, executrix, and the said Benjamin Griffen, and the said Peter Allaire, executors of the said will.

      A purchase b~ an executory who has a power toseh for the benefit of a third person, from his cestui que trust is not favoured in equity, and a bill by him for a specific performance is also a cestui cannot be maintained, but it seems that a purchase by a trustee, who ■que trust, may, if to save the property from loss, be sustained.

      The bill further stated, that the said Benjamin Palmer, died without altering or revoking his will; that the appellant, Benjamin Griffen, and the said Peter Allaire, proved the same ; that the appellant, Mary Palmer, refused to prove the will, or inter-meddle with the said estate, as she was not able to read or write; that soon after this, the appellant, Isaac Snifjin, wanted to purchase her right in the said estate,- and offered for it, four hundred and fifty pounds ; that the appellant, Benjamin Griffen, advised, the taking of that sum; that the said Mary Palmer, was willing to take that price, if no more could be obtained ; that the said Peter Allaire, was desirous of purchasing; that a long treaty for that purpose took plac; in which judge Tompkins was consulted, as the friend of the said Mary Palmer ; the proceedings on which consultation the said Peter Allaire stated by his bill, were fairly conducted on his part; that articles for the said purchase, at the price of six hundred pounds, were executed by the said Peter Allaire, and the said Mary Palmer, and afterwards, the following conveyance was made to him, by her, of all her right, title and interest in the estate of her said husband ; she promising to give a better conveyance, if that should be found defective.
    The indenture set forth, that Mary Palmer, for and in consideration of the sum of six hundred pounds, remised, released, and forever quit-claimed, and by these presents, made on this occasion, “ did remise, release, and forever quit-claim, unto the said Peter Allaire, and to his heirs and assigns, all her right, title, interest, claim, dower’, or title of dower whatsoever, which she the said Mary Palmer, now has, may, might, should, or of right ought to have, or claim of, in, or out of all and every, the messuage, lands, tenements, and hereditaments, goods and chattels, which were belonging to the said Benjamin Palmer, the younger, her late husband, which were devised to him, by the last will and testament of Benjamin Palmer, the elder, and Mary Palmer, deceased, excepting the sum of eighty pounds,’’before mentioned, left as aforesaid, to Thomas Palmer, with remainder to Mary, his mother, “ and all manner of action and actions, writ or writs of dower, whatsoever, so as neither she the said Mary Palmer, nor any other person for her, or in her name, any manner of dower, or writ of action of dower, or any right or title of dower, of, or in the said messuage, lands, tenements and hereditaments, or of, or in any part or parcel thereof, (except as before excepted) at any timé hereafter, shall, or may have claim, or prosecute against the said Peter Allaire, his heirs or assigns.”
    The said bill further stated, that he, Peter Allaire, had executed a bond and mortgage to the said Mary Palmer, conditioned for-the payment of three hundred and twenty pounds, part of the said purchase money ; that the testator’s debts were estimated at two hundred pounds, to discharge which, and pay Mary Palmer the overplus, (if any) and also for the securing the said sum of eighty pounds, and the interest thereof, he, the said Peter Allaire, delivered another obligation to the said Mary; that she gave him a bond to refund, if the debts should prove greater than what they were estimated at, and together with the appellant, the said Benjamin Griffen, promised to execute a deed in trust for him, of the testator’s property.
    That he, the said Peter Allaire, had advertised for the creditors of the testator, to bring in their accounts to him, and had paid several, particularly to the appellant Benjamin Griffen, several accounts, which had been before paid by the said Benjamin Griffen, and that the price of six hundred pounds, was the full value of the said real and personal estate.

      The bill further stated, in substance, that the appellants, J~aac Snjffin and Peter ~.Thy JJ/funro having notice of the premises, had procured a subsequent conveyance for the said real and personal estate from the said Benjamin Griffen and Mary Palmer, who qualified herself as an executrix for that purpose.—That the appellants, Peter Jay Munro and Isaac Sniffin, or one of them, indemnified her for such conveyance. That the said Peter Jay Munro had possessed himself of a great part of the real and personal estate of the testator, and refused to account for the personal estate to the said Peter Allaire, or to let him into the possession of the real estate. The bill, therefore, prayed, that the said Peter Jay Munro might account for such part of the personal estate of the said Benjamin Palmer, as had come to his hands; for a specific performance of the agreement made between the said Peter Allaire and Mary Palmer ; to receive a more perfect assurance and conveyance of the estate of the said Benjamin Palmer, deceased, and to receive to such other and further relief as the nature of his case might require.
    To this bill the appellants, Isaac Sniffin and Mary Palmer, filed their general demurrerfor want of equity as against them. The appellant, Benjamin Griffen, also demurred for the same reason, to so much as respected the real estate of the testator, or demanded any relief against him relating thereto ; answering, nevertheless, that he never had agreed to convey the said real estate to the said Peter Allaire; and that the said Peter Allaire never paid any of the testator’s debts, except some trifles, amounting to about two pounds, six shillings, which were discharged with money received by the said Peter Allaire, from the sale of a part of the personal estate of the testator. The appellant, Peter Jay Munro, also demurred for the same cause, to so much of the said bill, as respected the said real estate; but answered, that he had never possessed himself of any part of the personal estate of the testator, nor taken any conveyance or assignment of the same.
    Upon these several demurrers the cause came on to be argued in the said court of chancery, when his honour the chancellor was pleased to direct and order, that the demurrers should be overruled, and that the appellants should answer fully to the said ~ bill; from which orders and directions the appellants severally appealed.
    1st. Because the said Peter Allaire as a trustee and executor, could not be a purchaser under the testator’s will, of the said real or personal estate, nor was the said Mary Palmer, at the time of making the said pretended sale, in capacity to do any act which could affect the real estate of the said testator.
    2d. Because the other executors named in the said will, could never give a valid conveyance -for the same to the said Peter Allaire.

    3d. Because the testator’s creditors did not appear to have been satisfied, nor his son’s annuity paid ; but on the contrary, according to the said Peter Allaire's own showing, neither the one nor the other had been done ; neither had any of the said creditors, nor had the said legatee consented to the said pretended sale to the said Peter Allaire, or to look to him, alone, for their demands.
    4th. Because the heir of the said testator was not a party of the said bill.

      5th, Because, as to the testator’s personal estate, there was no charge that the same had come to the hands of the said Benjamin Griffen, Mary Palmer, or Isaac Sniffn, nor was any" account thereof requested from any of them. And the said Peter Jay Munro had, by answer, fully cleared himself of any concern with the same, even if the said Peter Allaire had a right to demand an account of it.
    6th. Because, as the said Benjamin Griffen denied any promise to the said Peter Allaire for that purpose, he could not be bound to execute a conveyance to him.
    7th. Because, as the bill was framed, the scope thereof against all the defendants therein, was a specific performance and confirmation of the said Peter Allaire’s title, which the appellants could not give, and he had no right to demand. And the general prayer of relief at the conclusion of the bill, could not operate so as to depart from the general purview of the statement of his case.
    The respondent referred himself to the case made by the appellants, and the pleadings filed in the court of chancery, and humbly insisted, that the orders and directions appealed from, should be affirmed for the following reasons:
    1st. Because the said Benjamin Palmer having, by his said will, given only a naked authority to hit, executors, to sell his real and personal estates, in older to pay all his just debts and funeral expenses, and a legacy to his son Thomas Palmer, and having bequeathed the residue of his estate to the said Mary' Palmer, there was no necessity for the executors to
      sell the real estate at all; provided, the said debts; and legacy were paid.
    ~d. Because Mary Palmer, being the residuary devisee and legatee, could ~e1l her interest under the will, to the said Peter Allaire, or to any other person.
    3d. Because the said Peter Allaire would not be considered as a trustee for the said Mary Palmer, until a sale by him, and the executors of the said real estate, and even then, he might take from her a release of her interest to the property which had, or might come to his hands.
    4th. Because it is not necessary, that the other executors in the will should join in the conveyance with the said Mary Palmer, to the said Peter Allaire, the bill only praying a specific performance of her agreement with the said Peter Allaire.

    5th. Because the said Mary Palmer was guilty of a fraud, in selling her interest in the estate, to Isaac Sniffin, perhaps, too, for a smaller sum, after she had already agreed to sell it to the said Peter Allaire, who had paid her for the same.
    6th. Because it appears that the said Peter Allaire had retained in his hands, monies sufficient to pay the creditors and the legacy of the testator’s son ; and the. decree below might have been so framed, if necessary, as to compel him to satisfy those demands, before the said Mary Palmer had perfected her title.
    7th. Because the consent of the creditors and the testator’s son was not necessary to the sale of Mary Palmer’s interest in the estate, inasmuch as they could not be injured by it, the said debts and legacy remaining a charge upon the land, notwithstanding such alienation by the said Mary Palmer.
    8th. Because the whole residuary estate bcing given to the said ~Mary Palmer, it was unnecessary to make the heir at law a party. If the bill was defective in that respect, it might be cause for a special, not a general demurrer ; besides, the chancellor could, in any subsequent stage of the cause, have ordered the heir at law, if he had judged it necessary, to be brought before the court.
    9th. Because there being a general prayer for relief, any remedy, suited to the respondent’s case, might have been afforded. For instance, the court might have ordered the bond and mortgage, given by Allaire to Mary Palmer, to be delivered up to be cancelled, or it might have ordered the said Peter Jay Munro to join the said Mary in perfecting the respondent’s title, or it might have ordered the deeds to the said Isaac Snijfin and Peter Jay Munro, to be cancelled, and awarded, if necessary, a perpetual injunction to the executors against selling.
    10th. Because, if the said bill does not charge the .said Benjamin Grijfen, Mary Palmer or Isaac Snijfin with receiving any of the testator’s personal estate, such allegation was unnecessary, or if the bill be defective here, it was sufficiently complete in other respects, not to be dismissed on a general demurrer.
   Bensou, J.

This is an appeal from the orders of the court of chancery, overruling the several demurrers of the appellants’ to the respondent’s bill.

The intent of the respondent’s bill in the court of chancery is, that he may have a specific performance of his agreementwiththe appellant Mary Palmer, whereby she bound herself to convey to him, by good, and sufficient conveyances in the law, all her estate, right, title and interest whatever, to the estate of her late husband, and that he may receive a more perfect assurance and conveyance of the said estate.

To that end, the other appellants are also brought into court, either as confederates with her, or as subsequent purchasers from her with notice. Several •questions have been raised and argued by the counsel on both sides. An opinion by the court on each of these questions, would be unnecessary. It is, therefore, to be forborne, it being sufficient for a decision against the respondent, that he had at any time, as a trustee, a' power over the property so agreed to be conveyed^ and whether this property existed in the shape, either of money or of land, makes no difference. The demurrers by the appellants, therefore, were well taken, it being a principle, that a trustee can never he a purchaser ; and, I assume, it as not requiring proof, that this principle must be admitted, not only as established by adjudication, but also as founded in indispensable necessity, to prevent that great inlet of fraud, and those dangerous consequences which would ensue, if trustees might themselves become purchasers, or if they were not, in every respect, kept within compass. Although it may, however, seem hard, that the trustee should be the only person of all mankind who may not purchase; yet, for the very obvious consequences, it is proper the rule should be strictly pursued, and not in the least relaxed, ' Therefore, far from discerning the respondent’s case as an exception, supposing the rule to be only general and not universal, I would remark, that, notwithstanding the averment in the bill, that Mary Palmer fully understood the agreement and conveyance, and, independent of the circumstance that she was not able to read or write, whoever will merely look at the conveyance, which is set forth at large in the bill, will instantly perceive that the parties, or other persons who are named in the bill, as friends or agents in the transaction, did not know what she had by the agreement', agreed to convey; whether an estate in the land, or her eventual interest in the money to arise by the sale of the land ; or in what manner, or to what extent these acts were susceptible of effect, or even whether they were not altogether nugatory. The conduct of the parties, and every other person having any other agency in a bargain so made, without due knowledge or advertisement, is, to say the least of it, indiscreet, irregular, unfit, and certainly to be discountenanced. I am, therefore, satisfied of the justness of this principle, that a court of equity ought never to aid a party to have the bargain enforced or perfected, with intent that any profit or advantage should be taken by it; the interposition of the court, if any, should be only to avoid or relieve -against a loss or damage.

The principle, as quoted from the adjudications, is in terms without qualification or exception. A trustee can never be a purchaser, &c. and without Some explanation, I may, possibly, be considered as understanding it in its apparently absolute sense. I will, therefore, briefly mention, that the cases, where the suit is against the trustee to set aside a purchase, he having procured the requisite formal legal title, are to be distinguished from those where the suit is by him to effectuate a purchase, either by having the thing purchased, decreed to him specifically, or by having the means decreed to him, whereby he may recover at law. That in the latter case, it appears to me, that the rule is to apply as unlimitedly as it is expressed ; but that in the former case, a court of equity will not always interfere, as of course ; for, if the cestui que trusts will agree to allow the purchase, it may be allowed without fear from the precedent ; and that it is not, in every instance, indispensable that all the cestui que trusts should agree to waive the implied fraud ; it may be sufficient for a majority, or such other number or proportion of them to agree, as that, according to the circumstances of the case, it may be presumed there was no fraud in fact. It only remains to be noticed, that if the agreement and conveyance are to be without effect, Mary Palmer ought not to retain the bond and mortgage against the respondent. She is, nevertheless, entitled to hold them, until he shall make her an offer to relinquish the agreement, and to deliver up the conveyance he now holds against her to be cancelled. It is not possible for the respondent to allege an offer to that purpose, and to conform the prayer of his bill and his petition to it, in consequence of any answer which the appellants could be compelled to make to the bill, and it is a rule, that every decree must be according to the form of the petition ; so that, if the respondent is to be relieved against the bond and mortgage, he must proceed de novo, and as he shall be advised.

My opinion, is, that the order appealed from be reversed.

Decree. Whereupon, the court thereupon do order, adjudge and decree, that the orders therein complained of be reversed, and that the demurrers of the appellants to the respondent's bill stand allowed. That the respondent pay to the appellants their costs in respefct to the said appeal; that the respondent’s bill, as to the appellants, Isaac Sniffin and Mary Palmer, the younger, be dismissed with costs; thatthe respondent pay to the appellants, Peter Jay Munro and Benjamin Griffen, their costs in respect of their demurrers*, and that the court of chancery give all necessary directions for carrying this judgment into exetion.

And it is further ordered, that in respect of such matter in the respondent’s bill, to which the appellants, Peter Jay Munro and Benjamin Griffen, have answered, the cause be remitted to the court of chancery, there to be proceeded in, as between the respondent and the said Peter Jay Munro and Benja-Griffcn, as shall be just.

Judgment of reversal.

       20th March, 1796.


author: Per Curiam, by Benson, J.

text:
    (Supreme Court,
    1796.)
    Lewis against Burr.

      The 4th of Ju~ lyis a public holiday, a note or bi1~, therefore falling due on that day, is payable on the third of th~ inonth~

    THIS was an action of assumpsit, determined by the supreme court.

      rI~he suit was by the plaintiff as indorsee, against the defendant as indorsor, of a promissory note, made by Roger Eno~, to him, dated - the first of .Tune, one thousand seven hundred and ninety-five, for three thousand five hundred dollars, payable thirty days after date. Plea. The General Issue,

      The special verdict finding the note and the indorsement of it by the defendant to the plaintiff, and then the following facts, was as follows, “ that on the third day of July, in the year aforesaid, the said three thousand five hundred dollars, in the said note mentioned, or any part thereof, being no ways paid, the said Francis Lewis, by his agent, Solomon M. Cohen, made diligent inquiry and search for the said Roger Enos, in the said city and county of New-York, and especially at his usual place of abode, in the said city, to the intent to request him to pay to the said Francis Lewis, the said three thousand five hundred dollars, in the said note contained, according to the tenor of the same, but the said Roger Enos, was not then to be found, being absent from the said city and county, in parts to the jurors unknown ; that the said Roger Enos, continued absent from the said city and county, thenceforth, until after the fourth day of July, in the year aforesaid ; that the said Francis Lewis, not finding the said Roger Enos, to make the said request, did, on the said third day of July, in the year aforesaid, by his agent aforesaid, deliver to the said Aaron Burr, a paper writing, subscribed i with the proper hand-writing of his said agent, in the words and figures, following, to wit:
    “ JYew'-York, lid July, 1795.
    <e SIR—As general Enos, is not in town, and his note with your indorsement for 3,500 dollars, is payable to-morrow, the 4th inst. the holder desired me to give you this notice, that he looks to you for payment of the same ; and I undertake this to prevent a protest; general Enos is expected daily when he will have cash sufficient to discharge the same, as I am credibly informed; I hope my conduct in this business, will meet with your approbation; which will be very pleasing to
    Sir,
    your most obedient servant,
    Solomon Myers Cohen-”
    And the jurors aforesaid upon their oath aforesaid, further say, that the 4th day of July in each year is the anniversary day of the declaration of the independence of these United States of America, and for that reason is in practice, though not by law, generally observed by the citizens of this state of New-York, as a public festival; and, also, that some time in the month of May, in the year of our lord 1784, upon the institution of the bank of New-York, which does no business on any 4th day of July, it became and since continually has been, and still is a general practice and usage in the said city of New-York, for the holder of a promissory note made by one person and indorsed by another, if the same become payable, allowing three days of grace, on the 4th day of July, in any year, to demand payment from the maker of such note, of the sum therein mentioned, on the 3d day of the same July, and if he refuse to pay the same, or if he cannot be found, to the end that payment may be demanded of him, and if the said holder shall be minded to look to the said indorsor for payment of the said note ; then, forthwith, that is to say, on the same Sd.day of July, to give notice to the said indorsor, of such refusal to pay the. sum mentioned, in the said note, or that the maker thereof cannot be found, to the end that payment may be demanded of him, and also, that it is the intention of the said holder to look to the said in-

      dorsor for the payment of the said sum. But whether, &.c.
   Per Curiam, by Benson, J.

By our statute of the 27th March, 1794, “ promissory notes are made assignable and indomable over; and an action may be maintained on them, as in cases of inland bills of exchange.”

The reference to bills of exchange is contained in the English statute of the 3d and 4th Anne; .but having been omitted in the colonial statute of 1773, it was also omitted in the statute of 1788, in our revised code; the omission, therefore, in the statute of 1788, can be accounted for. But whether it was in the first instance designed or accidental in the statute of 1773, cannot be ascertained. It, however, occasioned the statute of 1794, which, it is known, was intended, and has been received and practised on in the community, as a provision, in addition or amendment of the statute of 1788, to give days of grace to promissory notes; hence it is, that they are now considered as entitled to this incident, by law. The law, however, does not create the incident; it existed before, as appertaining to bills of exchange, and the law can only be adjudged as constructively contending it to promissory notes, it however existed by force of custom only; to know, therefore, what the incident is, we still resort to custom.

Days of grace, as a general incident to bills of exchange, are by almost universal custom; the number of days being different in different places, according to their respective laws or customs. In England the number is three, and wholly by custom.

There, also, if the last of the three days happens to be a day on which either "the law or custom hath established “ that no money is to be paid,” then the number is to be restricted to two. . This is also not only wholly by custom, but is repugnant to the analogy of a rule of municipal law, by which, if an act is to be done on a day which happens to be a Sunday, or any other day on which it could not be done, without transgressing the law, that then, instead of the day before, it must be done on the day after; so that the regulation of restricting the period of respite in favour of the creditor, preferably to enlarging it in favour of the debtor, if it had been questioned in its commencement, I should conceive, ought to have been arrested by the courts of justice, not as inconvenient or injurious in itself, but as repugnant to the rule of law in analogous cases ; it having, however, been sanctioned by custom, it was, therefore, judicially “approved;” consuetuclo altera lex.

I assume it, that the custom, as it existed in England at the time @f our revolution, was deemed, in fact, to be the custom among us, and entitled to prevail. In addition to the custom, as it then existed, the special verdict finds a continued custom from the month of May, 1784, hitherto for another day, besides Sunday, &c. when the restriction of the number of days of grace is to take place, namely, the anniversary of our independence. The question, therefore, between the parties is, whether the custom is not, in this particular, also equally entitled to prevail ? with respect to which, I would briefly state that, whenever a practice, usage or custom hath obtained, for a length óf time, so as that it may be presumed to be generally known ; that then, all contracts to which it may be applicable, shall be interpreted and governed by it. This principle is not new; we practise on it daily. Where the contract is not special or explicit, so as to exclude construction, the inquiry always is, what is usual ? Lest I may be misunderstood, I would mention, that I mean such practices,' usages, or customs only, as may consist with law; that I decide only on their force or audio- ■ rity, admitting the object of them to be lawful.

I am of opinion, that the note in question is to be adjudged as having fallen due on the 3d day of July, the second day of grace, and, consequently, that the plaintiff is entitled to recover.