author: LIVINGSTON, J. KENT, Ch. J. TompkiNS, J. SPENCER, J. THOMPSON, J.

text:
    Schuyler against Van Der Veer.
    If an award state that which is to he done by the plaintiff so uncertainly that the defendant cannot compel performance, it is fatal on demurrer, though the plaintiff in his replication show a breach in a part that is certain and good.
    This was an action on an arbitration bond, the declaration in the common form.
    The defendant demanded oyer of the condition, which was set out in the following words : “ The condition of this obligation is such, that if the above bounden, John Van Der Veer, his, &c., do well and truly pay to the above named John Schuyler, his, &c., the full sum of one hundred pounds, of good, &c. on the 10th day of December next, if the said John Van Der Veer does not abide by the award of , arbitrators indifferently chosen to settle all matters of controversy, then this obligation to be void,” &c.
    To this the defendant pleaded no award.
    The plaintiff replied showing an award, that all controversies .touching the premises, in the submission mentioned, should cease; that the said John Schuyler and John Vap Der Veer should finish the house between them, and be" so far complete as to board it over the roof, and the floor all complete, and a chimney, and if the *said John Yan Her Yeer should keep tbe stove, then be should pay John Schuyler fifty shillings for it; that Yan l)er Yeer should pay Schuyler eleven pounds ten shillings; that the costs of the arbitration should be jointly borne, and the parties pass receipts to each’ other from the beginning of the world. The replication then stated a breach in not paying the eleven pounds ten shillings. To this the defendant demurred, and showed for causes that the plaintiff had not alleged performance of what he by the award ought to have done; that the award was uncertain and inconclusive, in not specifying what house Schuyler and Yon Der Yeer were to finish, nor the materials with which, nor the person for whose benefit it was to be finished; and also in not making it appear for keeping what stove Van Der Yeer was to pay, and in not ascertaining the proportion of costs each one was to pay, and to whom. Lastly, that personal services were awarded. On this demurrer, in which the plaintiff joined, the cause now came before the court.
    Hildreth, for the plaintiff.
    The ancient authorities obliged the plaintiff to show, after having set forth the award, performance on his part of those acts which, by the award, he was ordered to do, except when those things to be done by the defendant formed a condition precedent. Modern adjudications have narrowed these decisions, and reduced their applicability to two cases ; 1st. Where the acts to be donefoy the plaintiff are so doubtfully set down, that their performance cannot be compelled, and the whole award would be void for want of mutuality ; 2d. Where, by the terms of the award, the acts which he is to perform make a condition precedent. Here nothing appears to be awarded the defendant which he can claim to his use, therefore no acts to be done by the the plaintiff which can form a condition precedent. If it is urged that there is then a want of mutuality, it is sufficient to say releases are awarded, and that bas always been beld to be a mutual benefit. Harris v. Knipe, 1 Lev. 58. But allowing many of the objections to. bold, the award is good in that part which orders the payment of eleven pounds ten shillings. It is there the breach is laid, and. whatever may be the fate of the other parts, this, showing a good cause of action, is conclusive for the plaintiff. In Fox v. Smith, 2 Wils..26.8, the pleadings were similar, to the present, case, and it was ruled, that as the breach was well assigned in that part of the award which directed the payment of sixteen pounds ten shillings, '^and that breach stood confessed by the defendant’s demurrer, the plaintiff was entitled to. judgment. The reason is obvious ; any one breach is a forfeiture, and a recovery for that, is a bar to any future action on the same- bond. So in Addison v. Gray, 2 Wils. 293, among a variety of acts to be done, general releases and payment of a specific sum were ordered ; the breach was laid in not paying- .the money, and it was, without hesitation, determined the action was well brought.

      Cady, contra.
    The condition of the bond is in the alv ternative, either to pay -one hundred pounds, or abide by the award. The non-performance, therefore, of the award, is not a forfeiture of the bond, for the defendant might, have paid the one hundred pounds to exempt himself from its performance. The plaintiff, therefore, by the mere allega® tion of a breach, does not show any cause of action. 4 •Bac. Abr. (old ed.) 135. The court cannot presume the one hundred pounds -were ■ not paid'. The uncertainty of the award is manifest; and it may be doubted how far any averment could have reduced to a sufficient certainty the vague expressions of “ the house” and “ the stove.” If intended for the benefit of the defendant, as perhaps the payment ordered, of the eleven pounds ten shillings, may suggest, yet if it be so uncertainly set forth that he could not compel performance, and performance is not averred, the award is bad in toto. Kyd, 169, 170, 173, 174.

      JSmott, in reply.
    The one hundred .pounds mentioned in the condition of the bond are nothing more than a super-added penalty. It was unnecessary, therefore, to allege the non-payment. Had it been paid, it ought to have been shown by the defendant, as it would have constituted a defence to the action. As nul agard is pleaded, it may be a question whether the payment of the one hundred pounds could be urged. By such a plea, the defendant admits that if there be an award, and a breach shown, he is liable to the penalty of the bond. To render an award void for uncertainty, it must be such an uncertainty as is so to the parties. “ The house ” and “ the stove ” were known to them,-and might have been identified by aver-ments. In Styles v. Triste, "(1 Sid. 54,) an award that one should keep and enjoy “ the goods,” paying so much money,, was held to be a valid award. So, where a certain sum was directed to be paid towards reparation of the house, without saying what house. J&opper v. ITacJcer, 1 Keb. 738. It must be intended the house and the stove in the pleadings were *those in dispute; and if the award be final, then it is mutual within the meaning of the law.
   LIVINGSTON, J.

The defendant has assigned the following causes of demurrer:

1. That the plaintiff has not alleged his doing those things which, by the award, were to be done and performed by him.

2. Because it does not appear by what authority the award was made.

3. Because the award is uncertain, and inconclusive in its not appearing therefrom “ioho.t house” the parties were to finish between them, or with what materials, or for whose benefit it was to be finished; or for “what stove” the plaintiff was to receive fifty shillings, or what costs the parties were to pay, or what proportion each was to pay, or to whom they were to be paid.

4. Because- that part of tbe award which relates to finishing the house, is an award of personal service.

I shall consider only the third objection, for that being, in. my opinion, fatal, renders it unnecessary to examine either of the others.

Tbe intention of all parties to an arbitration, is to have their controversies finally settled, and something ascertained which was before doubtful. Hence, it is a rule that awards shall be so plainly expressed, as that there may remain no uncertainty as to the manner in which they are to be executed. Bach party should not only know what be is to do, but should also be able to compel the other to perform what he is ordered to do. This cannot be the case unless the arbitrators make use of language which is intelligible as well to the parties themselves as to those who may be called on to enforce their decisions. Although courts have departed from the strictness with which awards were formerly examined, and which was a reflection on the administration of justice, yet they have not carried-their indulgence so far as to dispense with their being certain, at least to a common intent. Without adhering to this rule, an award might be so obscure as that neither party would know what he had to do; in such a case, if it were, nevertheless, binding and final, great injustice would be done; for there could be no recourse on the bond for not performing the award, and yet the remedy on the original ground of controversy would be gone. To take the present case out of this rule, it is said, that if the award be good in that part whereof the breach is assigned, it is sufficient, and the .plaintiff must *have judgment, according to the decision in Fox v. Smith and Addison v. Gray, 2 Wils. 267, 293. But there is a manifest difference between those cases and the one before us. By those awards, except as to an exchange of releases, there was nothing to be done but by one of tne parties. The defendant, in each of those suits, was to pay the plaintiff a sum certain, and also some costs, without mentioning how much. The court lield, that as the awards were certain as to the specific sums directed to be paid, it was no reason why the plaintiff should not have the benefit of them so far, especially as they thereby waived their right ever to recover the costs, which was an advantage to the defendants. This rule, however, cannot apply where distinct things are tobe done by the different parties; for, in such cases, what is to be done by the respective parties must be set forth with equal certainty; otherwise the one may enforce that part of the award which is in his behalf, while the other can have no relief for such parts as are intended to be in his favor, because of the ambiguity of the language made use of. Such is the nature of this award. The sum to be paid to the plaintiff, and for non-payment of which this action is brought, is sufficiently certain; but it is unreasonable he should receive this money, unless he performs, or can be compelled to perform, those things which he is directed to do, and which must have formed part of the consideration for giving him this sum. In other word's, if the defendant can have no remedy against the plaintiff for what he is to perform, on account of the uncertainty in the meaning of the arbitrators, the whole award, however explicit as to what he is to' do, must be nugatory. It remains to be examined whether that be the case here. The parties are enjoined to finish “ the house ” between them. Here is something to be done by the plaintiff, (and most probably for the defendant’s benefit,) for the omission of which he ought to be liable, and yet it is very problematical whether he might not shelter himself under the uncertainty of the direction. What house was to be finished? Where did it stand? What were its dimensions? What materials were to be used ? When was it to be completed ? Or for whom ? Nor can the uncertainty of the award in this respect be helped or removed, either by reference to the submission, or by the context of the award, or by anything connected with it. Nor does it fall witbin those cases where .ayérmente of the party may render certain that which is not sufficiently defined by the arbitrators themselves. An averment is sometimes ^admitted to support an award, which-has an appearance of being uncertain, but when there is no means of ascertaining what is thus doubtful, but by travelling out of the instrument altogether, and relying entirely upon parol testimony to show the intention of .the arbitrators, the experiment is dangerous and ought not to be made.

The same uncertainty prevails as to “ the stove ” which the defendant was to keep at the price of fifty shillings. As the house, it is called Kat' exochen," the stove.” There might be several stoves in his possession. . What entitled it, therefore, to this honorable distinction, or whether it would in that way be known, even to the p&rties themselves, ddes not appear. But, as has been already said, it is not sufficient that the parties understand the arbitrators; their language should be intelligible also to those to whom application may be made to give effect to their decisions.

Equally uncertain is the award as to the costs to be paid. To pay the charges accrued in a particular suit, without mentioning the sum, is good, because they may be taxed by the proper officers; but here no suit is mentioned, nor does any appear to have been pending; and if they were, the costs or expenses of the arbitration, (which does not appear to have been made a rule of any court,) I do not perceive how they were to be ascertained.

Upon the whole, there is so much uncertainty in everything which the plaintiff is ordered to do by this award, that I think it but common justice to the defendant to consider the whole as void. My opinion, of course, is that he have judgment,

KENT, Ch. J.

I am of opinion the whole award is void for uncertainty. It ought to appear from the context of the award, or from the nature of tbe thing awarded, or by a manifest reference to something connected with it, what things the parties are ordered to do. Kyd, 129,134. Here is nothing to which-this award can be referred for explanation; and it does not appear from the award itself what house, or stove, or costs are alluded to. It speaks only of the house, the stove, and the costs, without adding one word by way of reference or explanation. An award may be good in part and bad in part, provided the latter be independent of, and unconnected with, the former. "Willes, 6-6. But that does not seem to be the case here. The payment of eleven pounds ten shillings is connected with the costs, and the passing of receipts *must have reference to some controversy about the house. It is, upon the whole, too vague, or rather senseless a paper to be the basis of an action. Nor is there equal justice by sustaining the suit; for the mutual obligation about finishing the house, must be intended for the benefit of the defendant as well as of the plaintiff; and if, owing to the absolute uncertainty of that part of the award, he can have no remedy to coerce the plaintiff to perform any part beneficial to the defendant, he ought not to be bound to pay the eleven pounds ten shillings to the plaintiff. We are to presume the payment was to be in consideration of the efficacy of the preceding part which was favorable to the defendant.

I am therefore of opinion that judgment be for the defendant.

TompkiNS, J.

I concur in the opinions delivered.

SPENCER, J.

Several objections have been taken to the sward and replication.

1. That the condition of the bond is in the alternative, if the defendant pays 100Z. if he does not abide by the award, then the bond to be void, and that the plaintiff should have averred the non-payment of the 100Z.

This bond is inartificially drawn. The 1001. mentioned in the condition, can be regarded in no other light than a superadded penalty, not recoverable in the non-payment of the eleven pounds ten shillings. When, therefore, the plaintiff alleges the non-payment of the eleven pounds ten shillings, he alleges a substantial breach in the award. I reject the mention of the 100Z. as wholly superfluous. It is not an alternative imposed by the arbitrators.

2. That the plaintiff has not averred the performance of those parts of the award to be performed by him, and for the benefit of the defendant.

The payment of the eleven pounds ten shillings does not depend on any condition precedent; it is an independent and substantive part of the award. It is said that the finishing of the house was for the benefit of the defendant; but this does not appear from the award; nor does it appear on what account the eleven pounds ten shillings were to be paid.

3. That all matters are not decided on by the arbitrators.

This is not requisite. An award may be good in part and void in part. This award requires that receipts should be passed between the parties from the begining of the world to the day of the award; it also awards that all controversies *shall cease. There are some parts of the award faulty, particularly as to the costs. But courts of law have regarded awards with so favorable an eye, as not to suffer the good parts of them to be injured by the bad. In my opinion judgment ought to be rendered for the plaintiff.

THOMPSON, J.

The objections taken by the defendant’s counsel to the plaintiff’s right of recovery in this case, may be considered, first, as against the replication; and secoudly, as against the award of the arbitrators. The ex* ceptions .to the Veplication are, that the plaintiff should have averred performance on his part, and also should have alleged that the defendant had not paid the 100Z. mentioned in the condition of the bond, nor performed the award, considering the condition of. the bond in the alternative’ The cases which require an averment of performance on the part of the plaintiff are, where what is awarded to be done by him is void, and where his performance is a condition precedent. Kyd. 197. Where the award is void on his part, he should suggest performance to remove all objections on the part of the defendant on the ground of want of mutuality. ■ Where performance on the part of the plaintiff is a condition precedent, it falls within the general rule, that where a plaintiff’s right or interest commences upon condition or act to be done by him, he must aver and show performance on his part to entitle him to recover. 5 Bac. Abr. 337. Neither of these rules, however, can be applied to this case. Eor performance on the part of the plaintiff is not a condition precedent, nor is the award wholly void as to the acts to be done by him. This exception must therefore fail: nor do I think the other objection to the replication well taken. The .condition of the bond is inartificially worded. But the obvious intention of it was to abide the award, and not for the payment of the 100Z. in any event. Admitting it, however, to be in the alternative, either to pay the 100Z. or perform the award; it was so at the election of the defendant. If he had made his election and had paid the 100Z. he ought to have pleaded it, which would have been a good answer to the present action. Kyd. 204. The rule that where an award is in the alternative, the plaintiff in assigning the breach must allege that the defendant has neither done the one nor the other, cannot apply. The award is not of that description. The alternative, if any, is in the condition of the bond.

The exceptions taken to tbe award 'are, that it is not mutual; that it is not pursuant to the submission; does not embrace *all matters in controversy, and is uncertain. The award that the parties shall pass receipts to each other from the beginning of the world to the date of the award, is equivalent to an award of a final settlement; and that the parties should execute tc each other general releases, which has been uniformly held sufficient to render an award mutual. Kyd, 148, 149. I do not see in what respect the award is not pursuant to the submission. The submission is a general one of all matters of controversy. 2D. & E. 647. These words are sufficiently broad to embrace every subject of dispute between the parties, and the award purports to be a final settlement of all differences. Although the submission contains no power of awarding respecting costs, yet that is held to be a power- necessarily incident to the authority of the arbitrators. Kyd, 100. The uncertainty in the award, however, as to the costs, and as to the house to be finished by the parties, and the stove, which the defendant had a right to elect to keep, cannot affect the plaintiff’s right qf recovery. No breach is alleged in these respeets ; nor does it appear for whose benefit those things were to be done. Besides, I am not satisfied that all these uncertainties might not be supplied by proper averments. But admitting the award to be bad in these particulars, an award may be good in part although bad in part. The only breach assigned is the non-payment of the eleven pounds ten shillings, which is a distinct and independent matter. In this the award is sufficiently certain and good. 1 think the case of Fox v. Smith very analogous to this. 2 Wils. 267. The chief justice there says, if the award b a good in the part whereof the breach is assigned, (the defendant having admitted the breach by his demurrer,) the plaintiff must have judgment, and in this tha whole court concurred.

I am therefore of opinion that none of the exceptions are well taken, and that tbe plaintiff should have judgment.

Judgment for the defendant.

         An award directing “ good and sufficient security for the payment ol money,” in two instalments, is void for uncertainty in not stating the nature of tlie security, whether it was to consist of real or personal security, £r to wliat extent. Jackson v. De Long, 9 Johns. Rep. 43.


source: Caselaw Access Project

author: 1'er Curiam.

license: Public Domain

text:
    Devoe against Elliot.

      A. sheriff cannot levy .on goods by virtue pf a fi. fa-, after the return day is past.
    This was an action against the defendant to recover the ' value of a mare, sold by him to the plaintiff.
    The facts were, that on the 17th of June, 1800, a wri$ of fieri facias was delivered to the sheriff of Montgomery, against the goods, &c. of Avery Herrick, returnable on thg third Tuesday, in July then next. On the tenth of November ^following, Herrick bought the mare in question, and sold her to the defendant, of whom she was purchased by the plaintiff. A few days after this, the sheriff levied on the mare in the plaintiff hands, and sold her by virtue of the writ, then remaining unsatisfied.
    The only question for the court was, whether a sheriff by virtue of & fieri facias, put into his hands before the fe-turn day, can legally sell goods which the part}*-, agaiqSt whose property the writ issues, may acquire, subsequent to the return ?

      OacLy, for the plaintiff.
    There is no cas'e exactly in point; we contend, however, that till the debt is satisfied the writ will affect property coming to the hands of the person against whom sued out; otherwise the officer who begins an execution will not always be enabled to finish it. Yet this is what he is directed to do. 2 Bac. Abr. tit. Execu. 366. In the case of a levari facias,- against the kmiis of ecclesiastics, we find the writ is operative after the return. 2 H. Black. 582. In principle there is no difference between the two executions b j fieri facias, and that by a levari Was it otherwise than as we insist, a subsequent execution might be satisfied, while the first lay in the sheriff’s hands totally unproductive.
    Hildreth, contra.
    After the return day, the writ is dead in law. Its legal force is totally exhausted, and it warrants no kind of proceeding. 1 Salk. 321. 1 Vent. 30. Yelv. 157. Hob. 72. Tidd’s Practice, 385, tit. Execution.

         Marsh v. Fawcett. The reason the execution de bonis ecclesiastida allows of levying rents and profits after the return day is, that it is a continuing execution, raising the debt out of the profits, on which the bishop is ruled from time to time to return the sum levied, for after the writ is actually returned, the authority of the bishop is at an end. Por the form of the writ see Rcgistr. 300. Tt issues after a common writ of execution sued out, and a return by the sheriff that the defendant is clericus beneficiatus, mllumhabens laicwm fuidum, and is in the nature of a leva? i facias, but goes to the bishop of the diocese. 2 Inst. 4.

   1'er Curiam.

The only question arising in this case is, whether a sheriff' can, by virtue of a fieri facias, duly delivered to him before the return day, legally levy on, and sell, goods and chattels acquired by the defendant after the return day in the execution? We think he cannot. We take it to be a general principle that all process must be served before the return day. The utmost length the law allows for executing a writ is the day whereon it is returnable. When a sheriff has levied an execution in due time, he may complete the same by sale after the return day, but should he omit levying until that day was passed, the execution is dead. If these positions be correct, we cannot see how goods purchased by a defendant, after the return day in an execution is passed, can be taken and sold under such process. The only mode, we conceive, of getting at such property is, by procuring a return of tbe execution and issuing an alias. A contrary practice would be mis* ehievous and a fraud upon other creditors.

*The opinion of the court, therefore, is, that judgment of nonsuit be entered pursuant to the stipulation in the case.

Judgment of nonsuit

         His authority expires with the writ. If he levy after the return day by order of the plaintiff, they are both trespassers. Vail v. Lewis & Livingston, 4 Johns. Rep. 450.


author: Per Curiam.

text:
    Clinton against Croswell
    Id an action for a libel, the court will not, on the common affidavit, change the venue from the county in which circulated to that in which printed and first published.
    This was an action for publishing a libel.

      Hopkins, on the common affidavit,
    moved to change the venue from the city and county of New York to the county of Greene.

      Hiker, contra,
    read an affidavit by the plaintiff stating that he resides in New York, and that the suit was brought for the publication of a libel in a newspaper, published in the county of Greene, by the defendant, and which he saw exposed to the view of many persons in this city, and that the plaintiff verily believed the defendant was the editor or printer of said paper. On these facts it was insisted, that the affidavit of the cause of action arising wholly in the county of Greene was not correct, because wherever the paper circulated a right of action accrued. It was contended to be of more importance to an individual to protect his character against libels disseminated in the place of his residence, than in a remote part where he might be scarcely known. Therefore, in Pinkney v. Gollins, 1D&E, 571, the court refused to change the venue from the place where the libel was circulated to that where printed.
   Per Curiam.

There is no ground for the application. The defendant can take nothing by his motion, and must pay costs to the plaintiff.

Motion denied.

       Change of venue in an action for libel dispersed in different counties will bo denied, unless there is a decided preponderance of witnesses, &c. Root v. King, 4 Cow. 403; see Nicholson v. Northrop, 3 J. R. 189.


text:
    Candee against Goodspeed.
    If a non-resident plaintiff sue by warrant before a justice, and will not consent to an adjournment for more than three days, in no case can the justice adjourn over that. time.
    In Error, on certiorari, from a justice’s court.
    The plaintiff was a non-resident, and the suit commenced by warrant.
    The defendant, on account of the inevitable absence Of a- material witness, and after dud diligence used to procuro him, requested an adjournment for more than three days, offering the same security as is required by the 8th section of the ten pound act. The plaintiff refusing to consent tp the delay, the ^justice, of his own authority, adjourned over. This was alleged for error.
   Per Curiam.

The seventh section is too positive and peremptory to be got over. The justice had not any power to adjourn beyond the three days.

Judgment reversed.


text:
    Anonymous.
    Being a public officer affords no excuse for not going to trial, nor does his cause acquire any preference.
   It was ruled that the causes in which public officers, such, as the attorney-general, district attorney, and the like, are concerned, have no preference at the sittings or circuits; nor will such circumstance afford an excuse for not going to trial according to notice, or a reason to refuse judgment of nonsuit;, it being the duty of public officers to provide other counsel when they cannot themselves attend; and if they do not, it is at their peril.


author: LIVINGSTON, J.

text:
    Livingston against Hastie and Patrick. The Same against Tyrie.
    A judgment recovered by the United States is a good consideration for a note to the district attorney, and not inquirable into in an action upon it by him, though satisfaction be not entered upon the judgment A note given in the name of a firm for a private debt of one partner is void in the hands of the creditor, as against the firm, if given without the consent of the partnership, and even as against a friendly endorser, endorsing at tba request of one of the firm, and not knowing the note was not given for a partnership debt
    These were two actions brought by the endorsee of the same promissory note. The first was against Hastie & Patrick as makers; the second against Tyrie as endorser. The facts in each were these: Hastie had become bail in a suit by the United States, in the district court, and judgment had been obtained against him on bis recognizance. Being unable to pay it, the plaintiff (wbo was district attorney for tbe United States) agreed to take bis own note witb an endorser. Hastie on this, without the knowledge and consent of his partner, drew the note, on which the present actions were founded, in the name of the firm, and prevailed on Tyrie to lend his endorsement. The note thus drawn and endorsed was given by Hastie to the plaintiff, but satisfaction was never entered-on the judgment. A verdict for the plaintiff having been taken by consent, in both suits, subject to the opinion of the court, the cases now came up and were argued together.

      Robinson, for the plaintiff.
    The consideration for the note cannot be questioned. There was a bona fide, valid existing debt. That satisfaction was not entered is immaterial, as the note was only a collateral security, and in such cases the judgment *is always kept on foot till, payment of the note. But allowing the debt due on the judgment not to be a sufficient consideration, there was a still further one; forbearance of execution. This being so, there was a legal basis for the contract, to the discharge of which one partner had a right to bind the other. That the act of one of a firm is obligatory on all, is a settled principle. But, however the case may be with respect to the suit against the makers, no objection to a recovery can be made in that against the endorser, for be can never enter into an investigation of the bill.

      Rarison and Caines, contra.
    The plaintiff as a public officer could not take the note for a debt due the Hnited States: and as he knew the consideration on which it was given, it is open to inquiry even by the endorser. But there was no consideration, as the forbearance relied on might .have been instantly superseded by an order from the United States to proceed. It is true one partner can bind the other,-but that is only in relation to partnership transactions. He cannot for a debt due in his private capacity give a note in the name of the firm. Bhirreff & another v WiVcs, 1 East, 48. The same principle applies to both cases.

      Sobinson, in reply.
    The authority cited went on the fraud that was practised, and so do all the eases to the point relied on.
   LIVINGSTON, J.

delivered the opinion of the court. The first question made in this cause regards the consideration of the note, and the other the liability of Patrick, the instrument having been made for the private debt of Hastie, and delivered to the plaintiff, who knew it was not given on a partnership account.

Whether the mere want of consideration, even between the original parties, can be alleged against a promissory note, or a bill of exchange, may well be doubted. It is not necessary, as in other simple contracts, to state a consideration in the declaration; the instrument itself imports ,one, and in this respect partakes of the quality of a speci-ality. Nor is the plaintiff bound to prove his giving any value for such paper, unless when he sues as bearer of a bill, transferrable by delivery, and that under suspicious circumstances. Grant v. Vaughan, 3 Burr. 1516. No case can be found where the want of consideration alone has been admitted as a good defence. As against the payee, the maker, it is true, has been permitted to show, not a want, but a failure of consideration, and in all cases he may insist on the illegality of it. Chitty, in his treatise on bills, *says, that the want of consideration may be relied on, but not one of the decisions which he cites will bear him out. In Jefferies v. Austin, the defendant was only permitted to show the note was delivered in the nature of an escrow, and it appearing that the condition on which it was to take effect had not been per formed, a verdict was found for him. Str. 674. Here the consideration, which had induced the defendant to make the note, failed, but if he had given it to the plaintiff, vo-lantarily, as a gift, and without receiving any value, this would hardly have been a good defence. So in Puget de Bras v. Forbes and Gregory, Esp. Rep. 117. Lord Lough-borough allowed the defendants, in a suit by the payee of a bill of exchange, to show that it had been drawn before they had received any value from the persons on whose account it was drawn, who had since become insolvent, and that this was known to the payee at the time he took the bill, as the general and established custom of merchants, in regard to bills of this description. This decision in like manner, proceeds on the principle, that the inducement for drawing the bill being known to both parties, to wit, an expectation of funds from the principal, and that failing, if was unjust to exact payment of the defendant. The other case from Espinasse, only settles that the endorsee of an accommodation bill, who takes it knowing it to be such, can recover from the drawer no more than he has advanced on it. Wiffen v. Roberts, 1 Esp. Rep. 261. Nor does what Lord Mansfield says, in Lickbarrow v. Mason, prove anything more than that between the drawer and payee of a bill of exchange, the consideration may be inquired into- to prevent either of the parties committing a fraud. This is not denied, and means nothing more than that the drawer will be allowed against the payee, and the endorser, against his immediate endorsee, to show what was its real consideration, on which the court will decide whether there ought to be a recovery or not. But it is not necessary, at present, to decide how far a total want of consideration will form a defence, because here there was a valuable one, and there is no pretence, on that ground, to avoid the note. Against Hastie a judgment had been recovered, in the district court of the United States for the New York district. For the amount of this judgment, the present note was taken, payable in four months. As a prudent man, Hastie no doubt took a receipt from the district attorney, wbo must have been the attorney on record in the suit in which this judgment had been rendered, ^expressing the purpose for which the note was taken, and, therefore, although the judgment was not cancelled, it would be satisfied by actual payment of the note, for which it was given as a collateral security, and so would the latter be discharged by paying the judgment. This is a common practice, nor are wc bound to presume that the district attorney exceeded his powers, in consenting to a suspension of the execution, on receiving additional security. He probably acted in conformity to his instructions from government, but, at any rate, we are not to conjecture, as it is not in the case, that he acted without instructions, or in violation of them.

On the other point, which respects the liability of Patrick, there can be no difficulty. It is certain, that’ the power of one partner to bind the other is very great, and for the purpose o.f trade it should be so. When there is a known partnership, it is right that any one dealing with either of the partneii.', as such, should have recourse to all of them for his contracts, and if he abuse the confidence which his associates repose in him, strangers should not suffer. But it is not necessary for trade that this authority over each other should extend to matters totally unconnected with the objects of their association, and which it is impossible any articles ol partnership could have contemplated. Were that the case, it would put an end to those connexions altogether. Ii can never be the intention of those who form companion of this nature, nor can it be the expectation of the world, that every partner is to pledge the general responsibility for his private debts, contracted before or after the partner/hip. When any one, therefore, takes a partnership note, from one of the company, for what he knows to be his ¡.articular debt, without consulting or apprizing the other members of his intention, or obtaining their consent, there is no hardship in confining his remedy to ibe one whose debt it was. Tbis rule we adopt as one that will produce the least mischief, will prevent an improper-use of the partnership firm, will confine persons,thus associated, within proper bounds, and will destroy every inducement in' strangers to obtain, by practice or fraud, a security against the whole company for the individual debt of any member. The plaintiff herd knew the note was'given for Hastie’s own debt, and it does not appear that Patrick consented to his name being used; the defendants, therefore, must have judgment.

In 1 Bast, 48, is a case decided ón the same principles. *Two partners, prior to their connexion with another person, had contracted a debt, for which they afterwards accepted, in the name of the new firm, a bill, drawn by their creditor, who commenced a suit on it. The court were unanimous that the new partner was not liable on this bill.

There is also a case, decided by Lord Kenyon, at nisi prius, of Arden v. Sharpe and Gilson, (2 Esp. Rep. 524,) not very unlike this. Only the party who took the bill,' endorsed by Sharpe and Gilson, was informed by Gilson, one of the partners, that the transaction was to be concealed from the other. ' The ground, however, on which his lordship decided, is the same which has been here taken. “The transaction,” he said, “indicated that the money was for Gilson’s own use, and not raised' on the partnership account.”

We think even in the second suit the plaintiff ought not to recover. The defendant endorsed the note of' Hastie and Patrick, as their surety, believing it to be good against both, but in the preceding case, we have determined it not to be binding on the latter, and as the plaintiff, who was this defendant’s immediate endorsée, knew on what account it was made, and must, therefore, be presumed to have known that it was good against Hastie alone, bis action against the endorsor cannot be sustained. If the plaintiff should have judgment in this second suit, the defendant, who is an innocent payee of the note, and was unacquainted with the circumstances under which it was issued would, in another action, be enabled to recover from the makers, and in this way the judgment just rendered would be defeated. For, although the party, who receives from one partner a note of the company, for his separate debt, cannot, according to this decision, maintain a suit against the other partners, it will not follow that a holder of the note, unap-prized of this circumstance, will labor under the same disability. As well, then, to prevent this consequence, as be; cause the note, is not such a one as the party supposed he was endorsing, the defendant must have judgmenta

Judgment in each suit for the defendant.

         It has long been settled that between immediate parties to a note a consideration is necessary; of this the note is prima facie, but not conclusive evidence, though it turns the proof on the defendant to show there was none. Brown v. Marsh, Gilb. Rep. 154; Jerome v. Whitney, 1 Johns. Rep. 323. The whole of the reasoning of the learned judge, on this point, is extrajudicial, and, I say it with regret, is of no authority; nay, authority is againsi it. Pearson v. Pearson, 7 Johns. Rep. 26.

       The partnership not being liable. Lansing v. Gaine & Ten Eyck, 2 Johns. Rep. 300; Livingston v. Roosevelt, 4 Johns. Rep. 251.

       All the partners of a firm are bound by a note made by one of the partners in the name of the firm for his individual benefit, even though it be fraudulently put in circulation as it respects himself; if the note before maturity comes into the hands of a bona fide holder. Wells v. Evans, 20 Wend. 251; Catskill Bank v. Stall, 15 Wend. 364; S. C. 18 Wend. 466, 17 Wend. 524, 22 Wend. 183, 3 Hill, 262; see cases 6 Hill, 114, 17 Wend. 524, 22 Wend. 183, 14 Wend. 146, 14 Wend. 133, 5 Wend. 475, 11 Wend. 75, e Cow. 497, 4 Cow. 282, 11 J. R. 544.


text:
    Wilcox against Woodhall.
    Stipulation by a counsel in the cause good.
    The court determined- that a stipulation, (see vol. 1, p. 7, n.(a) in a suit by a counsel, in the cause, was as good and effectual as by the attorney on record.


text:
    *Waddington against Chamberlain and Clason.
    The court will renew a rule for an attachment if it has not been forwarded by the clerk in time to be duly served.
   Last term tbe court bad, in this suit, granted a rule tc sbow cause why an attachment should not issue against A. B., but from some accident in the clerk’s office, in Albany, the rule had nc>t been forwarded, so as to admit of serving a copy twenty days before the term.

Biggs, on these facts, moved to renew the rule for the attachment, which was

Ordered accordingly'.


text:
    Day against Wilber.
    Vacating rules. See Hildreth v. Harvey, 2 Johns. Cas. 221.
   The court, consisting of only Livingston and Tompkins, Justices, said, very slight grounds would be sufficient to induce them to refuse vacating a rule, granted on argument, in full court.


text:
    Mumford and Mumford against The Columbian Insurance Company.
    Motion for judgment as in case of nonsuit must bp in the next term after the neglect.
   It was ruled, that judgment as in case of nonsuit for not proceeding to trial, must be moved for -the next term after tbe laches, and the practice, according to the case of Brandi v. Buclchout, vol. 1, p. 113, was now confirmed.

N. B. — Sanford (United States Attorney) mentioned, that by the words of the act it might be moved for “ at any time.” But the court paid no attention to the remark.


author: TomkiNS, J.

text:
    Codwise and Ludlow against Hacker.
    If in cross suits one has been referred, in which all may be obtained that can be gained by a reference in the other, the court will not refer such other, especially if there be a possibility that by so doing the report may be so apportioned as to throw the costs of both on one party, who by a decision of the court seems to have a right to a verdict in his favor in one of the suits.
    The plaintiffs had brought an action against the defendant for disobedience of orders. ' The declaration consisted of two special counts, and one for money had and received. A verdict having been rendered against the defendant, he, in February last, applied to set it aside, which being ordered, (Vol, 1, 526,) he instituted, for the recovery of his wages, money laid out, &c., a cross suit, in which the general issue only was pleaded. On this *being referred, it was agreed, by a consent endorsed on the plea, that everything might be shown in evidence in the same manner as if pleaded. At the reference the plaintiffs in this action perceived a report would probably be given in their favor, on the money counts in this suit, if they could also be referred, and, therefore, gave notice that they would apply for permission to refer the money counts, in this cause, on agreeing to no further prosecute the special counts for disobedience.

      Bilcer (District Attorney)
    resisted the application as involving in the discussion points of law, and being naade with no other intention than to endeavor to get the referees to apportion the balance they might report due, between the two suits, and thus give the plaintiffs costs on both. The full effect of this motion, he contended, had already been obtained; the now plaintiffs having, in the suit against them, set off everything they could against Hacker’s demands. He argued that it was plain the motion was only to avoid going to trial on the suit which they saw they must lose, because their demands on the counts they now relied on were settled by the reference, and as to tkf special counts, the former decision of the court had dei rmined those against them.
   TomkiNS, J.

Upon an affidavit of the plainti/fs, that a suit of Hacker against them was depending in this court, which had been referred, and that the referees, it was apprehended, were inclined to report a balance in their favor, if the state of the pleadings would admit of it, I granted an order, in vacation, to stay the filing of the report of the referees in the suit in which Hacker is plaintiff, to give the plaintiffs, in this cause, an opportunity of making the present application.

Upon the state of facts now disclosed, it appears to me improper to grant the plaintiffs’ motion. By virtue of the consent endorsed upon the general issue, in the cause heretofore referred, the plaintiffs have their election to have the balance, which may appear due to them, reported in their favor, in that suit, or upon the trial of this cause, to recover such balance under the general counts. The circumstance that the trial of the cause will require the discussion and decision of important principles of law, affords a strong reason against the reference prayed for.

Let the plaintiffs take nothing by their motion, and pay the costs of resisting.

Motion denied.

*N. B. — Only TompkiNS and LiviNGSTON, Justices, were present at the application. The latter gave no opinion, having been concerned, nor did the other judges, as they had not heard the motion.


author: Pet' Ouriam.

text:
    Williams against Smith, President of the Columbian Insurance Company.
    If a plaintiff delay liis own verdict, interest will be taxed to him only down to the day when rendered. On granting a new trial, costs are allowed of course, unless when expressed otherwise, or for a misdirection. So if the application be denied, costs for resisting follow.
    The plaintiff in this cause had recovered for a pro rata freight. Thinking himself entitled to a verdict for the whole, he, in May term last, {ante, 13,) moved for a new trial, which the court refused, but said nothing as to the costs of application. The questions now were, whether the defendant should be allowed them ; and whether, in taxing the general costs, interest should be allowed beyond the day on which the verdict was given ?
   Pet' Ouriam.

The costs of resisting the motion go to the defendant of course. As to the interest, the plaintiff has himself been the means of delaying payment. The calculation, therefore, must be carried no further down than to the day on which the verdict was rendered.

N. B. — In another cause, between the same parties, the court said, that the granting new trials was always on payment of costs, unless otherwise expressed, or when for the misdirection of a judge ; in which latter case they abided the event of the suit.

       Exceptions to the rule, that the prevailing party is entitled to them. Green & Mosher v. Beals, post, 256; Williams v. Green, 3 Caines’ Rep. 129; Woods v. Hart, 3 Caines’ Rep. 96. See ante, vol. 1, Gilliand v. Morell, 155 n. (b.)


text:
    Ferris against Smith.
    After a second, commission has issued, with leave to go to trial notwithstanding, the court, on special circumstances, since discovered, will vacate the rule as to going to trial, and allow a further time for tiie return.
   In this cause a commission had issued to examine a witness in France. Pending this, a letter was received, giving information that be was then a prisoner in England. At tbe next term an application was made for a second commission to be transmitted to England, wbieb, after an ineffectual opposition, was granted, but not to prevent bringing on tbe cause at tbe circuit. Previous to this another letter was received, specifying the witness to be in confinement in a town near Liverpool, and evincing that bis testimony was almost conclusive on tbe question.

Bogert, on these facts, and stating that the commission had been sent, without a knowledge of the exact spot where the witness was, moved to vacate that part of the last rule permitting the plaintiff to go to trial at the next circuit, and to allow eight months from the time 'the commission issued for its return.

Ordered accordingly.


author: LivingstoN, J.

text:
      Green and Mosher against W. and T. Beals.
    If one of two partners, without any authority from the other, execute a joint hond and warrant of attorney in the names of both, it is void as against the partner who did not sign; but if judgment and execution he thereon entered up and sued out against both, the court will not set them aside on the application of him who did sign, nor even of him who did not sign, but with respect to him they would order that no execution should go against his person or goods. Such bond and warrant of attorney is good against the party executing, who, on a joint bond so signed, may be sued separately, and if the other partner be proceeded against upon it, he may plead non est factum. If an execution be sued out for more than is due, the court will not, merely on that account, set it aside if it appear that the sheriff has received instructions, though not endorsed on the writ, to levy only what is actually owing, but the defendant, though his application be denied, will be entitled to costs if it do not appear that the directions to the sheriff were given before levy made.
    This was an application to set aside a judgment and execution.

      Mnott, in support of the motion, read an. affidavit by Thomas Beals, stating that he had, for a debt due from him and the other defendant, executed for himself and partner, to the plaintiffs, a bond and warrant of attorney without any authority from William Beals, to sign for him. That these instruments were entered into upon condition of not being enforced unless William Beals, who had absconded, should do any act which might, tend to embarrass the partnership funds, and defeat the claims of the plaintiff and other fair creditors. That since the giving the above securities the deponent had paid the plaintiffs a large sum of money, notwithstanding which, and notwithstanding William Beals had done nothing to endanger or affect the property, the plaintiffs had entered up judgment on the warrant of attorney, sued out a fieri facias for the whole amount, and made an actual levy.
    From these facts, he contended, the judgment and execution must be vacated in tofo. The bond and warrant were joint; and it is a settled principle that one partner cannot bind another by deed. Harison v. Jackson and others, 7 D. & E. 207. Therefore, as the instruments were entire, and the proceedings were against both, there could be no apportionment, and the whole must be set aside as void. The conduct of the plaintiffs was against good faith, and fraudulent as to William Beals. On this ground the court invariably interferes in a summary way. 1 Stra. 40 Doug. 196.

      Biggs, contra,
    read affidavits from the attorney in the cause and one of the plaintiffs, ,positively denying that the • securities were executed on condition, .and affirming them to have been absolute, for a bona fide debt on notes of hand over due; they admitted, however, that a payment had been subsequently made, and execution sued out for the full amount expressed, without any endorsement to levy a less sum, but stated *that a letter had been written to the sheriff mentioning the sum received, with instructions to levy only what was actually owing.
    This last circumstance, he said, was equivalent to endorsing the fi. fa. with the amount due. On the other points he observed that however true the principle, that one partner cannot bind another by deed under seal without a special authority, still he who does sign is. bound, and cannot come forward to have vacated that which is obligatory on him. The applicant here was the party that had executed, who could not be relieved against his own voluntary act, on a bona fide consideration. This, he argued, was evident from considering what the court would do was the motion on behalf of the other partner. They would vacate the securities only as to him. Motteux v. St. Aubin and others, 2 Bl. Bep. 1133 ; 1 Dali. 119, establish every position.
   LivingstoN, J.

The grounds of the application are, 1. That the bond and warrant, on which the judgment waa confessed, were executed by Thomas Beals for himself, and in behalf of his partner, William Beals, from whom he had no authority for that purpose.

2. That j udgment was entered in violation of an agreement, or understanding of the parties, at the time of giving the bond.

S. That the execution has issued for too much.

Our power of granting relief against warrants of attorney unduly obtained, or improperly executed, even after judgments are entered, is not denied, so that nothing remains but to examine whether sufficient reasons have been assigned for a summary interference in the present case.

It is settled in England, (7 D. & E. 207,) notwithstanding an opinion of Lord Mansfield, at nisi prim, to the contrary, that one partner, in consequence of the general authority derived from the articles of copartnership, cannot execute deeds for the other. Were it otherwise, they would be enabled to dispose of the real property of each other, and to create liens on it without end. This would render such connexions more dangerous than they already are, if not discourage them altogether. There can be no doubt therefore, that on a plea of non est factum, a verdict must have been found for the defendants, and that it would be our duty to relieve William Beals, were this a motion at his instance, or on his behalf. But, as a judgment has been entered on this warrant, and for a fair and just debt, and the complaint proceed from the very person who executed the bond for his partner, we are not disposed, although *we assent to the decision cited from X). & E. to listen to it.

This is at any rate the bond of Thomas Beals ; and although joint in terms, yet being void as it respects William, a separate suit might be brought against the former. If so, we see no reason for affording him relief against this judgment merely because the other partner’s name be subscribed to it without any authority. It is permitting him to allege his own turpitude to get rid of that part of the contract which is his own, and ought to be binding on him. Even if the other partner were before us, we should not think it necessary to vacate the judgment, but on the authority of the case in 2 Bl. Rep. 1133, only direct execution not to be served on the person or property of William Beals, and that only Thomas Beals’ interest in the joint property should be disposed of. But such interposition must not be spontaneous. William Beals himself must apply for it. Perhaps he is satisfied with what his partner has done.

With regard to the second objection, it is enough to say that the fact is not made out with sufficient certainty to justify our setting aside the proceedings on that ground. Still less does it appear that more is directed to be raised by this execution than is due; and were that the case it would be no reason to set aside the judgment. If the plaintiffs neglected to give the proper credit in the first instance, they have since corrected the mistake; but there being reason to believe the execution issued for too much, there being no endorsement on it, and it not appearing when the sheriff was directed by letter to levy only what was due, the defendants, although their motion be denied, are entitled to, and must hare, the costs of this application.

Kent, Oh. J., Thompson, and SpenceR, Justices, absent.

Motion denied.

         Unless the other he present, and concur, (Ball v. Dunsterville, 4 D. & E. 313,) or the partner executing have an authority for that purpose, either under seal, (Williams v. Walmsley, 4 Esp. Rep. 220,) or given by parol at the time of tho execution of the instrument, after it has been seen and approved of by the other. Mackay v. Bloodgood, 9 Johns. Rep. 285 But as over the partnership effects each partner has by law an implied authority to bind the other, a fair disposition under seal is obligatory on all; and on the same principle a sailed release by one is operative against the whole, (Pierson v. Hooker, 3 Johns. Rep. 68,) and may, therefore, it would seem, be pleaded as the release of the firm. See Manhattan Company v. Ledyard, 1 Caines’ Rep. 192, n. (a) A receipt given for a partnership debt by one partner by way of set-off and in discharge of a private debt is, if there be not any collusion or fraud, a bar to an action by the firm; causa qua supra, Benderson v. Wild, 2 Camp. 661.


author: Per Ouriam.

text:
    Bergen and Garritson against Boerum.
    If a judgment has been entered, and execution sued out for the penalty of a bond, the court will set aside the execution, and order satisfaction to be-entered, on payment of the debt, and interest due on the condition, with the costs of the suit, though the bond was given for a larger debt than that mentioned in the condition, and for the overplus, a promissory note had been given, which is unpaid, and for which there was, at the time, a verbal agreement, execution should be taken out if it was not duly honored. No more can be levied by an execution, on a judgment upon a bond, than the sum due on the condition, and costs. A notice signed with the Christian and surname ofan attorney is good, though it have not the addition of “ attorney for,” &c. A motion cannot be supported by an affidavit, not served, though the matter it contain be not known till the day of applies tion. A copy ought to be served, and a motion made on the next day.
    Evertson moved to set aside the execution issued in this cause, and to have satisfaction entered on the judgment upon an affidavit stating that the amount of the debt in the condition of the bond, on which judgment had been confessed, had, together with interest and costs, been paid to the sheriff, *who nevertheless threatened to go on and sell, in pursuance of the directions he had received, as the fi. fa. issued was on a judgment for the penalty, and the writ endorsed to levy more than the sum paid.
    "He insisted that the sum in the condition is the actual debt. By the words of our statute it is made so. It allows the bringing into court the principal, interest, and costs, in bar of the suit; and though the terms of the law are, that it be “ pending the action,” which may be now deemed to be at an end, yet in Rich. K. B. 211, and 1 Sell. 359, 360, it will be seen that, the courts of common law will extend the equity of a statute in cases like this, and that by virtue of their general controlling power over their own judgments.

      JEmott, contra,
    read counter-depositions, setting forth that the bond and warrant, on which the execution was issued, were given to secure a debt larger than the condition, for the surplus of which a promissory note was made by the defendant, payable at 30 days, under an agreement that if it was not duly honored, the amount might be levied by execution, on the warrant of attorney; that the plaintiffs had also other demands against the defendant, for Iona fids debts, on notes of hand, to the amount of which the sheriff had been directed to levy, but that the whole did not exceed the penalty of the bond) the condition of which, together with interest and costs, had not been fully satisfied, as, on calculation, two dollars appear to be still due.
    From these circumstances, he argued, the court had no jurisdiction. At common law they could not relieve against the penalty, after forfeiture, because that, after a lapse of the day, was, on legal principles, the amount of the debt. To mitigate this severity, it was necessary to have recourse to a positive statute. The provisions of that, however, went, as had been acknowledged, to authorize an interposition while the suit “is pending,” not afterwards. This court proceeding under the statute, cannot go beyond it, and equity alone is the tribunal to which recourse can be had. These principles are to be collected from 5 Bac. Abr. 256, title Obligation. If, however, the court can interfere, it must be on equitable principles alone. What, then, would equity do ? It would refuse to relieve from the penalty, unless all fair and just debts were discharged. The defendant, therefore, should have sworn the other gums endorsed are not due. He is not otherwise entitled to the favor he asks. ' He that seeks equity should *do it. Francis’s Max. 1. The whole debt also is not paid, and it appears from the affidavits that the defendant is insolvent.
    Evertson, in reply,
    was stopped by the court.

       1 Rev. laws, 349, a. 6

   Per Ouriam.

We have no doubt of our equitable jurisdiction. It would be attended with the most mischievous consequences to allow collecting more than is due on the condition. It would be trying the equity of the case in this way. It is against the very form of the contract, and liable to great abuse. It would be a deception on the world, for the condition which is to discharge the -judgment is on record. If, therefore, it was to reach to other demands, it would be impossible to know what would satisfy the debt. As to the two dollars, de minimis non curat lex. Take the effect of your motion, with the costs of this application and those of that to the judge for the order to stay proceedings.

Motion granted.

\*An objection was taken to the notice of motion, for being signed, simply, “Nicholas Evertson,” without the addition of “attorney for the defendant,” but the court paid no attention to it.

N. B. — It was ruled in this cause, that an affidavit containing new matter, could not be read in support of a motion, though the facts in it were not known till the day of bringing it on. The party should have served copies, and moved the next day.


text:
    Day against Wilber.
    U judgment of reversal has been pronounced, and on the next day the court improvidently order an amendment in the point on which it has proceeded, without notice of the application having been given, it will so far vacate such order as to grant a rule, admitting the party to show cause against such amendment.
    The plaintiff liad, in the last term, obtained a reversal of the judgment below, for a defect in the return of the oath administered to the constable. See ante, p. 189. So soon as the court had delivered their opinion, the plaintiff’s counsel left town. The next day, Gold, on affidavit that the error arose from a clerical mistake in copying, obtained a peremptory order to amend. After the plaintiff had, on the judgment pronounced, made up his record, he was served with a copy of the order to amend. The application now was to vacate that order.
    Simonds, for the plaintiff.
    The rule for amendment was iaregular, because obtained without notice of motion. The court may certainly annex to its decisions any qualifications it *pleases, and the whole constitutes one j udgment. But when it is pronounced without those qualifications, it becomes the unqualified right of the person in favor of whom rendered, and cannot be altered without giving him an opportunity of being heard, because that would infringe upon what the law has given him. The court, therefore, has not power to make such an ex parte rule, as that of last term, in favor of the defendant. For want of notice, the'n, it must be vacated.

      Marison, contia.
    The court has power over its judgments during the term in which pronounced. It is in law but as one day. It was in the breast of the court till the expiration of the term, and might be modified if they pleased.
   Per Curiam.

We ought to alter the order complained of, and give till the first day of next term to show cause against the amendment, that in the mean time all proceedings stay, and that the defendant’s attorneyserve a copy of Mr. Gold’s affidavit on the attorney of the plaintiff.

Rule to show cause only..


text:
    Anonymous.
    To warrant issuing a commission Before issue joined, there must be special circumstances disclosed.
    Jones moved for a commission, to be directed to New Orleans, though issue was not joined, nor the writ returned.
   Per Curiam.

There must be peculiar circumstances tc warrant the application. The intercourse between this and New Orleans is constant. It is impossible to judge whether the testimony asked for will be material, before declaration, or knowing the point in contest.

Motion denied.

        Brain v. Rodelicks and Shivers, vol. 1, p. 73, S. P.

       A commission will be granted to examine a soldier in the service o' the United States who is expected to be ordered away, if such a fact be shown by affidavit. Cardall v. Wilcox, 9 Johns. Rep. 266.


text:
    Jackson, ex dem. —, against —.
    Notice of a non-enumerated motion maybe foran enumerated day, if aecom panied with an excuse for not being given for the first day.
    The notice of motion to set aside a writ of possession was not for the, first day of term, nor for a non-enumerated day.

      Biker, contra.
    It is bad. Though the court allows notice of a non-enumerated motion to,be for another day than the first, still it ought to be for a non-enumerated day.
   Per Curiam.

If the excuse is sufficient, the notice is good, though for any day, notwithstanding the court will hear it only on a non-enumerated day.

Motion granted.


text:
    *J. & S. Watson against Delafield.
    A commission cannot be applied for without notice, though the decision rendering it necessary, he pronounced on the last Friday in term.
    On a motion for a- commission, Pendleton objected because notice of the application had not been given.

      Hoffman. The decision making it necessary was pronounced only yesterday, and this is the last day of term.
   Per Curiam.

That would have afforded a sufficient reason for not giving the regular notice, but notice is requisite in all cases. Take nothing by your motion.

Motipn denied.


text:
    Anonymous.
    A new count on the demise-of a-new lessor, may on 'terms he added to declaration in ejectment.
    The application was to add a new count on tlte demise of a new lessor.
   Per Curiam.

Let tlie plaintiff have leave on the following terms. The defendant have twenty days, after service of the declaration thus amended, to elect whether he will continue to defend the suit, and if he shall so elect, then he is to have the costs usual in cases of amendment in other suits, and twenty days from the time of making such election to plead de novo or abide by his former plea. If the defendant elect to proceed no further, then to receive all his costs up to the day of making such election.

Motion granted.


author:
      Per Curiam.
     SpenceR, J.

text:
    Pomroy against The Columbian Insurance Company.
    On an application for a new trial on account of newly discovered evidence, if the information he stated to have been given by A. B., a person of character and reputation, affidavits to show he is not worthy of credit may be read.
    Bogert applied, in this case, for a new trial, on an affidavit of newly discovered evidence from A. B., a man of good character and reputation.

      Starr offered affidavits to show the person from whom the information was derived was a man not worthy of belief, and, in the present instance, actuated by motives of revenge.

      Bogert objected to their being received, because it wag trying a man’s character, in a collateral way, by surprise, when he could never expect to be called on to support it, and must, therefore, be unprepared.
   Per Curiam.

This person comes forward in the light of a witness: every man who does so puts his general character in *issue. You have invited inquiry by stating him to be a man of character and reputation. Every witness at a trial is equally unprepared; we do not, therefore, see why we may not question his credibility as much as if he was before a jury. Read the affidavits.

SpenceR, J.

I dissent entirely from this determination. I think it may lead to very oppressive and serious consequences. A man’s character is to be sifted, not from what he appears and says himself, but from what others relate of him. He may not even be present when the information he gives is made use of, and must, therefore, be surprised by such an inquiry. I cannot agree to trying a man’s reputation in this manner.

H. B. — Documents consisting of certificates and other papers were received in support of the person’s character.


text:
    Anonymous.
    In ejectment it is of course to amend the declaration by adding a new count on the demise of a new lessor.
    Jones, on a mere notice of motion and affidavit of service, moved to add a new count, in a declaration in ejectment, on the demise of a new lessor. It was opposed. But,
   Per Curiam.

Take your motion on the usual terms. If the opposite side abandon his defence you pay all costs. Tf he vary it, the costs of the former pleading.

Motion granted.

REGULA GENERALIS.

ORDERED, that every person who hath been, or hereafter shall be, admitted to the degree of attorney of this court, and has practised as such for three years, shall be admitted also as counsel in this court, and that the third rule of October term, 1797, as far as the same is repugnant hereto, be repealed.

       S. P. Wimple and another v. M‘Dougal, Cole Cas. Prac. 49, citing Jackson, ex dem. Quackenboss v. Dennis; Jackson v. Kough, 1 Caines’ Rep. 251; Webb v. Wilkie, ib. 154, n. (a.)

      5) The rule of November term, 1803, by which persons who had been admitted to the degree of counsellor at law in any other of the United States, and had practised as such for four years, were entitled to be admitted as counsel in this state, was, by the rule of 11th February, 1809, annulled. 4 Johns. Rep. 192..
      By rule of August, 1806, it was ordered that no person, not being a natural bom or naturalized citizen of the United States, shall be admitted aa an attorney or counsellor of this court. 1 Johns. Rep. 528.


author: Kent, Oh. J. Livingston, J.

text:
    J. and T. Walden against J. and R. Le Roy.
    If a vessel be, from sea damage, obliged to bear away to a port of necessity in order to refit, the wages and provisions, from -the moment of bearing away to the period of sailing on her original voyage, constitute a subject of general average, the.proportion of .which maybe recovered in an aetion of assumpsit, by the owners of the ship, against the proprietors of the cargo, and of course for which the underwriters on the cargo are liable, jBarker v. Pfomm Ins. do., 8 Johns. Rep. 301.
    Assumpsit by the plaintiffs, owners of the ship Thomas, against the defendants, proprietors of her cargo, for their quota of a general average, for wages and provisions, incurred and expended, from the time of bearing away to Norfolk, in consequence of a leak sprung in a violent gale of wind, which, on consultation with the crew, rendered it necessary to make for the nearest port, in order to refit.
    The demand extended from the moment of bearing away to the period of sailing in prosecution of the original voyage, including the time of detention in unloading, repairing, and loading again. The case was submitted without argument, the only question being whether, under such circumstances, wages and provisions were subjects of general average ?
   Kent, Oh. J.

delivered the opinion of the court. In the case of Leavenworth v. Delafield and Dale, (vol. 1, 573,) decided in this court in February, 1804, the vessel was captured and carried into port, where she was detained four months, and then liberated. It was there held that the wages and provisions of the crew during the detention, were to be brought into a general average. In this *case the vessel was forced into port by injuries received at sea, which rendered it necessary for the general safety to go into the nearest port to repair. The two cases appear, at first view, to be sufficiently analogous to admit the application of the same rule, but there is no direct determination on the point in the English law. As far, however, as the question has been incidentally noticed, the opinion seems to have been in favor of the plaintiff’s claim, in this case, to general average for the wages and provisions of the crew during the detention at Norfolk. There were some nisi prim decisions before Lord Mansfield, which may be considered as having a remote bearing on this question. In the case of Fletcher and others v. Poole, tried at the sittings in 1769, the vessel was forced into Minorca to repair, and, in an action against the insurer on the ship for wages and provisions expended while she was detained to refit, his lordship held that they were never to be allowed against the insurer, as a charge against the ship. Park, 53. But afterwards, in the case of Lateward v. Curling, in which the same question arose, Lord Mansfield admitted there were exceptions to the rule; as, when it appeared that the expense was absolutely necessary, and occasioned by some of the perils mentioned in the policy. Park, 125; Marshall, 464. This last case has been considered by the two authors last cited, and also by Buller J. in Da Costa v. Newnham, as containing an approbation, by Lord Mansfield, of the rule, that if a vessel went into port to repair from necessity, those expenses would become general average. I do not think, however, that much if any reliance ought to be placed on nisi prius opinions, so destitute of explicitness on this point, and in which the question, as to general average, does not appear to have been mentioned; and the same remark will apply to what fell from Buller, J. in Robertson v. Ewer, 1 D. & E. 132, The case of Da Costa v. Newnham, 2 D. & E. 407, is, however, material and important on this subject. In that the decision of the court of K. B. approaches very near to a sanction of the above expenses as a general average. It was held,-where a ship is obliged to go into port for the ’ benefit of the whole concern, the charges of loading and unloading the cargo, and taking care of it, and the wages and provisions of the workmen hired for the repairs, become general average. It was not requisite in that case to decide whether the seamen’s wages and provisions should become general average, as the crew had been discharged; but the two cases are very analogous in principle, and *have been so regarded by Park and Marshall. I cannot perceive any sound distinction between them. But Abbott, p. 282, 283, states the question now under consideration as one upon which a reasonable doubt may be entertained, and on which our law books furnish no decision. He seems rather to intimate his own opinion to be against the allowance of the wages and provisions of the crew, although he admits, in p. 280, the expense of unloading and shipping should be sustained by general contribution. He submits the following distinction for consideration ; that if the damage to be repaired be in itself an object of contribution, the incidental expenses ought to be so, otherwise not. The opinion of this author is very respectable, as he is one of the most learned and accurate of the English writers on commercial law. But it is to be observed he states the question as doubtful, and gives no decided opinion, and his distinction is liable to this objection, that it is repugnant to the rule he had already laid down, that if it be necessary to unlade the goods -in order to re*' pair the vessel, the expense of'that unlading, warehousing, &c. go into a general average. Those expenses are certainly as collateral or incidental to the repairs, as the provisions of the crew during that detention, and the wages of the workmen employed are still more closely incidental to the repairs, and yet we see that they are allowed, while-the-repairs are not.

The question, upon the whole, may be considered as still open in the English law, but with a pretty evident inclination in the courts, and in most of the writers, to apply the rule of contribution to the preseht case. The Law Merchant is, however, the general law of commercial nations; and. where our own positive institutions and decisions are silent, it is to be expounded by having recourse to the usages of other nations. This has been the maxim from the time of the Rhodian law to this day.

Ricard, the Amsterdam merchant, says, that if a ship is forced by tempests to go into port to repair, and cannot continue the voyage without hazard to all concerned, the wages and provisions of the crew, from'the day it was determined to seek the port, to the day of the vessel’s departure again on the voyage, are to be brought into gross average. Beawes has adopted this passage from Ricard; for he lays down the rule in the same words, vol. 1, 161, and it is to be observed that Beawes is frequently regarded and cited, in our books, as an authority in the English law. Emerigon, also, vol. 1, 625, says, *that there is the same rule in the maritime jurisprudence of France; and it appears from the case of Newman v. Cazalet, cited in Park, 424, to be the established rule in the commercial court at Pisa. As far, then, as the foreign writers ánd decisions are to influence, the rule may be considered as established in favor of the plaintiffs’ claim. The case reported in the text of the civil law, Big. 14, 2, 6, and upon which some of the foreign civilians have established their doctrine, was merely whether the expenses of the repairs themselves should he made a general average, nautce pro damno conferre (Meant, and it was decided they ought not., The present dicision will not, therefore, interfere with this case in the civil law. Independent of these foreign authorities, I cannot distinguish this case in principle from that of Leavenworth v. Delafield and Dale. It is equally necessary, in both cases, that the mariners should remain for the purpose of proceeding' to the port of discharge, as soon as the inevitable misfortune, the casus fortuitas, creating the delay is removed. The cargo might be sacrificed, at the intermediate port, if the crew were not to be detained, and the expenses of their detention, being for the common benefit, ought to be apportioned as a common burden. On the analogy, then, between this case and those decided in this court, and in England; on the ground of the foreign decisions, in a case appertaining to the commercial law- of nations; and on the reason of the case, as coming within the spirit of the rule for contributions, we are of opinion for the plaintiffs.

Livingston, J.

This cause is submitted, without argument, on a supposition that it is governed by that of Leavenworth v. Delafield, 1 Caines’ Rep. 573, decided in this court in February term, 1804. The two cases, however, differ greatly.

We have as yet only said, that, on a detention after capture, about which there is no diversity of sentiment among foreign writers, moneys expended for provisions and wages, while the vessel and cargo are, reclaiming, shall be borne ratably by all the parties whose property is in jeopardy. Eor this we assigned as a reason, that capture being a misfortune, happening not to the ship alone, but also to the cargo and freight, and that without any defect attributable to the vessel, or fault in her owners, it was reasonable all parties should contribute to the costs and charges incident to averting a condemnation, among which those for wages and provisions were indispensable. It may also be doubted ■whether in such an event the captain be bound to keep the mariners, and whether it be *not matter of contract among the underwriters on these several subjects, that expenses of this bind, which are incurred for the recovery, and not for repairing of the property, shall form a gross average. But neither of these reasons can apply here. The disaster which compelled the Thomas to bear away for Norfolk, befel the ship alone. She sprung a leak, to repair which, so as to pursue her original voyage, and thus earn freight, she went into the nearest port. It is true, it was for the defendants’ benefit that this course was adopted in preference to letting the vessel sink. But this argument, if care be not taken, will prove too much.

If masts or a rudder be caraied away in a storm, or by lightning, it will be for the benefit of all parties concerned that they be replaced; but it was never yet contended that the owner of goods was to bear any part of such expense. So if a vessel touch at a port in her voyage, and there be struck with lighting, it is as much for the shipper’s benefit that she be repaired, as if the misfortune had happened at sea, and yet, will it be said, that in such cases,- too, these charges shall be ratably paid ? To prevent this argument, drawn from the benefit which shippers receive, from misleading us, its application should be confined to advantages conferred which do not result from a previous obligation on the party from whom they proceed. If they be the effect of contract, or of an antecedent stipulated reward, as we shall presently see was the’ case here, it is idle to expect any other renumeration than that which the terms thereof prescribe. In the given case, the freight agreed on is all the compensation the plaintiffs were to receive, and in settling a suitable equivalent, they took into the estimate the very risk and expense, a part of which they now claim of the defendants. The detention of a crew after capture, ^may emphatically, and in the sense above mentioned, be considered as for the common benefit, because a technical total loss having happened, there is no further duty to keep them. They may be .dismissed with prejudice to the insurance, but if these plaintiffs, had discharged the seamen, and thus voluntarily broken up the voyage, neither the defendants, nor the assurers of ship or freight, would have paid them one shilling.

If the maintenance and wages of a crew, under such a disaster, be objects of general contribution, how is this to be reconciled with what is so clearly the contract of every owner of a ship, who takes goods on freight ? Does not every charter *party, as has already been hinted, contain a covenant that “ he will, at his own cost and charge, keep his vessel staunch and tight, and furnish her with mariners, provisions, &c. during the whole voyage?” Does not this engagement oblige him not only to provide a good vessel .at the commencement Of the voyage, but, if possible, to repair her as often as may be necessary, and to bear all the expenses occasioned thereby ? Why, then, are these expenses to be separated ? If by the charter party the owners of the ship have agreed to pay the whole, what right have they to ask any part of them from the merchant ? And if any, why one part more than another ? As well might a landlord, who for a certain rent had covenanted to rebuild, after injuries by lightning or other accidents, during the lease, ask of. his tenant, on the pretence of having done him a service, to contribute towards so much of the expense as was occasioned by the wages of workmen and their provisions. No person would tamely submit to such an exaction; and yet, in what would his case differ from that of the defendants, who, on precisely analogous terms, were tenants of the ship Thomas ?

Again, does not the right to freight, generally speaking, depend on completing the voyage ? And how can this be done, in case of many accidents, unless the vessel stop somewhere and repair them ? The defendants in this very case might have insisted either that the Thomas, should be repaired, or on the plaintiffs’ finding another ship ; and in case of refusal to do either, they might have demanded their goods, as they were under no restraint, (as in Leavenworth v. Lelafield, arising from capture or other cause,) and have sent them on by another opportunity, without . having anything to do with the wages or provisions, or other expenses, incident to the repair of every vessel. It is nothing to the shipper of goods, as it respects the charge he is at in the transportation of them, whether the voyage be lengthened by adverse winds,' or by. the springing of a leak and going into port. In both cases the owner of the vessel is put to greater expense for wages and provisions; but in -neither is the price of freight increased, which will become the case indirectly and very often, if any part of this additional burden be to be borne by him.

This claim, to say the least, is novel in our country; nor has it yet been made with success in Great Britain, although instances of this nature must occur every day; never has a shipper been compelled, in that country, to contribute towards ^disbursements of this kind. The sense and practice of the mercantile world must, therefore, notwithstanding theoretical speculations, be against it, and these, in points otherwise doubtful, are entitled to consideration. In England, I understand through a channel which leaves no doubt of the information being correct, that in a case like the present, these expenses- are never brought- into a general average. A merchant, if a contrary practice be introduced, will never be able lo calculate, with any certainty, the amount of his freight nor will he know how to cover himself by insurance. There is no hardship in throwing the whole of these expenses, in ordinary cases, on the owner of the ship, and letting him look to his policy on the vessel for repairs put on her, and to his underwriters on the freight, for any extra expenditure for wages and provisions, which, being ■ a deduction from her gains or earnings, ought naturally to be pail by those who have underwritten that subject. It is best; ■ where it can be done, and where it does not inter. fere with certain well known rules, which have been established in the case of jettisons, and some other losses which are voluntarily incurred, for the sake of all, to let every subject bear its own loss. Every man will then know the extent of his liability, and act accordingly. In cases like the present, no injury can arise in making the separation, while frauds may be practised under a contrary rule. On the smallest accident the owner, or master, will be tempted to go into port, nor will he have any great inducement to shorten his stay there, so long as he be permitted to employ the crew in repairing the injury, (which they will oftentimes be competent to do,) and to victual and pay them at the expense of the owner of the cargo, who has relied on his contract to do all these things himself.

For these reasons I am for confining a general contribution for extra wages and provisions, to a case of capture, or where a vessel goes into port to avoid an enemy, or where some other step is taken by the master, without any previous injury to the vessel alone, evidently for the benefit of the whole, and with the view of escaping from an impending peril. All these cases rest on the same principle. No particular accident having happened to the vessel, which it is the owner’s special duty and interest to repair, there is no reason why he should personally bear a heavy loss, which, in most of the cases put, is voluntarily incurred, to prevent a general one, greater still. Hence, it will result, and, perhaps, a safer *rule cannot be followed than the one suggested by Abbott, which is, that if the injury to be repaired be not of itself an object of gross average, (and certainly the stopping of a leak falls not within this description,) neither shall any of the incidental or consequential charges become so. If a shipper be. not obliged to find materials, or carpenters, to repair injuries, from tempest, or stranding, why should he be taxed to pay or victual the crew ? Obvious as this difficulty be, no writer has hitherto attempted its solution. A merchant suffers enough by the detention of his goods. If they come to a falling market, in consequence of a protraction of the voyage, or if' damaged, or totally ruined by the springing of a leak, he cannot apply to the owner of vessel or freight for the smallest indemnification. He must bear the loss himself, or look to his own insurance.

But the principle, on which the plaintiffs expect to succeed, is supposed to be in the case of Da Costa v. Newnham, 2 D. & E. 407. The crew being discharged at the place of repair, the question which now occurs was not directly agitated, nor was any thing more determined, than that the underwriters, on a vessel, are liable for “ wages and provisions of workmen hired to refit her.” This seems a self-evident proposition; for as these repairs are put on the subject which they have insured, not only should they pay for the materials, but for the labor bestowed on them. To get rid of this responsibility, it was urged that the sailors being employed for this purpose, they were bound to woik without a further allowance,” and the court, with all the counsel, admit this would have furnished a valid de-fence for underwriters on a ship, provided it had been true in point of fact; but those of the crew, who had been hired after their discharge, were not regarded as hands belonging to the vessel, but as ordinary workmen. The manner in which the court and counsel express themselves merits attention, and goes a great way in deciding the present’ controversy in favor of the defendants, if a point not immediately litigated can be regarded as settled by any thing which judges may say. If these wages had been paid to the sailors as such, the plaintiffs’ counsel allowed the defendant would have nothing to do with them. “ But the fact,” say they, “ is otherwise. At the time the repairs were going on, many of the persons, indeed, who had served on board the ship were hired, but it was in the capacity of laborers, and not of sailors.” The de-fendant’s counsel, also, without denying *the liability of their client, if these men were to be com Bidered as common workmen, rely altogether on their being seamen, and therefore not entitled to extra pay. Ashurst, Justice, agreed to the law as stated by the defendant’s counsel, but not to the fact. *' As to the charge for the sailors’ work, had they remained as such,” says he, on board, it would be fair that a deduction should be made, but it appears that the crew were discharged immediately on the ship’s coming into port, and there is no reason why they should not afterwards be employed as laborers, in making the repairs, as well as any others.” Is not this, in plain terms, saying that the wages and provisions of seamen, under a calamity of this kind, cannot fall on the underwriter of a ship. Buller, too, although he refers to a passage in Beawes, for the foreign law, on which he gives no opinion, lays hold of the same distinction, to make the underwriter liable; “ for,” says he, the crew had been discharged, “ and those men had been employed as common workmen.” I have been thus particular in examining this case, because it is by some supposed an authority in favor of the plaintiffs, whereas, according to my understanding, we find recognized in it, without any qualification, the rule on which the defendants here rely, that the wages and provisions of a crew, during a detention to repair, cannot be brought into a general average. In this view it is a very strong case in their favor, and so it has ever appeared to me. But this is not the only British authority of the kind. Lord Mansfield, in the case of Feltcher and others v. Poole, (Sitt. after Easter, 1769, Park, 52,) declared, that wages and provisions, expended while a ship is refitting, after a storm, could never be allowed against an insurer on the vessel. Much lesss, then, can they be demanded of an owner or underwriter on goods. Eden v. Poole, Sitt. after Hil. 1785; Marsh. 61; 1. D. & E. 127. Buller, too, on a trial before him, ruled, that a charge for wages and provisions, during a detention like the present, could not be recovered on a policy on the ship and goods, but that the freight alone was liable for it.

It is also settled in Robertson, v. Ewer, that the expenso of wages and provisionns, oceasioed by an embargo, which is a stronger case than this, cannot be recovered on a policy on the ship. This case is cited, although it be that of an embargo, for the purpose of quoting what fell from Mr. Justice Buller, and which applies strongly, and immediately, to the point before us. “If,” says he, “the ship had been detained in consequence of an injury received in a storm, though * the underwriters must •have made good the damages, yet the insured could not have claimed the amount of wages or provisions, during the time spent in repairing. The court,” he proceeds, “ only look to the subject-matter of the insurance. Here the ship was safe, and the wages and provisions are no part of the thing insured.” It will at once be perceived that this reasoning applies with double force against rendering an owner of goods, or their underwriters, liable for expenses of this kind.

If there be any foreign author who thinks differently, his dictum will not be found to be supported by the best and more ancient writers on thé law of insurance. Yol. 1, 624. Emerigon, after inquiring “ whether the expenses. of repair and continuing in port to refit, after an accident of this kind, are to make a general average?” informs us, that the Rhodian law decided in the negative, and then cites many celebrated authors, (Eaber, Yinmus, Duarenus, Kuricke, Loccenius, Devicq, Roccus and Marquardus,) who approve of, and adopt this decision. The reason they assign is, “ that such expenses are incurred for the purpose of enabling the vessel to pursue her voyage, rather than with a view of preserving the merchandise.”

The same principle, says this profound lawyer, seems to have dictated the eleventh article, respecting freight, which obliges “ a shipper to wait while a vessel is repairing, or to pay freight,” but the ordinance does not, he continues, require him to contribute to the expenses of refitting, or those caused thereby. The same decision, he adds, is tobe found in the laws of Oleron.

Thus far there appears but one opinion among elementary writers, for although they make no particular mention of wages and provisions, it is evident from other expressions, they must have included them in the exemption, to which an owner of goods was entitled. Being a charge as much arising out of the peril encountered as any other, they could perceive no reason for a distinction, the merit of which is, perhaps, exclusively due to Bicard, who is mentioned by Emerigon as the first who undertook to differ from all the authors whom he had just named. He then cites his opinion, which no subsequent writer has ventured to approve in its whole extent; for the repairs of a ship, after a storm, are by him brought into general average, as well as seamen’s pay and provisions. In truth, he excepts nothing, but includes every expense occasioned by the disaster. Indeed, if he be right in throwing any one of these items into a general average, he *must, probably, be so throughout. Eor why shall the pay of the crew be a general, while the wages of the workmen are a particular, average? Or why shall the provisions of the former fall under one description of averages, and those of laborers under another ? Or why must the cost of a mast be borne by the owner himself, or his underwriter while the charge of keeping the sailors, while it is putting in, must be divided between freight, ship, and cargo ?

Bicard, no doubt, found it difficult to make a distinction, and therefore determined not to differ by halves from the jurists who had preceded him. As he is perhaps the only writer (for Beawes only copies what he says) who is found to maintain this doctrine, I shall be excused for adhering to an opinion which is certainly sanctioned by far the greater part of those who have left us their sentiments on the subject. This will appear to be the case to any one who will be at the trouble of consulting Emerigon, who, it is proper to observe here, admits that the practice of the French courts of admiralty, contrary, however, to the civil jurisprudence of the country, conforms to the opinion of Eicard as far only as respects the expenses of unloading and reloading and the wages and provisions of the crew.

Another argument against making these expenses a matter of general assessment, arises from the extreme difficulty and embarrassment which must ever attend the adjustment and collection of them. To value the vessel, freight, and goods, so as to do justice, is never an easy task. In the case of a general ship, and fifty or more shippers, as may well happen, what trouble will not the owner have to discover the just value of every man’s interest, and what disputes, vexation, and 'delay must he submit to, before he receives one half that is due to him ? To recover one hundred dollars' for wages and provisions, he may have to look to as many shippers, and have a controversy with every one. All this may be avoided by making these expenses, as naturally they are, a particular average.

My apology for the length of this- opinion will be found in the importance of the question, than which few can occur more interesting to the mercantile world. I sincerely hope that the inconveniencies, which are apprehended from a practice under the rule which it has been thought fit to adopt, may exist in imagination only.

Upon- the whole, as the injury which happened here was *not in itself an object of general contribution; as-the plaintiffs were under contract to repair, victual, and man their vessel, throughout the voyage, or lose their freight; as the defendants received no benefit but what the plaintiffs were under positive stipulation to confer; as their own and not the common interest was the sole object; and as a contrary rule may produce great inequality, embarrassment, and delay, my opinion is, that the charge- for these extra wages and provisions is- a particular average, to be borne by the freight only, and that, therefore, the defendants ought to have judgment.

Judgment for the plaintiffs.

         See Leavenworth v. Lelafield, 1 Caines’ Rep. 518, n. (a.)