author:
      Per Guriam.

      Per Curiam.

text:
    Deas against Smith, President of the Columbian Insurance Company.
    If a witness has been'in the power of a plaintiff, he must show endeavors to obtain his testimony, or he will not be allowed to urge the want of it for not going to trial.
    Counter affidavits to those in opposition to a motion, not admissible.
    If'a suit be called and passed, the reasons why should be made appear by the counsel in the cause.
    If offers of compromise have been made to the plaintiff, and refused, on a motion for nonsuit, the court will not order them to be imposed, «< semb.

    Issue had been joined in this cause, in 1800, and two commissions had been sued out; one had been returned, but a long time having elapsed, the defendant gave notice, for the last term, that he would then move for judgment as in case of nonsuit. On the motion being brought [*172] on, the plaintiff *stipulated to try, at the next sittings, or circuit court, reserving to himself the right of applying to the court for a renewal of the stipulation, in case the other commission, then pending, should not be returned.

      Benson

    now renewed the application for judgment, on an affidavit, stating, that a few days after the above stipulation was entered into, the commission to which it alludes arrived, and that the cause had been duly noticed for the last sittings, but had not been brought on.

      Woods, contra,
    read an affidavit by the parties, on.account of whom the plaintiff had effected the policy of insurance, on which the present action was brought, stating the loss, exhibition of proofs, application for payment, refusal to pay, commencement of-suits, suing out of commissions, and their return. That the interest was not fully proved by the witnesses examined under the last commission, as they were privy only to the lading of what was purchased by one of the witnesses, and covered by a former policy, but knew nothing of the residue; that the cause was, nevertheless, noticed for trial, under an idea of proving interest in sundry other articles of the cargo by one York Wilson, who, though a seafearing man, the deponent believed to be permanently resident in New York, as he had lived there for twelve months uninterruptedly, but had lately gone to the East Indies; the deponent first learnt this circumstance during the time of the last sittings, and his witness was not expected to return before the ensuing winter; that being advised the testimony of Wilson was material, the defendant did not proceed to trial. But that he was advised, and believed, one William Bobinson, shortly expected here, was a material witness for him, and that he believed he should be able to obtain Bobinson’s attendance at the next sittings in New York, or the circuit thereafter; that, as the deponent was informed, and believed, the ground of defence insisted on by the defendant, was the want of interest in the assured, and that the deponent understood, and believed, the defendant, or some person in his behalf, offered to return the premium, and pay costs which offer the deponent refused to accept. That the deponent was informed, and believed, the cause was one of the *oldest on the calendar, but was, when called in [*173] its order, passed, for the accommodation of the defendant ; that the deponent would have proceeded to trial, but for a notice to produce certain papers, which he was not prepared to do. These reasons, Woods argued, were sufficient to prevent the object of the motion; at least, if a nonsuit was ordered, it would be on condition of the defendant’s abiding by his own proposal, and paying what was acknowledged to be due, the premium and costs of suit.

      Benson

    offered a counter affidavit to show that York Wilson was a slave, and therefore the want of his testimony could never have prevented the cause from being heard, because, had he been present, his evidence could not have been received.

      Woods

    contended, that counter affidavits were inadmissible, because, in the first place, a copy had never been furnished, and, in the next place, the practice was to exclude them, it being incumbent on the party moving, to support his application on his original.depositions.

      Benson

    acknowledged the general proposition, but distinguished the present case by this circumstance; that the counter affidavit was not to support the motion, but to contradict a collateral and independent fact, asserted by the plaintiff; and, as to not being furnished with a copy, the plaintiff had not given a copy of his.

      Woods.

    Copies of affidavits in exculpation are never afforded; those to charge or demand are.
   Per Guriam.

The application is for judgment as in case of nonsuit; this is opposed by a deposition read by the plaintiff, disclosing facts, to rebut which, the defendant offers a counter affidavit : a question is made whether it can be received. On examining into the point, the court finds the practice to be settled against its reception. (Ante, 13.) It is expressly decided, in Grove ads. Campbell, Col Cas. 114, “that a party can never -support his motion by any affidavits but those on which he originally grounds it.”

The motion must, therefore, depend on the first affidavits. From that by the plaintiff, among other things which it contains, it appears, that the commission mentioned in his stipulation, as the one then pending, was returned before *the last circuit, and that he might [*174] have then gone to trial. His affidavit further states, that the return was examined, and the proof wanted not contained in the answers to the interrogatories; that the interest required did not appear; that there was a witness who resided in Hew York, by whom it was expected to establish the same facts. This witness was not applied to, nor was any measure taken to procure his testimony till after the commencement of the court, and then he is found to be gone to the Bast Indies. There is, however, another witness, who knows something material, but it is not stated what, nor that any measure is taken to procure his attendance. It is further stated, that this is one of the oldest issues; that it was called on and passed, for the accommodation of the defendant, though it is before sworn he did not proceed to trial, because the testimony of York Wilson was, as the plaintiff was advised by his counsel, material, and could not be had. The court are of opinion the reasons are not sufficient. This is a second application for judgment: there has already been a stipulation, and that a special one. The want of a witness is alleged, and no diligence shown to procure him. There ought to have been immediate measures taken to subpoena him. It does not sufficiently appear that the cause was passed for the accommodation sworn to: it was necessary to have substantiated this; it rests on the single oath of the party; the counsel, himself, ought to have stated this. But, though we should grant the nonsuit, we are requested to do this on condition. The affidavit, as to making the offer, ia equivocal; and if, in any case, we would impose such terms, this is not one, for the plaintiff has not discloséd enough to show the proposition was ever made.

Benson

pressed the court to reconsider the case in Coleman, and weigh his distinction.

Per Curiam.

We shall look into it, and if we see occasion to alter our opinion, the bar will he informed of it. In the meantime, judgment of nonsuit must be entered.

Motion granted.

Lewis, Ch. J., absent.

N. B. — The court never spoke to it again.

       Counter affidavits are those in opposition to an affidavit read; supplementary affidavits are those in addition: the former are always received by way of defence to an application, except as against merits sworn to, on moving to set aside an inquest; (Phillips v. Blagge, 3 Johns. Rep. 141,) but even then to rebut an excuse for not noticing for the first day of term, they are admissible. Quin v. Riley, Ibid. 362. So counter affidavits are allowed in support of'the character of a person, on whose deposition the motion is made, if his character for veracity be attacked by the affidavits adduced in opposing the application; but not if the counter affidavits support his character collaterally, by only a further swearing to the same facts. Clark v. Post, 3 Caines’ Rep. 125. And observe, that affidavits in addition to these used by the plaintiff on showing cause of action before a judge, may be read as counter affidavits, on an application by the defendant to the court for an exoneretur on the bail piece. Hart v. Faulkener, 5 Johns. Rep. 362.
      See also Wilcox v. Howland, 6 Cow. 576.

         The rule is, that a new trial shall not be granted for want of testimony which a party had it in his power to adduce. Palmer v. Mulligan, 3 Caines' Rep. 307. Yet in ejectment, and in favor of an old possession, a new trial was granted to let in testimony in the knowledge of a witness who was examined on the first trial, but with which circumstance, the person who had the management of the suit was not acquainted till after the cause had been tried. Jackson, ex dem. Gardner and others, v. Laird, 8 Johns. Rep. 489 See De Peyster v. Columbian Insurance Company, 2 Caines’Rep. 85 ; Steinback v. Same, Ib. 129; Malin v. Malin, 15 J. R. 293 ; McKay v. Marine Ins. Co., 2 Cai. R. 384; Hooker v. Rogers, 6 Cow. 577.


source: Caselaw Access Project

author: Livingston, J.,

license: Public Domain

text:
    *Ripley against Wardell.
    An action will lis on an agreement by a third person to procure, after the discharge of a debtor under the insolvent act, his note for a composition on the original debt due the plaintiff, in consideration of his giving up the defendant's note, that it might not obstruct the insolvent’s discharge under the act. If a security be deposited on returning of which the depositary will be entitled to something in lieu, on tendering the deposit, an account may instantly be brought for the substitute, and an offer of it, the day after suit brought, is not a defence.
    This was an action of assumpsit, grounded on the following circumstances.

      The plaintiff was, in 1796, a creditor of the defendant’s brother, John Wardell, as holder of a promissory note of his, for 727 dollars, payable at ninety days after date.
    In November, 1799, John Wardell, having a promissory note for 811 dollars and 28 cents, made by one Jonathan Haynes, and dated 16th May, 1798, payable six months after date, and wishing to extinguish the demand of the plaintiff, that it might be no obstacle to his discharge under the insolvent act, offered to transfer Haynes’s note to the plaintiff, and at the same time accompany it with a security to give when discharged, his own note for six shillings and eight pence in the pound of the original debt; on doing this he was to receive back the note of Haynes.
    Accordingly the defendant, as his surety, entered into the following contract with the plaintiff.
    ‘I do hereby agree and promise to deliver to John Ripley, John Wardell’s note for six shillings and eight pence in the pound, for a note now given up for seven hundred and twenty-seven dollars, dated 26th December, 1796, payable in ninety days after date. The note which is to be given by the said John Wardell, is to be dated and given after he is discharged by the act of insolvency, payable eighteen months after date; at which time said Ripley is to return a note of hand against Jonathan Haynes, for eight hundred and eleven dollars and twenty-eight cents, dated 16th May, 1798, payable in six months, which is the property of John Wardell, or return this writing to Robert Wardell, and keep the note against Haynes.
    “New York, November 7, 1799.
    “ Signed Robert Wardell.”
    Haynes'then was, and now is, insolvent: but his note, and the above agreement being delivered to the plaintiff, he gave up the note of John Wardell, who was shortly after discharged under the insolvent law. Previous to the 19th of November, 1801, and after the discharge under the insolvent act, John Wardell obtained his certificate under the bankrupt law of the United States.

      *On the 19th of November, 1801, the plaintiff commenced the present action, but, before doing so, offered to return, and tendered to the defendant Haynes’s note, demanding at the same time John Wardell’s, payable at eighteen months, for six and eight pence in the pound, according to the terms of the agreement. In the course of the next day, the defendant -tendered the plaintiff John Wardell’s note for the composition agreed upon, and payable at the time stipulated. The plaintiff,, however, continued to proceed; the defendant gave him a relicta, and cognovit actionem for 270 dollars, the amount of the six and eight pence in the pound on the original debt, subject to the opinion of the court, whether, on the above statement, the plaintiff was entitled to recover. If they should so determine, judgment to be entered for him; if otherwise, a nonsuit.
   Livingston, J.,

delivered the opinion of the court. It was the defendant’s duty, under the agreement stated in this case, to make a tender to the plaintiff of John War-dell’s note immediately, or early after his discharge: the giving of such note was a condition precedent to the plaintiff’s returning the note of Haynes. The tender of this note after the suit was commenced, (which was not until two years after the defendant’s discharge, and after the second bankruptcy of John Wardell,) was too late. If it had been given sooner, the plaintiff might have turned it to some use in the way of business without rendering himself responsible. It does not appear when the plaintiff offered to return the note of Haynes. If at the time of such proposal the defendant had given him John Wardell’s note antedated as he requested, it might have answered, and the plaintiff would have been bound by an offer, which, in my opinion, was not at all necessary to entitle him to this suit; at any rate, as this request was not acceded to until a day after the suit was commenced, it was too late, and the plaintiff must have judgment for the sum of 270 dollars.

Judgment for the plain tiff.

      а) See Cockshot v. Bennet, 2 D. & E. 763; Holland v. Palmer, 1 Bos. & Pull. 95; Smith v. Bromley, Doug. 670.

        Quaere, if this case be not shaken. See Payne v. Eden, 3 Caines’ Rep. 218, n.


author: Livingston, J.

text:
    *The People against Denslow.
    If an act give a turnpike company power to erect a toll-gate near a particular spot, they may place it on the very intersecting spot of an old road, so as the’gate be but near the place designated"; for near is not to be construed nearest.
    The defendant has been tried, and found guilty, at the last court of oyer and terminer for Columbia county, on an indictment for obstructing, in the city of Hudson, a public road or highway, leading from Poughkeepsie to Kinder-hook.
    On the trial, it was proved that the defendant was, under the appointment of the president and directors of the Columbia turnpike, keeper of a toll-gate, standing in the city of Hudson, directly across the road mentioned in the indictment, and which had been a public road for more than 40 years.
    On the part of the defendant, the exemplification of two acts of the legislature, incorporating a company, by the name and style of the president, directors, and company of the Columbia turnpike road, were given in evidence, and also a permission of the governor authorizing the erection of the gate, in pursuance of the seventh section of the law of the 29th March, 1799, incorporating the company.

      That of the 28th March, 1800, s. 3. directs, “ that the most westerly turnpike, or gate, shall be erected near the dwelling-house of John Van Hoesen, in the city of Hudson.”
    The testimony adduced, proved that it was placed 8 chains and 15 links from the house.
    From a map, submitted to the court, and agreed to by the parties it appeared that the gate in question was placed just at the very spot where the old road, for the obstructing of which the indictment was brought, intersected the turnpike ; so that it was impossible to pursue the old road without crossing the turnpike, and going through the gam in dispute, at which half toll was demanded.
    The matter for the consideration of the court was, whether under the words of the third section of the act of the 28'. h of March, 1800, the erection of the gate on that precise spot could be justified: if it could, then a nol. pros, to be entered.
    Spencer, (Attorney-General,) for the defendant,
    observed that he had, antecedently to his appointment, been originally retained for the defendant, and expressed his doubts whether he might not, by his official situation, be precluded from appearing in his behalf, but on being told by the court to ' go on, proceeded thus:
    *The only question is, whether the erection of the gate, at the distance from Van Hoesen’s house, mentioned in the case, is an erection within the words of the act There are two acts of the legislature to be referred to on this occasion. The first is the act of incorporation, passed the 28th March, 1799, establishing a turnpike corporation, by the name of the president, directors, and company of the Columbia turnpike road; the second enacted on the 28th of March, 1800, to amend the first act and route by certain particular alterations. The situation of the most westerly gate, the one now in dispute, is in specific words laid down. Whether they are complied with must be, after the facts are found, a question of law; for unless it be so, no settled determination can be made. The act says the gate shall be near the house of Yan Hoesen ; it is not ordered to be on the part of the road nearest to Yan Hoesen’s: are not, then, 8 chains and 15 links near ? Had the gate been placed more easterly, every person travelling the turnpike road might quit it at Glaverack, pursue the old road round the gate, and a little beyond it enter the turnpike again, without paying toll. It is true that by the 10th section of the first act, there is a penalty given for using the turnpike, and then going round the gates to avoid the toll; but this cannot apply to persons using an old road; nor could it be carried into effect, from the impossibility of being constantly on the watch. It is to guard against these inconveniences that the legislature has made use of this relative term “near,” in order to give a discretion to the company to place the gate where they may think it most beneficial to the interests of the stockholders. Have the president and directors outraged this discretion so confided to them ? That the gate catches people crossing the road, is no argument; and even in this, the directors *have shown their moderation; for they demand [*179] only half toll. From the map, it is manifest, if the gate be removed, that in numberless instances, from Kinder-hook to Glaverack, the tolls may be evaded. The effect would be to create a depreciation of 50 per cent, on the value of the stock. To prevent this, the legislature has given a discretionary power to erect the gate near Yan Hoesen’s, and can it be said that the company has violated the discretion confided in them for the management of the company’s affairs ?

      Foot and Woodworth, contra.
    The question is, whether the president and directors have a right to make people, who only cross the road, pay as if they had travelled along it ? There is nothing more, nor less presented by the case. The gate is fixed at the very place where the old road crosses the turnpike. It never could have been the intention of the legislature, by allowing a new road, to tax the old ; yet such is the consequence of the construction of the act now insisted on by the defendant. For it is evident, by looking on the map, that when the turnpike is crossed, and the old road pursued, the turnpike can never again be entered, on, for the old road comes in at the head of the city of Hudson. Had the legislature been told that the effect of the act they were about to pass, would be to levy a toll on the old road, they would certainly have hesitated. Allowing the word near to be, what it certainly is a relative expression, it must be taken to mean near, so as you do not attach the rights of the community, and set up your gate to catch people who travel along their own old road, and only cross yours.
    This is the only construction which can be equitable for the company and the community. The intent of the act was to give .a right of toll from those who travelled along the road the company had made; and therefore, against such, there is a penalty of ten dollars given for evading the rate allowed to be taken. This is enough to secure the company from tricks that might otherwise be practised. The word near must be understood by examining the intent of the act. The old road was considered when [*180] the act was passed, and it never was the object *of the legislature by the word near, to shut it up. This is a trick of the company to entrap the traveller, and this, the jury, by their verdict, have found, on a very full examination. The court will certainly, after this, be -cautious of saying “near" is this very spot. It is granted that the words of the act will be satisfied by it, but is there no other place which will do so ? and may not one be found, equally near, unattended with any of the inconveniences now objected against the gate ?

       29th March, 1799, c. 59, s. 7; 2 Rev. Laws, 398; 28th March, 1800 c, 69, s. 3; 2 Rev. Laws. 402.

   Livingston, J.

delivered the opinion of the court. The defendant has been indicted, and convicted, for obstructing a public highway in the city of Hudson.

He was keeper of a gate under the Columbia turnpike road company, and the gate he attends is erected 8 chains and 15 links from the house of John Van Hoesen. This gate has been set up under that part of one of the laws incorporating this company, which declares (Laws N. Y. v. 2, p. 402.) “ that the most westerly gate on said road shall be erected near the dwelling-house of John Van Hoesen and it is submitted to us to say, whether it has been placed conformably to these directions; if that should be our opinion, a not pros, is to be entered on the indictment.

It is not denied by the public prosecutor, that this gate is near Van Hoesen’s house ; but because it is not as near as it might be, and intercepts those who travel a certain road leading from Poughkeepsie to Kinderhook, and which crosses the turnpike'at this place, "he insists the gate should be removed, so as to occasion no interruption of this kind.

Whether this circumstance exists, or not, is foreign from our inquiry. The legislature, under a full knowledge of the different roads in that part of the country, have authorized the erection of a gate near this house, and have thereby invested a discretion in the company, which, it must have been expected and intended, would be exercised for their benefit. So long, therefore, as this gate be near to Van Hoesen’s house, which is conceded to be the case,

*we have no righ|to interfere, by saying that this [*181] discretion has been abused, or that the company have obstructed the highway leading from the south to the north: this would be the same as to say, that they shall not do what the legislature have given them permission to do. Our opinion, therefore, is, that this gate was erected pursuant to law, and the present prosecution cannot be supported.

       See Farmers Turnpike v. Coventry, 10 J. R 389.


author: Per Guriam.

text:
    The People against Dole.
    The court will not grant a rule against a sheriff to show cause why an information should not be filed against him, for false swearing in an affidavit annexed to a plea of recaption on fresh pursuit, if the plaintiff, at whose suit the prisoner was in custody, be then "proceeding against the sheriff for the escape.
    The Attorney-General moved for a rule on James Dole, late sheriff of Rensselaer, to show cause why an information, should not be filed against him for false swearing The motion was founded on two affidavits, and certain records on file in this court, from which it appeared- that Dole, while sheriff of Rensselaer, had in his custody one Isaac Bull, charged in execution at the suit of one Edward Raw-son. That Bull having escaped from custody, a suit was thereupon instituted by Rawson against the sheriff, who pleaded a retaking on fresh pursuit, and pursuant to the act in such case, (March 20th, 1801, s. 22,) &c., accompanied his plea with anaffidavit, (see ante, 2, n.,) that the escape was without his consent, knowledge or privity; which suit is still pending.
    The affidavits on which the applicatiqp was made, were by Bull and another, who was in prison with him during his confinement. They stated that Dole repeatedly declared to Bull that he had broken his bonds, (bonds entitling to liberties,) was no longer his prisoner, and could go where he pleased. That Bull at length quitted the prison, and went to his own house, where he remained, until replaced in gaol, under process in another suit.
   Per Guriam.

The object of the application is to render Dole liable for the penalty of 1,250 dollars imposed by the statute on every sheriff, whose affidavit accompanying such plea, shall at any time afterwards appear to be false.

There are two objections to granting this motion. The one, that neither of the affidavits state that Bull had not, as charged by the sheriff, previously forfeited his bonds by an escape, involuntary on the part of that officer. If such was the fact, the sheriff’s *affidavit is not [*182] falsified, though we admit every thing stated in the affidavits, in support of the application, to be true.

The other, and the more important objection is, that a suit is now pending between Rawson and Dole, in the prosecution of which all the facts and circumstances, relating to the escape, will be fully developed and examined, and every object attained, for which the information is intended.

Rule denied.


author: Kent, J.,

text:
    Stuart against Rich.
    Under the act incorporating the first company of the groat Western turnpike road, full toll is payable, though the person has travelled the road less than 10 ralles.
    On certiorari. The plaintiff was a toll gatherer at one of the gates erected under the act passed the 15th March, 1799, entitled <l An act to establish a turnpike corporation, for improving the state road from the house of John Weaver, in Watea Yliet, to Cherry Talley,” incorporating the first company of the great Western turnpike road.
    By a clause m the 10th section of the law, it is provided that no gates or turnpikes (except a turnpike on a bridge before mentioned) shall be erected at a distance less than ten miles from the other. The 11th section enacts, “ That as soon as the whole, or any part of the said road shall be completed, and permission to erect a gate or gates as aforesaid, be granted, the president and directors maj appoint toll gatherers, to collect and vecei\ e of and from all and every person or persons, using the said road, the tolls an I duties hereinafter mentioned, and no more, that is to say, any number of miles not less than ten in length of said road, the- following sums of money, and so in proportion for any greater or lesser distance, to wit: for every score,” &c.
    Under the 15th section, a penalty of five dollars is imposed on any toll-gatherer who shall receive more toll than is established by the act: to be sued for before any justice of the peace of the county in which the offence shall be committed, for the use of the party injured.
    Upon this clause, seven actions had been instituted below, against the present plaintiff, and recoveries obtained in all, for receiving at his gate full toll from travellers who had not passed ten miles on the road.
    *It was now submitted to the court, whether ' the full toll was rightly taken, or, whether there should not have been a deduction made from it in proportion to the distance which the travellers had used the road, less than ten miles, according to the arithmetical rule, if ten miles give so much, what will seven and a half give ?
    If the court should decide in favor of the proportional deduction, the judgment to be affirmed; if against it, and for the now plaintiff, a reversal to be entered.
   Kent, J.,

delivered the opinion of the court. The question submitted is, as to the true construction of the 11th section.of the act, 2 Rev. Laws, p. 393. The gates on that road, except the one upon the Scoharie bridge, are all required to be not less than ten miles from each other, and the 11th section gives the toll therein established for any number of miles not less than ten in length, of said road, and so in proportion for any greater or lesser distance. These last words can be satisfied, by applying them to the greater or lesser distance of the gates above ten miles. The gates i ray be twelve, or fifteen, or twenty miles apart, and then the toll is to be assessed ratably, according to the distance, which cannot, however, be less than ten miles. This construction is the only one that is reasonable, and it will sat isfy the words. The idea that the company must vary the toll at every ten mile gate, on the suggestion that a person has used the road for a less distance than ten miles is inadmissible, because impracticable. The toll-gatherer has no means of knowing whether the traveller has rode ten miles, or a less distance, previous to his arrival at the gate. If this suggestion was allowed to be a ground of reduction of toll, it would open a door to the greatest imposition and fraud upon the company, and it cannot be considered as within the meaning and spirit of the act, especially as the words can be satisfied by the other construction, which is a natural, just, and practicable construction. Judgment of reversal, therefore, must be entered.

Judgment reversed.

         Radcliff, J., being a stockholder, gave no opinion.


author: Kent, J.

text:
    *Drake and Pinkney against Elwyn, and P. and S. Wittaker.
    Facts from which a partnership may be inferred are matter for a jury, and should be rebutted by contrary evidence. A signature by one of a firm in his name, and Co., is good to bind the other partners, though the firm has been always known by the name of another partner and Co., unless it be shown that there is such a distinct house as that by the style of which the bill or note is subscribed.
    This case was submitted without argument. The facts and question are stated in the opinion of the court, which was delivered by
   Kent, J.

This is a suit against the defendants as co-partners in trade, under the firm of Elwyn & Co., on a note to the plaintiffs, subscribed by the said Elwyn, by the name of Elwyn & Co., and dated the 11th December 1800.

On the trial his signature to the note was proved, and it was admitted that Samuel Wittaker was a partner in the business with him, and the question that arose was, whether Peter" Wittaker, the other defendant, was also a partner.

To prove this, the plaintiffs gave in evidence that all the defendants, about the fall of the year 1800, were together in a sloop on the Hudson river, having goods on board, and the said Peter being asked whether he was going to keep store, replied, yes, we are going to try it. That Peter Wittaker was frequently seen in the store with the other defendants, and was there generally as much as the other defendants, and he was once seen by a witness to draw spirits. That the store was sometimes called Wittaker’s store, sometimes Elwyn’s store, and sometimes Elwyn’s and Wittaker’s. That the said Peter is father to the defendant Samuel, and a very old man, unable to write. That after six months Elwyn became insolvent, and the partnership was dissolved, as it was understood from general report. That the said Peter told a witness who owed the co-partnership, that he must pay to him and to no one else. That it was generally understood that Peter was a partner, and that the son Samuel was only a clerk. That the said Peter spoke to a witness of the dissolution of the partnership as if he had been a partner, and mentioned that he was in possession of the stock, and that the debts were to be paid to him.

*There was no evidence that the defendants carried on trade under the firm of Elwyn & Co.

Upon this evidence the defendants moved for a non-suit.

1. Because the plaintiffs had not proved a partnership between the three defendants.

2. Because the plaintiffs had not proved the existence of such a firm as John Elwyn & Co, or that the defendants were partners under that firm.

The court overruled the motion, and the question now submitted without argument is, whether the judge properly • overruled that motion ? if not, the nonsuit to be set aside.

We think the evidence is sufficient to prove that the three defendants were in copartnership as traders at the time the note was given. At any rate, it was sufficient to let the point go to the jury, and to prevent a nonsuit. The only difficulty is, concerning the want of. proof that Elwyn & Co. was the copartnership name. But as such a signature imported a copartnership, and a copartnership did exist at the time between Elwyn and the other defendants, I think it is to be presumed that such was the name of the firm, and that it was sufficient to cast upon the defendants the burden of proving what was the name of the house or firm, if a different name existed. They did not attempt to repel the presumption, and of course it belonged to the jury to consider of, and to draw that presumption. A third question arises, whether the note in question was given on a partnership transaction ; but the same answer may be given to that as to the preceding question. The intendment is, that it was on, a partnership account, and that intendment ought to have been repelled by the defendants, if not founded in truth.

O.ur opinion accordingly is, that the motion for a nonsuit was properly overruled, and that the defendants take nothing by their motion.

Judgment of nonsuit.

       As partnerships may be created by paroi, it necessarily follows, that circumstances are evidence of their existence and nature. See I/ivingston v. Roosevelt, 4 Johns, llep. 251; Peacock v. Peacock, 2 Camp. 45; Guidon v. Robson, Ibid. 302. Therefore, the mere purchase of articles fit for the partnership business, though made by one partner only, and instantly converted to his own use, will bind'the other, if there be no collusion between the buyer and seller. Bond v. Gibson, 1 Camp. 185. See Manhattaan Company v. Levyard, post, 192, n. (a).


text:
    Bancroft and Wife against White.
    A person holding under conveyances in fee deduced from the husband of the demandant in dower is estopped from controverting the seism of the husband.
    Dower for lands and tenements in the town of Canaan, in the county of Columbia, claimed by the demandants, in right of the wife, and as the widow of Daniel Hawes. [*186] *The parties agreed to the following statement of facts.
    Daniel Hawes, the former husband of Lois Bancroft, one of the demandants, during the coverture, and for some years previous to, as well as on, th'e first day of November, in the year one thousand seven hundred and eiglity-six was possessed of the premises holding, using, and improving the same in his own right, and not in the right of another; and being so possessed, did on the said fifth day of November, sell the same to one Jacob Brooker for two hundred pounds; and by deed of bargain and sale, bearing date the same day and year, in consideration of the said sum, conveyed the same to the said Jacob Brooker, in fee, with covenant of warranty.
    The said Jacob Brooker entered by virtue of the said deed, and continued in possession until the execution of the deed next hereinafter mentioned, occupying in hiu own right.
    On the eight day of June, one thousand seven hundred and ninety-five, Jacob Brooker and Huida his wife, for the consideration of eight hundred and ten pounds, conveyed the aforesaid lands and tenements to Silvanus Gardner, in fee, with covenants of seisin and for quiet enjoyment, and containing also a release of dower by the wife.
    The said Silvanus entered by virtue of the said deed, and continued to occupy in his own right until the twenty-third day of September, one thousand seven hundred and ninety nine, when the said Silvanus Gardner, and Anna his wife, by indenture, bearing date on that day, for the consideration of seven hundred and fifty pounds, conveyed the said lands and tenements (except thirty acres thereof) to Ichabod White, in fee, with covenants of seisin for quiet enjoyment and warranty; and the said Icabod entered by virtue thereof, and has continued to occupy in his own right.
    By an act of the legislature, entitled “ An act for the sale and disposition of lands belonging to the people of this state, .and for other purposes therein mentioned,” passed the twenty-second day of March, one thousand seven hundred and ninety-one, it was enacted as follows, to wit: “That all the estate, right, interest, claim and demand *of the people of the state of New-York, of, [*187] in and to any lands, tenements or hereditaments, in the town of Canaan, in the county of Columbia, now possessed by any person or persons, shall be, and hereby is, granted to the respective possessors of such lands, tenements and hereditaments, and to the heirs and assigns of such possessors respectively for ever:” Provided always, that such possessor or possessors, shall be construed and taken to be the person or persons holding in his or her own right, and not occupying and improving in the right of another.
    It was not usual in the conveyances of land in the town of Canaan, prior to the passing the above act, for the wives of the grantors to join in the deed.

      Umott, for the demandants.
    The question for the consideration of the court is, whether, upon this statement of facts, the demandants are entitled to recover? We shall have to contend that they are.
    In order to constitute a title to dower, three things are required by law; marriage, seisin and death. Co. Litt. 31, a.
    The first and last are admitted; the second only is controverted. But this, however, we think sufficiently shown by the case. It appears that Hawes, the first husband, had a possession for a number of years, using the land as his own, not under any other person. He exercised ownership over it, in the most extensive and complete sense of ¿he word, for he sold it, and that with a covenant of warranty. This, therefore, is enough to show seisin sufficient to entitle to dower; a claim ever favored in law. But should it not in strictness be enough to create a legal seisin, the defendant is estopped and can never be allowed to dispute our claim, for his title is derived through Hawes, the first husband of the demandant, and in his right it is that we claim. Against it, however, the act stated in the case is insisted. This act was passed .to confirm, not to destroy rights, and that of the demandant is protected as well as those of the person in possession. The act operated by way of release and mitter le droit: the nature of which was to make valid not only the estate of the tenant, but that of every other person connected with it; [*188] *therefore, not only the estate of Brooker, but that of every other person connected with it. To this the case in Shep. Touch. 319, is in point. “ A. disseises B. and leases for life to 0. B. releases to A. it .is good for 0.” Hot only the estate of the person in possession, but every one connected, with him is equally within its effect. But from the case it does not appear that the state had any right to release; if so, the seisin ®f Hawes must stand impeached.
    Benson, contra.
    This case depends on considerations of a very peculiar nature; on the known circumstances attending the lands in Canaan, and the construction of the statute recited in the case. What seisin now is, is a question. The case in Burrows, Taylor, ex dem. Atl&yns v. Horde, shows what amounts to a seisin, under the ideas now entertained. A possession is not a seisin and yet that is all the seisin here. In that sense of the word Hawes may be said tc have been seised, but in Truesdale'’s Case the court took notice that the whole county of'Kings was taken possession of merely by occupancy. The case states, that Hawes held merely as his own, and not in or by another. The whole country was deemed vacant, and any one took possession.
    This was the view in which it was beheld by government, and, therefore, in 1791, they passed the law recited. The effect of this was to take no notice of prior occupancies, such as Hawes’s, but- to confirm to such as were then in possession, and who were no lo'nger considered as usurpers. Had Hawes derived his title under the patent he would not have been touched by the act; as he did not, it must be presumed he had only a title by occupancy, and when he relinquished that to another, that other was confirmed against every one else, as Hawes himself would have been. The law was intended to meet cases where the right was by occupancy only. Truesdale entered on a piece of ground supposed to have been vacant; he then moved away; some one *then entered on the same land, [*189] upon which Truesdale brought an ejectment, but this court held he could not recover, because he could not have entered anima possidendi.

    In 1798, when Hawes took possession, it was vacant land. The reason why his widow is considered as not entitled to dower, -is, that his estate was merely that of occupancy and not a seisin. In any other case ■ but that of lands so circumstanced, it might possibly have been a seisin, but here it could not be; for the whole was a usurpation and a mere occupancy. To this, therefore, the law * of seisin is not applicable. The conveyance and clause of warranty from Hawes, can work no estoppel upon us. Hawes having had possession, might have been deemed entitled to a right of entry, and then the warranty was no more than a measure of prudence. It is probable he never sold more than his improvements, as was the custom in that country, and it was inserted merely to have evidence of a better title than that usually given, which was a paroi sale of the improvements. Of all these facts the court will take notice, as they did in Truesdale's Case the present statement does not say the land was granted, and, therefore, the occupancy, and the general circumstances of the country, must be inferred to apply.
    Emott, in reply.
    From what is stated of Truesdale's Case, it is evident that he was a mere occupant — a squatter: here a title is deduced by conveyance, which, as it is in fee, a seisin must be presumed, and this circumstance distinguishes it from Truesdale’s. Possession, in all cases, is evidence of right, and as Hawes’s was relinquished after formal conveyance, the court will not presume otherwise, because we have it not in our power to produce the title deeds from whence he claimed. The widow has them not; they go to the heir, or the purchaser; and as her’s is a favored title, unless they are produced, the court will not infer her husband had no right, or that he was a mere occupant. It is stated that Hawes held in his own right, and this negatives that of any other person. He exercised an act of ownership, and what he did, being in his own right, is inconsistent with that of any in the State. If, in any case, possession will warrant an inference of sei[*190] sin, it will here. * White cannot controvert the title of Hawes; a bargainee, by mesne conveyances coming in under the husband, is estopped from denying the right of the wife, and must admit it. That the state has any claim can admit of little doubt. The act is to confirm previous rights, and must be so construed as to effectuate that intent. Suppose this the case of a base fee, * and before the condition was broken, the act had passed; would the breach of the condition afterwards alter the right of the donor ? Besides, the state does not appear to have any interest, and it cannot be presumed. If the fact be so, it ought to have been in the case, which, as it now stands, we have clearly made out.

        а) Jackson ex dem. Ostrander v. Hasbrouck, 3 Johns, Rep. 331; Strutt v. Bovingdon, 5 Esp. Rep. 58.

       The word is confirm. The reasoning is this; by the disseisin a tortious foe is gained; if then the disseisor leases for life, ho retains the reversion, and if the reversion be confirmed, the lease for life is so of course. The same law of release of all right. Litt. s. 449, fol. 266, b.

       This is too general Every one through whose estate he derives title is confirmed.

   Kent, J.,

delivered the opinion of the court. The former husband of the demandant, for some years previous to the 1st November, 1786, was possessed of the premises, and used them as his own, and not in the right of another. He then, for a valuable consideration, conveyed the same in fee with a covenant of warranty, and' the lands have passed, by subsequent conveyances in fee to the present tenant. This is sufficient evidence, in the first instance, of seisin in the husband. The wife is not bound to produce her husband’s deeds, because it is not presumed to be in her power, and in the present case, the tenant claims in fee, under title derived from the husband. The marriage and death of the husband being admitted, there is no question in the case. The court are not to regard lands in the town of Canaan as an exception to the general rules, which would apply, in case the suit had been for lands in another town, nor was the case of Truesdale v. Jefferies, which was cited upon the argument, decided upon the ground of such an exception.

Judgment for the demandant.

       See Browne v. Potter, 17 Wend. 164; Carpenter v. Weeks, 2 Hill, 341; Skerwood v. Vandenburgh, 2 Id. 303; Jackson v. Walter, 5 Cow. 301; Sparrow v. Kingman, 1 Cow. 242.

       Report of the case of Truesdale v. Jefferies, as read in giving the above opinion. This was an ejectment for lands in Canaan and Chatham, (formerly King’s district) in Columbia county, and was argued and decided in April term, 1798. The evidence was, that 18 or 20 years before the trial, the lessor was in possession and continued therein above three years; that he quit-ted the premises, and one Richmond occupied them; that he returned again into possession, and remained perhaps a year; that a controversy arose between him and one Knapp, when he quitted the possession and Knapp entered, and remained in possession until his death; that Knapp died in possession, leaving a widow and four children; that the defendant married the widow, and had been seven or eight years in possession, and held adversely. The plaintiff then gave in evidence the act of 25th July, 1782, and the defendant the act of 22d March, 1791. The act of 1782 stated, that fear and uneasiness prevailed among the inhabitants of King’s district, by rerison of pretences that the whole, or part of the lands, were vacant; and, for removing such fear and uneasinesses, it was enacted, that the interest or right of any person to any lands within the said district, and not within any colonial grant, should not be impeached, by reason that the same were not before granted. The court decided that the construction of the act of 1782 was, that it amounted only to a legislative declaration that those lands should not be located; that the possession of the plaintiff was of no avail, for he entered without claiming title, and relied solely on his possession; that, from his subsequent conduct, he must be presumed to have renounced or abandoned his possession, and all claim under it, and (to use a common, but appropriate expression,) he was to be regarded, in respect to the premises, as a mere squatter. Judgment for defendant.

         The general principle is, that a¡ll who derive title under or through the husband, are estopped from controverting his seisin. Therefore, where a tenant under a mortgagor took from his heir a release, and paid off the mortgage, it was held that the tenant could not dispute the seisin of the mortgagor, and that his widow was entitled to dower. Hitchcock v. Harrmgton, 6 Johns. Rep. 290. The law is the same in favor of the wife of the alienee of the mortgagor, whose right to dower for the want of seisin in her husband, cannot be impeached by a person deriving his title under a grant from the alienee, though (he mortgage was then outstanding. Collins v. Torry, 7 Johns. Rep. 273 An acknowledgment by the defendant that he holds under the will of a grantor, who conveyed to the husband of the demandant in fee, and subsequently re-purchased the land so conveyed, is a recognition of the seism of the husband. Embree v. Ellis, 2 Johns. Rep. 119.
      See also Hitchcock v. Carpenter, 9 J. R. 344; Davis v. Darrow, 12 Wend 65; Browne v. Potter, 17 Wend. 164; Sherwood v. Vandenburgh, 2 Hill, 303 Contra — Sparrow v. Kingman, 2 Cow. 242.


author: Radcliff, J.,

text:
    *Way against Carey, Administrator, &c.
    A justice’s court has no jurisdiction in a suit by an administrator.
    This was a cause in which the only question raised was submitted to the court without argument.
   Radcliff, J.,

now delivered their opinion. This is a case on certiorari to a justice’s court. The error assigned is, that the plaintiff below sued in the capacity of administrator, and that the justice had no jurisdiction to try any action in which an administrator is a party. The question was submitted by consent without argument.

In the case of Wells v. Newkerk, Executor of Persen, this point was decided against the jurisdiction of the justice. We considered the act from which he derived his authority as applicable only to cases in which the parties appeared in their own right, and not to those in which they appeared in outer droit. It is unnecessary to repeat all the grounds of that opinion.

Since that decision, (which was made in January, 1800,) the legislature, when passing the revised act concerning justices’ courts, added a section by which, in conformity to the principle of that decision, they denied the jurisdiction of the justice in suits against an executor or administrator, but were silent as to suits in their favor. From this it might be supposed the legislature meant that suits in their favor might be sustained before a justice. But no such authority can be admitted by inference or implication, and the act ought not to be construed to introduce a different rule.

The decision in Wells v. Newkerk is not, therefore, affected by this act, and the rule continues that the justice has no jurisdiction. For this cause, we are of opinion that the judgment be reversed.

Judgment of reversal.

       Since reported, 1 Johns. Cases, 228.

       By the act for the more speedy recovery of debts to the value of 25 dollars, passed 11th April, 1808. seas. 30, c. 204, s 1, Laws of N. Y., vol.V. p. 315, in actions by executors and administrators jurisdiction is given to the justice’s court.


text:
    *The President and Directors of the Manhattan Company against Ledyard and Ledyard.
    An endorsement in the name of a firm, by a partner, is good, and may be declared on as the endorsement of the firm.
    This case was submitted without argument.
   Radcliff, J.,

now delivered the opinion of the court. This is an action by the plaintiffs, as endorsees of a promissory note made by Brown, Talbot & Co., to the defendants for 488 dollars and 17 cents, and endorsed by them to the plaintiffs.

The declaration avers, that James Brown, William Talbot and John Goodere, acting under the firm of Brown, Talbot & Co., made the note in question, the proper nsyme and'firm of Brown, Talbot & Co. being thereunto subscribed ; and that the defendants being partners, under the firm of Austin Ledyard & Co., endorsed the said note in writing, the proper name and style of the said firm of Austin Ledyard & Co. being thereunto subscribed. The other parts of the declaration are in the usual form.

The partnerships of the makers and endorsees of the note, and the making and endorsing of the same, as above set forth, are admitted.

The evidence on the trial was, that Brown, one of the makers, subscribed the note by the partnership firm, and that Austin Ledyard, one of the firm of Austin Ledyard & Co., endorsed the same with the name of that firm. The question submitted by the parties is, whether the evidence supports the averments contained in the declaration.

We have no doubt that the averments were sufficiently supported by this evidence. It was not necessary to set forth, that one of the partners of each of the firms made and endorsed the note in the name or style of the respe» tive partnerships. Although made and endorsed by one of the partners of each house, the legal effect was the same, and it is in all cases sufficient to set forth a writing according to its legal effect or operation. We are, therefore, of opinion that the plaintiffs are entitled to judgment.

Judgment,, for the plaintiffs.

         The safest way of stating an act is according to its legal effect When that is done, a variation in evidence from the manner in which it is set forth to have been performed, is immaterial, if the effect of that proved bo the same. Therefore, an averment that “A. B. & Co.” accepted a bill, is supported by an acceptance “for A. B. & Co, C. D.,” who was their agent. Heys v. Heseltine, 2 Camp. 604. Eor qui facit per aliwm, facit per se. So, an averment that, the defendants made the bill, “ their own proper hands being thereto subscribed," is supported by the signature of one of a firm, in the name of himself “and Co.” Jones v. Mars and another, 2 Camp. 305. Because the hand of one is equivalent to the “ hands ” of all. Galway v. Matthew, 1 Gamp. 403. But an averment that the defendant endorsed the bill, “his own proper hand being thereto subscribed," is not maintained, it has been ruled, by evidence of an endorsement by procuration. Levy v. Wilson, 6 Esp. Rep. 180. Lord Ellenborough, however, thought that an endorsement by the wife in the name of her husband might support an averment of the husband’s “own proper hand being thereto subscribed;'' at all events, that no objection could on that account be taken by the defendant, after a promise to pay, with a knowledge of the fact. Helmsley v. Loader, 2 Camp. 450


author: Thompson, J., LmHGSTOtf, J.

text:
    Hildreth against Ellice.
    I" a sheriff levy on lands, he will be entitled to Ms full poundage on the sum endorsed, though, in consequence of an amicable settlement, he do not sell.
    This was an action by the late sheriff of tne county of Montgomery, for fees due on a testatum fieri facias, at the suit of the defendant against one Calvin Young.
    *In July vacation, 1793, a testatum fieri facias [*193] issued in favor of the defendant against Calvin Young, directed and delivered to the plaintiff, as then sheriff of the county of Montgomery, and endorsed as follows:^ “Levy 7,500 dollars, with interest from the 24th of January, 1796, and 22 dollars and 59 cents costs, besides your fees.” The writ was transmitted to the plaintiff in a letter from the attorney of the defendant, containing the following directions: “ Enclosed I send you an execution against Calvin Young, for a large sum of money. He purchased a piece of land from the plaintiff, situate in the east part of your county, near Mayfield, if my information is correct. Your attention to the within will oblige your obedient,” &c.
    After the receipt of the writ, and before its return, the plaintiff levied on the goods and chattels of Young, to a small amount, and also went to the land, as above pointed out to him, and made a seizure thereof; but, before the return day of the writ, the plaintiff was requested to delay the sale of the property so seized, the parties in the suit having settled the execution.
    The plaintiff neither returned the writ nor sold the property seized by virtue of it. •
    On this statement of facts it was submitted to the court, whether the plaintiff was entitled to fees for the whole amount endorsed on such execution, or for any other, and what sum ?
    It was admitted that the value of the land seized was equal to the amount of the sum ordered to be levied on the execution, and that Young had also given to the defendant a mortgage to secure payment of it.
   Thompson, J.,

delivered the decision of the court. We think the sheriff is entitled to his full poundage on the sum directed to be levied. The case of Alehin v. Wells, 5 Term Rep. 471, so far as it may be regarded as an authority here, is directly in point. The court there decided, that if a sheriff levy under a fi.fa. he is unquestionably entitled to his poundage, though the parties compromise before he sells any of the defendant’s goods. The stat. 29 Elia c. 4, under which *this decision was made, and [*194] our act correspond in every essential part, as to the plaintiff’s right to poundage. Our act regulating sheriffs’ fees says, “ serving an execution for, or under 250 dollars, two cents and four mills per dollar, and for every dollar more than 250 dollars, one cent and two mills.” But in order to guard against the sheriff’s taking poundage for the sum contained in the body of the execution, where the judgment is upon a penalty, (as in the present case,) or where he is not able to find property sufficient to satisfy the execution, the act further declares, “ the poundage on writs offieri facias, and all other writs for levying moneys, to be taken only for the sum levied.” The true construction to be given to the act, I think, is, that where the sheriff proceeds to sell, he is entitled to his poundage only on the sum actually raised. And wherever the plaintiff interposes, and a compromise takes place, he is entitled to poundage on the sum realized by the plaintiff, or that might have been collected from the property levied on. To say that a sheriff should be entitled to no poundage where a compromise takes place, would be manifestly unjust. He may have incurred all the risk and responsibility, for the safe keeping- of the property, and it will then be in the power of the parties to deprive him of compensation for it. It .may be said, there is no risk where the- levy is on land; this may be true; but it is observable, that perhaps in nine tenths of the eases, the money on execution is raised out of personal property, and the act makes no distinction. Suppose on the very day of sale, and before the vendue commences, the defendant should -pay the sheriff the money, would he not be entitled to his poundage ? and I can see no material distinction, whether the money be paid to the plaintiff or the sheriff, in that stage of the business. Cases, no doubt, may be supposed, where the sheriff will receive more than a valuable consideration for his services. But we think much less injustice will be done by adopting the rule we have laid down, than to say the sheriff shall be deprived of all his poundage wherever a compromise takes place.

LmHGSTOtf, J.

I cannot concur in the opinion just given. It is only on the service of a fieri facias [*195] that the *sheriif is entitled to poundage, and as the service is not complete until an actual sale of the property, he cannot until then have any right to this fee. Nor is there any greater hardship in this, than in countermanding a writ against the person before service, in which case the officer loses his fee, although he may have been several times to the defendant’s house to arrest him. Unless the legislature have, by expressions not to be misunderstood, allowed poundage in cases of this kind, we should refuse it, as it will lead to great oppression, and the reward in many cases will be very disproportioned to the service. An angry plaintiff may instantly after judgment issue an execution for no other purpose than exposing the defendant to this expense, although he may have every reason to believe that the latter intended shortly to pay the debt.

This he would be under no temptation of doing, if the defendant, at any time previous to a sale, could protect himself against this charge. But it is thought hard to permit the party to settle after lands have been seized, without paying the sheriff his whole ¡poundage. This supposes the seizing of lands, or taking them in execution, to be a work of immense labor and trouble. The truth is, that lands are often advertised without the sheriff or his deputies ever seeing them, and the trouble of an actual seizure consists only in riding to the lands and proclaiming that he takes them in execution. And yet, for this paltry service, not. equal to that of arresting the person, he may be entitled, on a heavy judgment, to a most enormous reward. If we do not make- tne proceeds on an actual sale,our only guide in estimating poundage, how shall we ascertain the value of the property seized ; or who can say, that on a second sale what value would have been produced ; and if we allow the sheriff poundage here, as a quantum meruit for his trouble, why not give it to him if he seizes land by the plaintiff’s direction, which, as is often the case, appears in the sequel not to belong to the defendant, or to be previously encumbered to its full value.

Having, then, little, if any doubt as to the intention of the legislature, who appear to have expressed themselves 'with great circumspection, not only by restricting the claim of ^poundage to the actual service of an [*196] execution, but by declaring that it shall be taken only for the “ sum levied,” or, in other words, the sum actually made or brought into court, I think the sheriff not entitled to poundage for the lands taken by him on the execution issued in this case. Of the decision in 5 Term Rep. 470, it is sufficient to say, that it is not binding on us, and that the reasoning of the court neither satisfies me of the propriety of the thing, or that we have the power to make a provision for sheriffs different from that prescribed by the legislature.

Judgment for poundage on the sum endorsed.

         A sheriff is entitled to poundage on serving a ea. sa. though the execution be unproductive from the defendant’s subsequent discharge under an insolvent law. Adams v. Hopkins, 5 Johns. Rep. 252.