text:
    Robert Wilson and William R. Hallett versus Thomas N. Niles, Platt Stratton, and Thos. C. Winthrop.
    To an action of debt, on a judgment obtained in the state of Alabama, the defendant pleaded, that he was not within the jurisdiction of the court, at the time the suit, upon which the judgment was obtained, was commenced, nor at any time afterwards ; that he did not appear to said suit in person, nor authorize any one to appear for him, and that he had no notice of the pendency of the suit "until after the judgment was obtained.
    The plaintiffs replied, that by a law of Alabama, it is enacted, “that when awri- “ shall be issued against all the partners of any firm, service of the same on any “ one of them, shall be deemed equivalent to a service on all, and the plaintiff “ may file his declaration and proceed to judgment, as if the writ had been “ served on each defendant, and the judgment shall be equally valid and effect “ tual on all the defendants.” That the cause of action, upon which said judgment was obtained, was a bill of exchange, drawn by the defendants, under their co-partnership firm; that they were, at the time of the drawing of said bill, co-partners, having a house of trade established at Mobile; that the writ on which said judgment was obtained was issued against all the defendants, as co-partners ; and that it was personally served on the defendant, Niles, in the county of Mobile.
    The defendant rejoined, that the co-partnership had been dissolved before the suing out of the writ, and specially traversed the allegation, that the writ was served on Niles during the continuance of the co-partnership. Upon demurrer to the rejoinder, it was held, that the replication was bad. That the law of Alabama could not give jurisdiction over the person of the defendant, who was not within that state ; and that the judgment did not, therefore, bind him personally, nor subject his separate property to its power.
    Debt on judgment. The declaration contained two counts. The first was upon a judgment obtained by the plaintiffs against the defendants, in the Circuit Court of Law of Mobile county, in the state of Alabama, of November Term, 1828, for 6402 dollars and 75 cents damages. The second count was on a similar judgment, for 6402 dollars and 75 cents damages, and 21 dollars and 61 cents costs,—the costs not forming a component part of the record, but appearing in the execution.

      The defendant, Niles, was returned by the sheriff “ not found ;" but Stratton appeared, and pleaded his discharge, under the act “ to abolish imprisonment for debt in certain cases,” in order to protect his person from the effect of a judgment. The plaintiffs replied to this plea, admitting the discharge, and praying judgment for their debt to be levied, not on the person of Stratton, but on his goods, lands, tenements, &c.
    The defendant, Winlhrop, pleaded to each count of the declaration, “ that he was not within the jurisdiction of the court of Mo- “ bile county, at the time the said suit was brought there, nor at “ any time afterwards, but was, and is a resident of the city of “ New-Yorlc; that he did not appear in person to said suit, or “ authorize any one to appear for him, nor had he any notice of “ the pendency of the suit, until long after said judgment was “ obtained.” [For the form of the plea, see Shumwayv. Stillman, 4 Cowen’s R. 292.]
    To this plea the plaintiffs replied, setting forth, in haec verba, the 8th section of the act of Alabama, for the better regulation of judicial proceedings, passed the 7th of February, 1818, which enacts, in substance, that when a cause of action exists against co-partners, the plaintiff may sue any one, or more of them. “ Jlnd when “ a writ shall be issued against all the partners of any firm, service of the “ same on any one of them, shall be deemed equivalent to a service on all, “ and the plaintiff-may file his declaration, and proceed to judgment, as “ if the writ had been served on each defendant, and the judgment shall “ be equally valid and effectual against all the defendants.”
    The replication then averred, 1st. That at the time of the drawing of the bill of exchange, thereinafter referred to, the defendants were co-partners, having a house of trade, established at Mobile, under the firm of Thos. N. Niles & Co., within the true intent and meaning of the said act, and that Niles resided there, superintending the affairs of the house.
    2d. That the cause of action, upon which the judgment was obtained, was a bill of exchange, drawn by the defendants under their said co-partnership firm, which bill is particularly described in the Judgment.

      3d. That the writ in the suit, in which the judgment was had, . was issued against all the defendants as such co-partners, to which writ was subjoined a copy of the bill of exchange, on which the suit was brought, and a written memorandum, stating that the same was brought on said bill; and that said writ was personally served, between its teste and return, on the defendant, Niles, in the county of Mobile.
    4th. That at the several times referred to, the act aforesaid was in full force within the state of Alabama, and that the said 8th section, contains all the act relevant to the subject.
    To this replication, the defendant rejoined, by setting forth that the co-partnership of the .defendants had been dissolved before the suing out of the writ mentioned in the replication, traversing specially, that the writ was served on Niles during the continuance of the partnership, and concluding with a verification.
    The plaintiffs demurred specially to the rejoinder, 1. Because it traverses matter not alleged in the replication. 2. Because no proper issue could be taken upon the traverse. 3. Because the rejoinder concludes with a verification, and not to the country. 4. Because the special traverse has no apt or proper inducement;— and, 5thly, because the rejoinder does not negative nor confess and avoid the matter contained in the replication, which it purports to answer.
    The defendant, Winthrop, having joined in the demurrer, the cause was argued, in writing, by Mr. Geo. W. Strong, for the plaintiffs, and by Mr. G. Sullivan, for Winthrop.
    For the plaintiffs it was observed, in the opening argument, that the Alabama act set forth in the replication, as applicable to the case in question, was the same as our act relative to proceedings against joint debtors, where all cannot be taken, (1 R. L. N. Y. ed. of 1813, p. 421, § 13,) the only differences being these:
    1st. The Alabama act is restricted to co-partners, while ours extends to joint debtors generally.
    2d. The Alabama act gives the alternative of proceeding either against one or more of the co-partners, or against all, and serving the process on any one of them.

      The latter alternative was adopted in the present case, and herein is the propriety of the averment in the replication, that the writ was issued against the defendants, under the co-partnership firm, and that a copy of the bill of exchange was subjoined to the writ. At least, such is the form of the writ, as contained in the exemplification of the proceedings; which shows what is the practical construction put upon the act by the courts of Alabama.
    1. A plea, like the present to a declaration, on a judgment obtained in one of our own courts upon a contract, would be undeniably bad, [Bank of Columbia v. Newcomb, 6 Johns. Rep. 98] and the facts disclosed in the replication, place the Alabama judgment upon the same footing, as if it had been obtained in one of our own courts.
    II. The rejoinder is clearly bad. 1. It traverses the continuance of the co-partnership at the time when the writ was served on Niles. There is no such averment in the replication.
    The averment there, as to the co-partnership is, that it existed at the time of the contract, viz. the drawing of the bill. A traverse, to be properly taken, must be upon some material averment contained in the antecedent pleading. An issue taken upon this traverse, would obviously be a departure from the replication.

      2. The continuance or discontinuance of the co-partnership, at the time of the service of process, is not the criterion to test the regularity of the proceedings under the Alabama act.
    The language of that act is, “ whenever any cause of action may “ exist against two or more partners,” &c. It is not, whenever a right of action does exist against, &c. The only true criterion, therefore, is the existence or non-existence of the co-partnership, at the time the contract is entered into, and to that time the averment of the co-partnership is cautiously restricted by the replication.
    Such is not only the necessary legal construction of the act, but it is the judicial interpretation put upon it by the Supreme Court of Alabama, shortly after the act was passed. [Click v. Click, M. S. Sup. Court of Alabama, Oct. Term, 1822.]

      Mr. Sullivan, for the defendant, Winthrop.
    The plaintiffs, merchants of Alabama, were holders of a draft of the defendants;—Thomas N. Niles, residing in Alabama, Stratton and Winthrop, in New-York, but transacting business in Mobile, under the firm of T. M. Miles § Co. The plaintiffs commenced a suit on this draft, in an Alabama court, against all the defendants. Niles, residing there, was taken; the other defendants, not being in the state of Alabama, at the time the action was commenced, nor at any time afterwards, were not taken, nor in any manner brought into court. The defendant, Winthrop, never was in Alabama at any time, nor does it appear that there was any co-partnership property there, at the time of the commencement of the action, nor any sole property belonging to him. The service of the writ was made on Niles, as one of the firm of T. N. Niles & Co.; but that firm had been dissolved before the service; nevertheless, under an act of the Legislature of the state of Alabama, judgment was entered up, as well against Winthrop, on whom no service had been made, and who had not been, in any manner, brought into court, as against Niles. It is on this judgment, that the present action is brought, and the plaintiffs seek to enforce, against Winthrop here, the judgment recovered in Alabama, where the court, which rendered it, had no jurisdiction over his person, as is admitted by the pleadings, except by virtue and force of the legislative act of the state of Alabama.
    The general question is, whether the court, in Alabama, had such jurisdiction of the person of Winthrop in the original action; that the judgment recovered thereon, is conclusive against him; and this question comes up on the plaintiffs’ demurrer.
    Upon the pleadings, the court, following the usual course, will look at the pleas, in their order, from the beginning, to discover the first defect. To the declaration, as far as it goes, the defendant has no objection. But under the circumstances of this case, in which it is admitted that no service of the writ was ever made on the defendant, Winthrop, nor any previous or cotemporaneous notice given of the commencement or pendency of the suit, nor of the rendition of the judgment, it is obvious that the plaintiffs, if they wished to obtain a judgment on the merits of their cause, ought to have declared in such a manner, as to coerce the defendant to put himself on the merits. But as the declaration counts only on the judgment recovered in Alabama, and not on the original cause of action, the defendant was necessarily limited to plead no service of the writ, the want of proper notice of the suit and proceedings in Alabama, and no appearance to the action, in person or by attorney in his behalf. The plea of nul tiel record would have been bad, as is decided in Dando v. Tremper, [2 J. R. 87.]
    The plaintiffs, by pleading over, admit all that is traversable in the defendant’s pleas to be true,—for “ every pleading is taken to “ confess such traversable matters alleged on the other side, as it “ does not traverse.” [Com. Dig. Plead. Traverse, C. 2. Bac. Ab. Pleas, 322. 386. Hudson v. Jones, 1 Salk. 91. Nicholson v. Simpson, Fort. 356. Wilcox v. Servant of Skipwith, 2 Mod. 4.]
    Now the traversable matters, in this plea, are that the defendant was not within the jurisdiction of the court of Alabama, at the commencement of the plaintiffs’ suit against him; that he hath not been at any time since, but at the time of the commencement of the suit, and the recovery of the judgment, was, and has been, and still is, an inhabitant of, and resident in, the city of New York; and did not appear in person, in the said suit, nor authorize any person to appear as his attorney therein; nor had he any notice of said action being commenced, till after the time of the recovery of said judgment. These are traversable matters; because if true, they constitute a good plea in bar.
    The case of Borden v. Fitch, [15 Johns. Rep. 121,] determines the sufficiency of these pleas. And in that case, Judge Thompson, cites with approbation, the case of Kibbe v. Kibbe, [Kirby’s R. 119,] and the cases of Phelps v. Halker, [1 Dall. 261;] Kilbourn v. Woodworth, [5 J.R. 41;] Robinson v. executors of Ward, [8 J. R. 90 ;] Fenton v. Garlick, [8 J. R. 197 ;] and Pawling v. Bird’s ex’s. [13 J. R. 192.]
    In all these cases, the judgments were recovered without actual notice to the defendants. Attachments of personal property were made in some of them ; and, in all, the service of the writ, as between the parties, was according to the laws of the state where the judgments were recovered; but in none of them, were the judgments held binding as against the defendants, who had had no service or notice, or opportunity of making defence; but if the defendants had been, at the time of the commencement of the suit, resident in such states, or citizens thereof, and so amenable to the laws, or had appeared by attorney, and assumed the defence in said suits, the judgment, recovered against them, must have been held effectual in every state. The case of Shumway v. Stillman [4 Cowen’s R. 292,] settles, definitively the merits of the defendant’s pleas ; for in respect to the sufficiency of the plea of non-residence, and want of notice, and no appearance to the action, &c.,—the court held that the defendant must plead those matters, specially, and aver such facts, as would preclude all legal inference of actual defence, and all opportunity of defence to the suit. If, therefore, the defendant’s pleas exclude all such inference, they are within the rule, in Shumway’s case, and are, therefore, good, and on demurrer must be held so.
    But the plaintiffs’ counsel, in their second point, insist that this defendant’s pleas are bad, on the authority of the Bank of Columbia v. Newcomb & Stitts, (6 J. R. 98.) In that case, it appears that Newcomb pleaded nul tiel record, and also, that he had not been brought into court, in the original action. The court held, that the want of service on Newcomb, would have been a good defence for him, if properly pleaded, which it was not. This case then sustains the general doctrine, and the converse of the proposition, it was cited to support.
    The defendant’s pleas then are good, unless the matter in the replication avoids them. The replication, puts the plaintiffs’ cause on the Alabama act, and endeavors to show that their case is' within it. The Alabama act, as set forth in the replication, is not correctly distinguished in the plaintiffs’ argument, from the New-York law of joint debtors. A. very material difference, omitted in the plaintiff’s argument, is the extent of the liability of the defendants, not taken on the original writs. By the Alabama act, they are liable to the same extent as the partner, who is taken; but by the law of New-York, the defendants, not taken, are never liable in their persons, nor is their sole property liable on such a judgment, although judgment may be entered up against joint debtors, so that their joint property may be taken, (24 Sess. chap. 90. sect. 13.) On this comparison of the two acts, the second branch of the plaintiffs’ second point, that the Alabama judgment is placed on the same footing, as if it had been obtained in a court of this state, is “felo de se.”
    But the plaintiffs’ counsel insist, that the Alabama judgments, are to have the same effect in New York, that they would have in Alabama; and therefore, that the defendant is concluded by the judgment, and cannot contest the jurisdiction of the Alabama court. Against this proposition, the defendant’s counsel relies upon the authorities he has heretofore cited, as to the general doctrine of the defendant’s right to contest the jurisdiction of the court.
    But the plaintiffs, insisting that their replication is good, demur specially to the defendant’s rejoinder. The rejoinder admits tire Alabama act, but denies that the plaintiffs’ case is within its provisions; because, the defendant insisting that the act has no legal effect, but in suits against co-partners, in a subsisting co-partnership, pleads that the defendants’ co-partnership, had been dissolved before the service of the writ. The plaintiffs, however, seem to insist by their first cause of demurrer, that the continuance of the co-partnership, at the time of the service, is not material. The construction, resulting from the terms of the act, makes this continuance necessary. It is enacted, that whenever any cause of action may exist, against two or more partners, trading in co-partnership, it shall be lawful to prosecute an action against any one, or more of them. Here it is manifest, that the Legislature contemplated, that the cause of action—that is to say, the action itself, and the co-partnership should be co-existent, and this is corroborated by the expression and “ when a writ shall be issued “ against all the partners of any firm, service of the same, on any one of them, shall be equivalent to a service on all.”
    The whole scope of the act of Alabama, is to provide' a remedy for the defect of the common law, and enable a creditor to get a judgment which shall be effectual against the property of co-partners, for co-partnership debts. It is obvious, that the policy of the act did pot extend to other cases, than those of co-partners; and the Legislature did not mean to extend its operation beyond subsisting co-partnerships. This is sufficiently clear, in the replication, to warrant the necessary implication, that the plaintiffs, in their averment of service on Niles, are to be understood, as averring service on him, as a partner, and whatever is necessarily understood, intended, or implied in a plea, is traversable as much as if it were expressly alleged. [2 Saunders, 207, notes 21, 22, 29. Com. Dig. Plead. 2. 2 Saund. 175, no. 1.] In Stephen on pleading, the rule is given, that a traverse may be taken upon matter which, though not expressly alleged, is necessarily implied. [1 Saund. 312. 2 Salk. 629. 1 Ld. Raym. 39.] The traverse, therefore, taken by the defendant, that the service was not made on Niles during the continuance of the co-partnership, was well taken, if the continuance of the co-partnership was material, and whether material or not, this court can know only from the replications, which state the law of Alabama ; for if a construction had been given, different from the meaning apparent on the replication, the plaintiffs should have surrejoined. But if, on the face of the replication, the continuance of the co-partnership is apparently materia], the allegation of the dissolution is thereby made material; but as the mere allegation of the dissolution, without a denial of the allegation of the service on Niles, as a partner, would be an indirect answer to the replications, it was necessary to take a special or formal traverse, to save the argumentativeness of the plea of dissolution. [Stephen on Pleading, 220.]
    The traverses in the rejoinder must, therefore, be considered well taken, as being of matter that is, by necessary implication, understood to be alleged in the replications. But the plaintiffs seem to pretend that they have not averred the service during the continuance of the partnership; if they have not, and the act requires it, then these replications are bad. If they have not, and the act does not require it, then this part of the traverse is immaterial, and the plaintiffs should have taken issue, as they might in that case consistently with their replications, viz. that the writ was personally served on Niles; for they might have regarded the special traverse as limited to the personal service, it being a denial of the service on Niles, in manner and form as the plaintiffs have alledged.

      The second cause of demurrer may be dismissed with the single remark, that it is included in the first, and is a corrollary from it; for if the traverse of the rejoinders is well taken, an apt issue can be taken thereon.
    The third cause is answered by Chitty and Stephen, who state that a special traverse must always conclude with a verification» where new matter is introduced by inducement. [Stephen, 221.]
    But the plaintiffs, in the fourth cause, say the inducement is not apt or proper. If the continuance of the partnership is made material by the replication, whether it be so by the law or not,' the averment of its dissolution, must be apt and proper.
    As to the fifth cause, the rejoinder does confess all that is traversable or material in the replication, except that which it expressly traverses. [Stephen, 255.]
    The principal question is not as to the existence of the rule which has been adopted in this state, in respect to the rights of a defendant, in an action on a judgment recovered in another state, to contest the jurisdiction of the court of that state over his person. That is well settled law ; but the question is, whether any Legislative act of another state, respecting the mode of proceeding against absent debtors, can preclude the citizens or subjects of this state from the right of contesting the jurisdiction of other state courts, over their persons in actions here, on judgments of such courts. And all the first principles of natural justice, sustained by authority, seem to place this question beyond doubt. The questions of pleading are, in a great measure, subordinate to the determination of the main question, and may or not become material, in the decision.

      Mr. Strong, in reply.
    It is objected, on the part of Winthrop, that the declaration counts only on the judgment recovered in Alabama, and not on the original cause of action; and that, therefore, he was driven to plead no service of the writ, &c.
    It is difficult to conceive how the plaintiffs could have declared both upon the judgment and the original cause of action; for if the judgment be valid, the original cause of action is necessarily merged in it. And if the original cause of action had been declared upon alone, Winthrop would, doubtless, have pleaded the judgment in bar, and thus have raised the very question which is now presented for decision. The plaintiffs were, therefore, com-polled to select either the one or the other cause of action, and rely upon it alone; and believing the judgment in Alabama to be perfectly valid, that was accordingly selected.
    An obvious and conclusive answer to all the cases cited on the other side, to show that the court must have jurisdiction of the person, in order to render a valid judgment, is to be found in the fact, that in all those cases, a sole defendant was proceeded against. If there be not a broad and perfectly well settled distinction in this respect, between the case of a sole defendant., and the case of two or more defendants, our act, relative to proceedings against joint debtors, is a dead letter, and every judgment rendered under it, is null and void. This distinction is founded on reasons of natural justice. Where joint debtors are proceeded against, (and it should be remarked that the Alabama act is full as much restricted in this respect, as ours, it being confined to partnership debts alone,) and one defendant only is taken, no recovery can be had, unless a joint cause of action is proved against all. In this way, the defence of one is made to enure to the benefit of all, and as they all jointly entered into the contract, and each became liable to pay the entire debt, or perform the entire duty, it is but right, that a defence made, or default suffered by one, should, at least prima facie conclude the rest. But not so with regard to a sole defendant. If he has had no notice of the suit, either by personal service of process, or voluntary appearance to it, he cannot in contemplation of law, be said to have either made, or to have had an opportunity of making a defence ; nor can a judgment, rendered against him, under such circumstances, be justly taken, as a proceeding in invitum.

    In this view of the subject, it is quite apparent that the main scope of the argument, on the other side, goes to establish that, should the decision in this very case be in favor of the plaintiffs, no judgment should be rendered against the defendant, Niles, who, as appears by the record, was returned not found. But if this court is authorized by the act relative to proceedings against joint debtors, to render a valid judgment against him, it is not easy to perceive any good reason why the court in Alabama, being author rized by a similar act, should not have had the power to render an equally valid judgment against Winthrop and Stratton, in the suit brought there, notwithstanding the want of personal service of the process on them.
    Again: it is said that the replications treat the co-partnership of the defendants as subsisting at the time of the service of the writ on Niles. The necessity, or at least the propriety of this averment, is rendered perfectly obvious, by adverting for a moment to the provisions of the Alabama act. That act, as already observed in the opening, contemplates two modes of proceeding against partners, that is, either against any one or more of them» or against all, by serving the process on any one of them. If the first alternative be adopted, and the process be issued against two or more, it is apprehended that a personal service of the process on each defendant selected, must be effected in order to warrant a proceeding to judgment in that suit. If the other alternative be resorted to, as was done in the present instance, that fact should be indicated by the process, and probably by a statement of the nature of the demand on which the suit is brought, showing that it was for a co-partnership demand, as well to apprize the sheriff that he need not make service of the process on any more than one of the defendants, as to authorize the clerk, upon the return of such process served on any one of the defendants, to enter the appearance of all of them. Such was the sole object of the allegation in question, and was taken from the form of the writ, and the memorandum subjoined to it, as contained in the exemplification of the proceedings in the Alabama judgment, and from whence it is to be fairly inferred that such is the usual course of proceeding in such cases in that state.
    The pretended averment in the replication so much relied upon by the other side, is, therefore, nothing more than the description given to the defendants in the process in the Alabama suit. And if traversable at all, the only issue which it tenders, is whether the defendants were described in the process, as stated in the re¿ plication. But should it be taken as equivalent to an averment of co-partnership in a declaration, yet that averment is always construed in reference to the cause of action in the particular suit. Where a suit is brought upon a co-partnership debt, and the firm is avowedly dissolved, the defendants are, nevertheless, sued as co-partners, and so averred to be in the declaration, and it would be strange indeed, if the suingthem in that character, must be construed into an admission, or a substantive averment, that they are such partners at the time of suit brought. But going even to this extent, does not aid the other side. The imagination must extend one step further, and infer, that the fact of so suing the defendants as co-partners, is equivalent to an averment, that their co-partnership continues down to the time of the service of the process.
    But it is said, the Alabama act differs from our act, relative to proceedings against joint debtors;—in addition to the two particulars noticed in the opening argument,—in this, that the former declares the judgment where one defendant only is taken,to be equally valid and effectual against all the defendants; whereas the latter exempts the person'and separate property of the defendant not taken, from the operation of the judgment. Suppose, then, the two acts to differ in three, instead of two particulars, how does that fact help the defendant’s argument 1 Will it be pretended, that the Alabama act is, therefore, unconstitutional % That is no where insinuated by the opposing counsel, and it is respectfully submitted, whether the court would deem it discreet, to question the constitutionality of a law of a sister state, regulating its judicial proceedings, there daily acted upon, and as old as the state itself. But is not the principle of that act essentially the same as ours? For where is the difference in principle, between taking the joint or the separate property of a defendant not taken 1 True, according to our act, the person and separate property of such a defendant are exempt in that particular suit, but the plaintiff, by bringing a suit on that judgment, can readily subject both, nor could the defendant not taken, avail himself of any matter of defence, in such second suit, except “what he might in his distinct individual capacity have made in the original suit.”
    But if the Alabama act be deemed unconstitutional, this court surely will not hold it so, except so far as it goes beyond ours. Give it effect then, to that extent, and the plaintiffs are entitled to judgment.
    How then stand the merits of the present question 1 for they appear to lie within a nut-shell—no fault is found with the declaration.—Are the replications good in substance 1 If the act of Alabama is to have the same effect given to it here as there, and if the Bank of Columbia v. Newcomb, is to be taken as good law, it is not yet perceived wherein the replications are defective, either in substance or form. The question then turns solely on the sufficiency of the rejoinders. It is confidently believed, that they are decidedly bad, among other reasons, for this, that they specially traverse matter no where alleged in the replication, and that matter, too, tendering an immaterial issue. If correct in this position, it surely requires no authority to support it, for it is an elementary principle in pleading, that a special traverse, in order to be good, must be of material matter previously alleged, as much so as the rule, that when a pleading sets forth new matter, it must conclude with a verification, and not to the country. The case of Click v. Click, in manuscript, decided by the Supreme Court of Alabama, as long ago as 18#2, upon the very act in question, is deemed decisive, to show that the continuance of the co-partnership, at the time of suit brought, or process served, is wholly unnecessary and immaterial. That case will be found among the papers delivered in this cause;
   The Court decided, that the replication was bad on the general principle, that the law of Alabama could not give jurisdiction over the person of the defendant, who was not within that state, at the time the suit, upon which the judgment was founded, was commenced, nor at any time afterwards, and who had not in any way submitted himself to the jurisdiction of the court, which rendered the judgment. The judgment, (it was said,) did not bind the defendant personally, nor make his separate property subject to it. If he could not by plea deny the jurisdiction of the court, the judgment obtained in Alabama would be conclusive, and would in effect become as extensive as a domestic judgment subjecting both the person and property of the defendant to its power.

The case was considered as within the principles of the previous ases of Harrod v. Barretto, [vol. 1 page 155, and ante page 302.] and as having been decided in effect, by the Supreme Court, in the late cases before them.—See 6 Wend. R. 447. Shumway v. Stittman.

The court, therefore, gave judgment for the defendant on the demurrer, with leave to the plaintiffs, to withdraw their replication and fimend their pleading.

[G. W. Strong, Att’y for the plffs.]


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Francis A. C. Brichta versus The New-York Lafayette Insurance Company.
    The plaintiff effected a policy of insurance against fire, on goods contained in his counting-room, and after a loss had happened, he made an assignment of his pro, petty for the benefit of certain creditors, and among other things, assigned his claim on the defendants, without their consent. Held that this transfer did not render the policy void, under the 4th condition of insurance.
    Among the items of loss allowed by the jury, were certain advances made by the plantiff upon some musical instruments, watches, &c., belonging to other per, sons, which had been deposited with him for sale, As these articles were not stated to be held upon “ trust or commission,” according to the third condition of insurance, it was held that they were not covered by the policy.
    This was an action upon a policy of insurance against fire. It appeared, that the plaintiff had effected insurance in the office of the defendants, to the amount of 800 dollars, “ on furniture and “goods contained in his counting-room, No. 3 Phoenix Build? “ings.” At the trial, the plaintiff proved his loss, and the due exhibition of his preliminary proofs; but it appearing that he had, after the loss took place, made an assignment of his property for the benefit of his creditors, and among other things, of his claim upon this company. The defendants contended, that the assignment rendered the policy void, according to the 4th condition of insurance annexed to it.

      Among other items of loss; the plaintiff claimed, that he was entitled to recover the sum of 280 dollars for damages, to three piano fortes, twenty-four watches, a quantity of watch materials, and some violin and guitar strings, belonging to other persons, which had been deposited with him for sale, and on which he had made certain advances. On the pianos, he had advanced 400 dollars, and the loss upon each was estimated at 20 dollars; on the watches, materials, &c., he had advanced 200 dollars, apd these articles were totally destroyed. To reimburse himself for his advances, the plaintiff was to sell the articles deposited with him; but- it did not appear that there was any agreement whereby he was to receive a commission for selling them, nor was his business that of a commission merchant.
    The defendants contended, that the plaintiff could not recover the amount of his advances on the pianos, watches, &c., according to the third condition of the policy, which provides, that “ goods “held in trust, or on commission, are to be insured as such,” otherwise they are not covered by the policy.
    The Judge charged the jury, I. that as the policy was not transferred until after the loss had happened, it was not rendered void by the assignment.
    Secondly, that the plaintiff was entitled to recover for the loss upon the pianos, watches, &c., to the extent of his advances thereon.
    The jury returned a verdict in favour of the plaintiff, for the full amount of his claims, including the loss upon the articles deposited with him for sale; and the defendants having excepted to the opinion of the Judge, now moved for a new trial.

      Mr. James Smith, in their behalf, contended,
    I. That as the policy was assigned without the consent of the defendants, it became void under the fourth condition of insurance. The Judge should, therefore, have non-suited the plaintiff. [Lynch v. Dalligan, 3. Bro. P. Cas. 497. Park on In. 596. Marsh. on In. 698, 9.]
    II. The pianos, watches, &c., were not the property of the plaintiff They were held by him, as collateral security, for advances made to the owners, and, according to the third condition of insurance, they were excluded from the risk. There is a manifest error, therefore, in the Judges charge, which sustained the plaintiff’s claim to the amount of his advances.

      Mr. S. P. Staples, contra, for the plaintiff, insisted,
    That the assignment of the policy, was not such a transfer of it, as was provided against, in the conditions of insurance. It was the transfer of a right to recover a loss which had already happened, and it was such a claim, as ought in equity to pass to the plaintiff’s creditors, [1. Pick. Rep. 76.]
    II. The plaintiff was entitled to recover for his advances on the goods, which were held by him, as security for his money loaned, to the amount of his interest therein, at the time of the loss. [De Forest v. The Fulton Fire Insurance Co. 1. Hall’s R. 84.]
   Per Curiam.

The plaintiff effected a policy of insurance against fire, with the defendants, “on goods and furniture contained in his counting-room.” After a loss had happened, he made an assignment of his property, for the benefit of certain creditors; and assigned, among other things, his claims on the defendants. The defendants now contend, that this assignment rendered the policy void.

The restriction in the policy, against an assignment of the interest of the assured in it, without the consent of the company, evidently applies to transfers made before the loss happens. After lhat event, the rights of the plaintiffs are fixed. His claim besomes a mere chose in action, and like any other chose in action, it is assignable in equity. The reasons, which induce the Insuranee Companies to insert the restrictive clause in their policies, have no existence, or application after the risk has ceased.

Among the items of loss allowed by the jury, were the advances made by the plaintiff on certain piano fortes, watches, &c. The Judge charged the jury, that the plaintiff had a right to recover to the extent of his advances on those articles, and the defendants insist, that the charge was in this respect erroneous.

The third condition annexed to the policy, declares, that “ goods held in trust or on commission,” shall not be covered, unless they are insured as such. The articles in question, were not the property of the plaintiff; they were held by him “in trust or on “ commission.” He had a lien upon them for advances, which could have been defeated, by a repayment of the money advanced. His interest was not absolute, but conditional; and it could not be covered by a mere insurance upon his own property. If the goods in question were to be covered by the policy, they should have been specified in it as goods held in trust or on commission, and it would be violating the plain terms of the third condition annexed to the policy, if this claim were to be allowed. The Judge’s charge was, therefore, in this respect erroneous, and there must be a new trial, unless the plaintiff will strike from the amount of his verdict, the advances upon the property deposited with him. In that case, the verdict for the residue may stand, and the plaintiff can enter up his judgment for that amount.

New trial granted, unless the plaintiff comply with the condition expressed in the opinion of the court.

[James Smith, Att'y for the defendants.]


author: Oakley J.

text:
    Gertrude Vultee, administratrix of Frederick Vultee, deceased, plaintiff in error, versus. David Rayner, defendant in error.
    The plaintiff in error, being sued, in the Marine Court, as administratrix of her husband, on a promissory note made by him, pleaded non-assumpsit and plane administravit. To support the last plea, she called her son, as a witness, and offered to prove by him, the payment of certain of the debts of the intestate by her, in the due course of administration ; and by another witness, that the estate had been overvalued.
    The defendant in error, contended that the administratrix must first produce the inventory of the estate, before she could offer such evidence; and the court below, rejected the testimony as incompetent. Held that the burthen of the issue was on the plaintiff in the original suit, who should have produced a copy of the inventory from the public records, if he wished by it, to charge the adminisistratrix with assests. Held also, that although no person can be a witness to increase a fund, in which he is intrusted, yet, that the son of the administratrix was competent to answer the questions proposed to be put to him:-
    Certiorari from the Marine Court. The defendant below,, was sued as administratrix of her husband, on a promissory note, for 50 dollars, made by him, in his lifetime, in favor of Garrif Gilbert; and endorsed by him to Rayner, without recourse. The defendant pleaded non-assumpsit and ptene administravit. The signature of the deceased, being proved, the defendant called witnesses to show that certain debts due from the deceased to them, had been paid by her; and her counsel inquired of one of them, (who was an appraiser of the estate,) whether the goods specified in the inventory had not been overvalued: intending to show that the estate of the husband, had all been consumed in the payment of his debts. ,The plaintiff below objected to the question, and insisted that the defendant, was bound to produce the inventory. This objection being sustained, the inquiry was excluded.
    The defendant then called Henry V. Vultee, a son of the defendant and the deceased, as a witness, and proposed to show by him, that she had paid certain other debts of the intestate, in the due course of her administration. The plaintiff again insisted, that the inventory must be produced, and contended that the witness was not competent to answer the questions proposed to be put to him. The court having sustained the objection, and excluded the evidence, the jury returned a verdict, in favor of the plaintiff, for 67 dollars; and the court gave judgment in his favor for that amount.
    A certiorari having been taken out by the administratrix, W> Mulock, in her behalf, now moved to reverse the judgment, and insisted that the testimony of H. V. Vultee, was improperly rejected. The witness was not called to affect the assets of the estate, by his evidence, or to procure or prevent a judgment, for or against it; but to show that the defendant below, had acted honestly in the discharge of her duties, as administratrix, and had employed the assets entrusted to her, in the payment of the debts of the intestate. The interest of the heir, he said, is merely contingent. A legal proprietor stands between him and the estate, and he could not by possibility be benefitted, until the plaintiff’s claim was satisfied. He was not called to impeach the debt, or show its payment, but to give evidence, which, while it would tend towards the protection of the defendant, would also tend to cut off the witness from his expectency.
    II. In order to charge the defendant below, the plaintiff was bound to show that she had assets. This he could have done by producing a copy of the inventory; but not choosing to do so, the defendant herself shows, by parol, what the estate was in fact, and offers to prove how it had been disposed of. This testimony, the plaintiff could meet by other proof, but he could not compel the defendant to produce the inventory, which he should have brought into court, if he intended to charge the defendant with its amount. [Benlly v. Bcntly, 7 Cow. R. 701.]

      Mr. O’Connor, contra, for the defendant in error,
    observed, that the question, as to Vultee’s competency, was not to be discussed. The court below decided, that the evidence offered was incompetent, not the witness. If the matters tobe proved were improper, the witness ought not to have been sworn. The court, therefore, rightfully rejected the evidence which the witness was to furnish. Thompson v. Gregory, [4 J. R. 83.]
    II. The court were also correct, in refusing to permit the defendant below, to impeach the inventory by the appraiser. If it could be impeached, it should first have been produced. When a plaintiff, on a plea of plene administravit, shows assets in the hands of the personal representative; the latter, if it appear, that there was an inventory, with an appraisal, ought not to be permitted to go into proof of his administration of the assets, without first producing the inventory, which is the proper and legal evidence of the amount received by him.
   Oakley J.

The defendant below, was sued as administratrix of her husband: she pleaded non-assumpsit and plene administravit. On the trial the plaintiff contended, that she was bound to produce the inventory, which had been made of the estate, and that she could not offer any proof under her second plea, until she had done so.

The burden of proof under this issue, was clearly on the plaintiff below. The inventory was matter of public record, and might have been produced by him, to charge the defendant with assets; this has been expressly adjudged. [Bently v. Bently, 7 Cow. 701.]

The defendant below offered Henry Vultee, as a witness. He was one of the children of the intestate, and of course, entitled to a distributive share of his personal estate. He was offered to prove the payment of debts by the defendant, in the due course of administration. He was rejected as incompetent.

It seems to be a general principle, that a person cannot be a witness, to increase or to prevent the diminution of a fund, in which he is to participate, and upon this principle I should have considered this witness as incompetent, if called upon to testify generally in the cause. [5 J. R. 258. 1 Mass. 239. 2 Day. 466.] Here, however, it is quite apparent, that the witness had no interest in the question, which was proposed to be put to him; for if the plea of plene administravit had been sustained, the plaintiff below, would have had judgment for assets in future. 1 see, therefore, no objection in principle to the competency of the witness, to answer the questions proposed to be put to him. (4 Cranch. R. 69. 4 J. R. 293.]

Judgment reversed.

H. V. Vultee, Att'y for the plff. in error. C. O’Connor, Att'y for deft. in error.


text:
    Henry O. Dusenberry versus William O’Shiel.
    In an action of covenant, it appeared that one Pepper hired a house of the plaintiff; and that the defendant agreed to become his surety for the payment of the rent P. executed a covenant under seal for the payment of the rent, and the defendant on the same paper, executed an agreement also, under seal, to be his surety, but there was no witness to the signature of either. Pepper took the paper containing both agreements, for the purpose of delivering them to the plaintiff, who, upon inspection, objected to the form of the execution of the covenant by P., because there was no witness to his signature. P. therefore erased his signature and wrote his name anew, in the presence of a witness, who signed it, and the paper was then delivered by P. to the plaintiff. The defendant was not present at this transaction, nor did he know any thing of it; but being sued upon his guaranty, he contended that the erasure of the signature of P. under the circumstances of the case, discharged him as surety.
    Held, that the signing and sealing of the covenant anew by P. was to be considered as an original execution and delivery of it. That the defendant by signing the guaranty on the covenant itself, and entrusting it to P., thereby gave him authority to complete the delivery of both instruments. That there was no alteration in the terms of the contract, whereby the surety could be prejudiced, and that he was therefore bound by it.
    The facts of this case sufficiently appear from the opinion of the court, and the preceding marginal abstract. It was an action of covenant for rent, tried before Mr. Justice Hoffman. At the trial of the cause, the plaintiff having shown the circumstances of the transaction, and having proved the handwriting of the defendant, (there being no witness to his actual signature,) the defendant moved for a non-suit upon two grounds first, because the name of Pepper had been erased after that of the defendant was signed and secondly, because the execution of the instrument by the defendant was not legally proved.
    The Judge ruled however, upon the first point, that the executing of the instrument, amounted to a mere acknowledgment of it, -for the purpose of having it witnessed, and'that a witness to a sealed instrument was not absolutely necessary, such witness being chiefly useful in proving a delivery of it. That the possession of the instrument by the plaintiff under the circumstances of the case, was sufficient to warrant them in finding that it had been duly delivered.
    The defendant having excepted to the ruling of the Judge, the jury found a verdict for the plaintiff.
    The defendant now moved to set the verdict aside, and for a new trial.

      Mr. Mulock, for the defendant, contended,
    that the original instrument was cancelled, and that the erasure of the name of Pepper, by the direction of the plaintiff, and the re-execution of the covenant, without the knowledge or assent of the defendant, discharged him. [He cited 2. T. R. 366. 10th Cokes’ R. 92. 4. J. R. 84. 15 Ib. 593. Cro. Eliz. 626. 3. Dyer 261. b. 6 Mod. Rep. 237.]

      Mr. J. Anthon, contra, insisted,
    that the act of Pepper, in writing his name anew, in the presence of a witness, was a mere re-acknowledgment of the instrument prior to its delivery. There had, as yet, been no delivery; the signature of the defendant, to that part of the contract which bound him, was tantamount to a power given to Pepper, to bind him by a future legal delivery of the instrument. The act of Pepper was, a part of such delivery, and the charge of the Judge was in all respects, correct. [He cited 4. J. R. 54. 18 Ib. 499.]
   Oakley J.

This was an action of covenant. It appeared in evidence, that one Pepper hired a house of the plaintiff and that the defendant agreed to become his surety for the payment of the rent. Pepper executed a covenant for the payment of the rent, under his seal, and the defendant also executed, under his seal, an agreement to be surety therefor, which agreement was on the same paper with the covenant of Pepper; but there was no witness to the signature of either. Pepper took the paper, containing both covenants, to the plaintiff, to deliver them to him. The plaintiff objected to the regularity of the execution of the covenant by Pepper, because there was no witness to his signature. He, therefore, erased his signature and wrote his name anew, in the presence of a person who signed it as a witness, and the paper was then delivered by Pepper to the plaintiff. The defendant was not present at this transaction, nor did he know any thing of it. He now contends, that the erasure of the signature ofPepper, under the circumstances of the case, discharged him as surety.

If the covenant between the plaintiff and Pepper had been completed, by the delivery of the deed, and there had been a subsequent erasure of the signature, perhaps the re-execution of if, by Pepper would have created a new contract, to which the defendant would have been no party. But in the present case, the covenant of Pepper, which the defendant guarantied, had never been executed. The plaintiff objected to accept a delivery of the deed, on the ground of a supposed defect in the mode of execution. The signing and sealing of it anew, was then nothing more than an original execution and delivery of the covenant. The defendant, by signing the guaranty on the covenant itself, and entrusting it to Pepper, thereby gave him authority to complete the delivery of both instruments to the plaintiff. There was no alteration in the terms of the contract. The surety, therefore, could not be prejudiced, nor can he say that the covenant is not such as he intended to guaranty.

Motion for anew trial denied.

[W. Mulock, Att’y for the def't.]


text:
    John Wheelwright versus Joseph D. Beers.
    In an action of covenant on a charter-party, the declaration set forth, that the defendant had stipulated, that a vessel, of which hé was the owner, should perform a voyage from N. Y. to Omoa and back, for the plaintiff That all the covenants, on the part of the plaintiff were performed; but that said vessel, instead of proceeding to Omoa, put into the port of Norfolk, and the defendant did not despatch her thence, but neglected and refused so to do, contrary to the effect of the charter-party.
    The defendant pleaded six special pleas in bar. The first and second, set forth in substance, that the vessel, while proceeding on her voyage, was 'so much damaged by the perils of the seas, that she put into Norfolk, as a port of necessity, where the plaintiff took possession of the cargo, and of the same ever afterwards retained possession.
    The fourth plea, after admitting the charter-party, the sailing of the vessel, and that she put into Norfolk, &c., alleged that said vessel, while prosecuting her voyage, was so much damaged by the perils of the seas, that it became necessary, that she should put into the nearest port, and that Norfolk was, accordingly selected as a port of necessity. That while there, the said vessel was examined, to ascertain what repairs were requisite to enable her to proceed on her voyage, when it was found necessary, for the benefit of all concerned, that she should be sold, that she was sold accordingly, “ and so, and not otherwise, “ the said voyage, was by the mere perils, of the sea, broken up.”
    The fifth and sixth pleas alleged, that the plaintiff ought not to maintain his action, because the cargo, mentioned in the declaration, belonged to, and was laden on board of said vessel, for one John Living, for whom said charter-party • was made by the defendant, as his agent, as appeared by the oyer thereof.

    Upon demurrer to these pleas, the plaintiff had judgment upon the first, second, fifth and sixth, and the defendant upon the fourth.

    This was an action of covenant on a charter-party, bearing date the 13th of August, 1827, purporting to have been entered into, by and between the defendant, for J. D. Beers & Co., of the one part, and the plaintiff, as agent for John Idving, of the other part. The charter-party recited, that Joseph D. Beers & Co., being the owners of the brig Champion, had “ granted and to freight letten, to the party of the second part, the whole tonnage of that vessel, for a voyage from New-York to Omoa and thence back to New-York—and it contained the usual cove2 nants, providing that the vessel should, during the continuance of the voyage, be made and kept by the party of the first part, “ to the best of his endeavors, and at his own proper cost, tight, stanch and strong,” and sufficiently provided for such a voyage. The vessel was to receive her cargo at New-York, by a certain day, proceed with it to Omoa, and there take on board a return cargo for New-York ; and Mr. Living, was to have a free passage in her to Omoa.
    The plaintiff, on his part, was to furnish a specified freight, for the outward, and a cargo of logwood for the homeward voyage. For the use of the vessel outward, he was to pay 450 dollars, and a certain sum per foot, for all the logwood brought home in her.
    The declaration contained two counts: the first, after setting forth the terms of the charter-party, and averring a general performance, on the part of the plaintiff, of all things on his part, to be performed, alleged that the plaintiff furnished the said outward cargo, for the vessel, which was on the 27th of August, 1827, received by the master; who, on the same day set sail, and proceeded toioards the port of Omoa, &c. The breach assigned was, that the vessel did not proceed to Omoa, but on the contrary, before her arrival at that place, to wit, on the 18th of September following, proceeded to, and stopped at the port of, Norfolk, in the state of Virginia; and although the defendant ought to have despatched, and was then and there “ required, by the said plaintiff, to despatch and send the said vessel to said port of Omoa ; “ and although the said vessel ought to have proceeded from said “Norfolk, on her said voyage, yet the said vessel did not proceed, “and the said defendant did not despatch the said vessel, with her “said cargo, on her voyage aforesaid; but on the contrary,” the said defendant neglected and “ refused so to do against the will of the “said plaintiff, and contrary to the form and effect of the said charter-party, and the covenant of the said defendant in that behalf; “by means whereof, the said plaintiff lost sundry great gains “and profits, which would have arisen from the said cargo, if the “same had been carried to Omoa, and was also put to great ex- “ pense,” &c.
    The second count, after setting forth the covenants of the charter-party, and the sailing of the vessel, with her cargo on board, assigned as the breach, “ that the said vessel was not made and “ kept by the said defendant, to the best of his endeavors, tight, “ stanch and strong, and sufficiently manned, tackled, provided “ and apparelled,” “ but on the contrary thereof, the said vessel, “at the time of the commencement of her said voyage, and during “ the same, was rotten and unseaworthy, by reason whereof she “ was unable to prosecute and continue her said voyage, and after “ the said voyage had been commenced, the same was, afterwards “at Norfolk,” “on the 19th day of September,” “with the “consent of the said defendant, and against the wishes of the said “ plaintiff, broken up and abandoned,” &c.
    The defendant pleaded six special pleas in bar. The first plea, after admitting the execution of the charter-party, the sailing of the vessel, and that she put into Norfolk, as alleged in the first count of the declaration, set forth as an answer to the breach specified therein, that while the vessel was on the high seas, pursuing her said voyage, she was, by the force and violence of “ the winds and waves, and by injuries from the perils of the seas, “ so much damaged” that it “ became necessary for the safety “ of the vessel, cargo and crew, that she should put into the “ nearest port, and thereupon the said brig made sail for the port “of Norfolk, as a port of necessity,” ”and arrived there on the “ 18th day of September, in the year last aforesaid, and the said “plaintiff, then and there received and took possession of the said “ cargo,” and ever afterwards kept the same in his possession ; “ without this, that the said brig ought to have proceeded from said “ Norfolk on her said voyage to Omoa, and the said defendant “ ought to have despatched and sent said brig with her said cargo “ on her voyage aforesaid, and that the said defendant neglected V and refused so to do, against the will of the said plaintiff,” &c.
    The second plea, which was to the second count, was exactly like the first, with the exception of the traverse, which, in this plea, formally denied the facts, as stated in the breach set forth in the second count.
    The third plea admitted the charter-party, the lading of the cargo on board by the plaintiff, the sailing of the vessel and her putting into the port of Norfolk, as stated in the declaration, but averred that the said brig, while on the high seas pursuing her Said voyage, was, by the force and violence of the winds and waves, and by damages from the perils of the seas, so much injured in her masts, spars, sails and riggingfand so much strained in her upper works, and injured in her hull,” that thereby it became “ necessary “ for the safety of said brig, cargo and crew,” that she should put into the nearest port, “ and thereafter the said brig made sail for “ the port of Norfolk, as a port of necessity, and so, and not other- “ wise, put into the said port of Norfolk,” and arrived there the said 18th of September; and, while at Norfolk, the said vessel “ was duly examined with a view to ascertain the repairs “ expedient and necessary to enable her to proceed on her voyage, and it was found to be necessary “ to sell the said brig for the “ benefit of all concerned;” and thereafter the said brig was “ necessarily sold, and so, and not otherwise, the voyage aforesaid” “ was, by the mere perils of the seas, broken up and prevented ; “ without this, that the said brig ought to have proceeded from said “ Norfolk, on her said voyage to Omoa, and the said defendant “ ought to have despatched and sent the said brig, with her said “ cargo, on her voyage aforesaid, and that the said defendant “ neglected and refused so to do against the will of the said “plaintiff” &c.
    The fourth plea, (which was to the second count,) followed the words of the third, down to the traverse, and then concluded by denying that the said brig was not made and kept by the said defendant “ tight, stanch and strong, and sufficiently manned, “ provided, tackled and apparelled, with all things necessary for “ said voyage ; and that the said brig, at the time of the com- “ mencement of said voyage, and during the same, was rotten “and unseaworthy, by reason whereof she was unable to prose- “ cute and continue her said voyage, and that after the said voy- “ age had been commenced, the same was, afterwards at Norfolk, “ with the consent of the said defendant, and against the wishes “of the said plaintiff'broken up and abandoned.”
    The fifth plea was to the first count. It craved oyer of the charter-party referred to in that count, and after setting out the covenant at full length, averred that the plaintiff ought not to maintain his action, because the cargo, “ in the said first count “ mentioned, was owned by and laden on board of said brig or vessel, “jor ami on account of the said John Living, in the said charter- “ Party named.”
    The sixth plea was in all respects like the fifth, except that being in reply to the second count, it was properly adapted to it.
    The plaintiff demurred to the first, second, fourth, fifth and sixth pleas, and took issue upon the third.
    The defendant having joined in the demurrers, the cause was argued by Mr. John L. Mason and Mr. P. W. Radcliff for the plaintiff, and by Mr. George Sullivan for the defendant.

      Mr. Mason, in support of the demurrers, contended.
    I. That the first plea did not answer one of the material allegations in the first count, viz. that the defendant was required by the plaintiff, to proceed on the voyage from Norfolk to Omoa. [1 Saund. 28, 11 J. R. 19, Satterlee v. Douglass.]
    II. That the affirmative matter, stated as a defence in the first plea, was not inconsistent with the breach assigned in the first count of the declaration. [Arch. Plead. 207. 9 Johns R. 186. Mar. In. Co. v. Un. In. Co. 10 East. 378. Hunter v. Prinsep.]
    III. That the inducements in the second plea, did not contain matter sufficient to defeat the plaintiff’s action; and that an issue upon that matter, would be an immaterial one. [Arch. Plea. 235.]
    IV. That the fourth plea was defective inasmuch as it does not expressly state, that the sale of the vessel was rendered necessary, by the damage she sustained from the perils of the seas; nor does it state any facts, from which such a conclusion can legally be drawn.
    V. That the fifth and sixth pleas are clearly bad. The charter-party was entered into by John Wheelwright, the plaintiff. The covenants were made by him on the one part, and to and with him by the defendant on the other part; John Living could never have maintained an action on the instrument. [Stone v. Wood, 7 Cow. R. 453. 2 Ld. Raymond, 1418. 6 J. R. 94.]

      Mr. Sullivan, contra, contended,
    I. That the deed produced varied from that declared on, and that the action could not, therefore, be maintained.
    II. That the deed produced, was not the deed of the plaintiff [Paley on Agency, 153.]

    III. That the plaintiff on the pleadings had no cause of action» and that the declaration was bad. That as the demurrers to the pleas were general, the defendant had a right to attack the plaintiff’s declaration, and if that should be found bad, or to vary from the deed produced on oyer, the plaintiff could not recover.— The deed declared on (said Mr. S.) is the deed of John Wheelwright; but the covenant produced, shows that the plaintiff was but an agent for Mr. Living, and that he executed the deed as such agent. This is a material variance, and fatal; but the deed is in no" respect, the deed of the plaintiff; he had no interest in the subject matter of the contract; he was a mere agent for another, who was himself to be on board the vessel, control its operations, and receive the benefit of the voyage. The deed was intended to be the deed of Mr. Living; it should have been executed in his name by the plaintiff, and the latter cannot maintain this action. [6 J. R. 94. 2 Caines 66. 2 Ld. Ray. 1418. 2 East. 142.]
    IV. The declaration is bad. It does not set forth enough to form a breach. The allegation, in the first count, that the defendant was required to proceed on his voyage, is wholly immaterial. If the defendant was bound to proceed on the voyage, his being required to do so at Norfolk, could not add to his obligation; and the declaration is not aided by that averment.
    V. But it is immaterial, whether the declaration is sufficient or not, since the fourth plea is unquestionably good. It is in form and substance like the third plea, on which the plaintiff has taken issue. If the fourth plea is bad, the third is bad also ; but the plaintiff has prudently taken issue upon that, and now makes an experiment, in the success of which he betrays a want of confidence.
    The fourth plea admits, that the voyage was begun in good faith, and sets forth a sufficient reason why it was not prosecuted to a conclusion; it states, that the vessel being injured on her voyage, by the perils of the sea, was compelled to put into Norfolk, as a port of necessity, where she was examined; upon such examination, it was found necessary to sell her, and she was sold accordingly, for the benefit of all concerned. This plea also asserts, that the voyage was broken up by the mere perils of the seas, and denies that the defendant had not done all in his power to make the vessel stanch and strong, and denies that she was unseaworthy at the commencement of the voyage. The defendant by demurring, has admitted the truth of the plea, and has admitted also, that the voyage was broken up by the mere perils of the sea; and that the vessel being pronounced unable, from sea damage, to pursue her voyage, had been sold. If the plaintiff, by the pleadings, does not admit that the vessel was seaworthy at the commencement of her voyage, still the defendant has denied that she was not seaworthy at that time, and has therefore asserted the fact. It clearly then appears, that the voyage was broken up by no fault of the defendant, but from causes beyond his control. The misfortune falls upon him, under any aspect of the case, with sufficient severity,—for he is deprived of all freight, and his vessel is sold, as being unable to complete her voyage. The plaintiff on the contrary, received his goods, at Norfolk, in safety, and has little cause to complain.

      Mr. Radcliff, in reply, was requested by the court, to confine his remarks to the fourth plea. In relation to the first and second pleas, therefore, he merely observed, that there was not enough stated in them, to enable the court to determine any material question, which the defendant sought to raise therein; they merely asserted, that the plaintiff received 1ns goods at Norfolk, without stating any reason why the voyage was not prosecuted to its termination. The plaintiff, for ought that appears, took possession of his goods at Norfolk, because they were abandoned by the defendant, and no inference at all, prejudicial to his claim, can be drawn from the facts of his having taken possession.
    As to the parties to the contract, it is clearly a covenant, he said, between the plaintiff and the defendant personally ; no other persons are bound by it, but each of the contracting parties has made himself responsible for his covenants. An action in the name of Living could not be maintained, and of course, the present is well brought in the name of the plaintiff.
    With regard to the fourth plea, it has not answered the allegation of the second count, (which is all important, and upon which the ultimate fate of the case may depend,) that the vessel was unseaworthy at the commencement of her voyage. The traverse contained in the plea, will not assist the defendant’s direct allegations of facts, nor aid what is defectively stated; it merely denies, that the vessel was not seaworthy, whereas, it should have asserted affirmatively as a fact, that she was seaworthy at the commencement of the voyage. In his traverse, the defendant merely negatives negative allegations, and nothing is put in issue by them. The traverse merely excludes a conclusion, and is in the nature of a protestando. As the plaintiff cannot take issue upon the traverse, so neither can the defendant aid a defective inducement by it. In this case, the inducement is a material part of the plea, and should state all the facts on which the defendant relies. [Arch. Plead. 207, 8. 189, 90. 202. 4. 6. 9, 10. 238, 9. 235.]
    The inquiry then is, whether the inducement presents a bar to the plaintiff’s right of recovery 1 It states that the vessel put into Norfolk of necessity; but it does not state that that necessity was occasioned by sea damage. It asserts no fact inconsistent with the allegation, in the declaration, that the vessel was unseaworthy when she left New-York. Non constat, but that the very necessity which caused the brig to put into Norfolk, was the direct consequence of her unseawortliy condition when she left New-York ; and we consider the fourth plea, therefore, as insufficient to bar the plaintiff’s right of recovery.
   The Court gave judgment for the plaintiff on the first, second, fifth and sixth pleas, and for the defendant on the fourth, ]eaye party to amend his pleadings at discretion; the defendant, by withdrawing his insufficient pleas, and the plaintiff, by taking issue on the fourth plea.

[A. G. Rogers, Att'y for the plff. J. L. Mason, Att'y for the deft.]


text:
    John Wheelwright versus Joseph D. Beers.
    The declaration in this case, (the same mentioned in the preceding one,) set forth a charter-party, whereby the defendant stipulated, that the brig Champion, of which he was the owner, should perform a voyage from N. Y. to Omoa and bach for the plaintiff It then averred a performance of all the covenants on the part of the plaintiff, and assigned, as a breach of the defendant’s covenant, that the vessel did not proceed to Omoa, but put into Norfolk. That the defendant did not despatch her thence, but neglected and refused so to do, contrary to the effect of the charter-party.
    The defendant interposed a special plea, admitting the charter-party, the sailing of the vessel, and that she put into Norfolk ; but averring that said vessel was so much damaged by the perils of the sea, that it became necessary that she should put into the nearest port, and that she accordingly put into Norfolk, as a port of necessity. That while there, she was examined for the purpose of ascertaining what repairs were requisite to enable her to proceed on the voyage, when it was found necessary, that she should be sold for the benefit of all concerned,—that she was sold accordingly, and so, and not otherwise, the voyage aforesaid, was by the mere perils of the sea, broken up and prevented, “ absque hoc, that the said vessel ought to have proceeded on her said voy- “ age,” &c.
    To this plea the plaintiff replied, admitting the injury to the vessel, the putting into Norfolk, and the breaking up of the voyage there, but averred that the voyage was not broken up by the mere perils of the sea, &c. “absque hoc, that “ the vessel was examined at Norfolk, to ascertain the repairs necessary to “ enable her to proceed on her voyage,” &c., as alleged by the defendant, and concluding to the country.

    Held, that the issue joined by these pleadings, was upon the fact stated in, the inducement to the plea, whether the voyage in question was broken up by the mere perils of the sea; and that it involved necessarily, an inquiry, as to the seaworthiness of the vessel;—the special traverse in the plea, and in the replication being considered immaterial and informal.
    The jury having returned a verdict in favor of the plaintiff upon this issue, it was also held, that the rule of damages to be adopted, was the difference between the prime cost of the cargo at New-York, and the net amount for which the goods were actually sold, after the voyage was broken up, no notice being taken of the loss of the market at Omoa.
    Newly discovered evidence, which is cumulative merely, is never the ground of a new trial, especially where a part of it was in the knowledge of one of the witnesses, examined at the trial, but not disclosed by him.
    A covenant made by J. W. as agent for J. L., will support an action in the name of the former, although he has no interest in the subject of it• and the declaration may allege the damage to have been sustained by J. W,

      After judgment was pronounced in the preceding case, the plaintiff filed a replication to the fourth plea, and the cause was Upon ^lie jssues tendered by the replications to the third and fourth pleas. The plaintiff’s reply to the third plea, admitted, that the vessel, while pursuing her voyage, was, by the force and violence of the winds and waves, and by damages from the perils of the seas, so much injured, that it became necessary that she should put into the nearest port, that she did put into Norfolk, ás a port of necessity, and that the voyage from New-York to Omoa, was then and there broken up and prevented. But the replication averred, that the “ voyage was not broken up and prevented by the mere perils “ of the seas,” in manner and form as the plaintiff had alleged, “ without this, that the said brig while at Norfolk aforesaid, was “ duly examined, with a view to ascertain the repairs expedient “ and necessary to enable her to proceed on her said voyage, and “ it was then and there found necessary to sell said brig, for the “ benefit of all concerned, and the said brig was then and there “necessarily sold for the benefit of all concerned,”' and concluded to the country.
    The replication to the fourth plea, admitted, that the vessel, while prosecuting her voyage, was compelled to put into Norfolk, as a port of necessity, and that said voyage was then and there broken up ; but denied that the voyage “ was broken up by the “mere perils of the sea,” “ without this, that the said brig, while at “Norfolk, was duly examined, with a view to ascertain the re- “ pairs expedient, and necessary to enable her to proceed on said “voyage, and it was then and there found necessary to sell said “ brig, for the benefit of all concerned, and the said brig was then “ and there necessarily sold,” and concluded to the country.
    At the trial of the cause, (which was before the Chief Justice,.) the counsel for the plaintiff stated, that under the pleadings, as understood by them, the defendant had admitted the execution of the charter-party, and the commencement of the voyage ; but alleged, by way of defence, that it was broken up by the mere perils of the seas. That the plaintiff had taken issue on that allegation, and it would appear in evidence, that the voyage was broken up, not by the perils of the sea, but by the unseaworthiness of the vessel.

      The counsel for the defendant, in reply to this suggestion, stated that, according to their understanding of the pleadings, the seaworthiness of the vessel was admitted by the plaintiff, and that the facts to be passed upon by the jury, were set forth in the formal traverses contained in the replications.
    The Chief Justice decided, that the issues tendered by the replications, were substantially the same, and that they presented an affirmation on the part of the defendant, and a denial by the plaintiff, that the vessel was compelled to put into Norfolk by the mere perils of the seas. To this opinion the counsel for the defendant excepted.
    As the affirmative of the issues was thus cast upon the defendant, he proceeded to call witnesses and produce testimony, to show that the putting into Norfolk, and the subsequent sale of the vessel, were caused by sea damage, sustained by the vessel, between the fourth and eight of September, in a violent gale of wind.
    It appeared that a survey was held upon the vessel after her arrival at Norfolk, which, after pointing out particular defects in the vessel, a part of which were the result of sea damage and a part not, concluded by recommending a sale of the vessel for the benefit of all concerned. The principal question of fact, presented to the jury under this part of the case, was as to the seaworthiness of the vessel at the time she left New-York. The testimony of the officers of the vessel, and several others, was very strong, to show that the voyage was broken up by damages received during the gale, while the surveyors and some shipwrights were of opinion, that certain defects, exhibited when the vessel was examined at Norfolk, could not have been the result of sea damage, but must have existed at the time the vessel sailed from New-York, and that these defects rendered it inexpedient to repair the vessel, after the injury sustained from the gale.
    It appeared also, that the cargo put on board the vessel at New-York, belonged to one John lAving, that the plaintiff had no interest in it, but acted as the mere agent for the owner. A part of this cargo, (which was invoiced at 3,744 dollars,) was sold at Norfolk, after the voyage to Omoa was broken up, and the remaining parts shipped to the plaintiff at New-York, and sold by him there. The loss upon these sales, including the charges, amounted to 1000 dollars. The plaintiff also called witnesses, to show what the probable amount of the sales of said cargo would have been at Omoa, and the defendant produced countervailing testimony on his side.
    Upon these facts, the defendant contended- that the plaintiff should be non suited, because it appeared by his own showing, that he had no interest in the cargo, and could not be-entitled to recover any damages, for the causes alleged’in the declaration. This -motion was overruled by the presiding Judge, and the defendant excepted to the- decision.
    The counsel for the defendant then objected to all the evidence, which tended to show that the cargo belonged to Living, upon the ground that such proof did not support the declaration; but this objection was also overruled.
    The Chief Justice charged the jury, that although the issues formed by the pleadings, were not in form upon the unseaworthiness of the vessel, yet that they necessarily involved that question. That if. the damage_s, sustained by the vessel, could have been repaired at- an expense justifying, such reparation, then that the owner was bound to repair and send her on the voyage ; if she could not .be so repaired, then that she was lost through the mere perils of the sea, unless she was:so rotten and unsound, as not to admit of the necessary repairs, in which case the loss could not be imputed to the mere perils of the seas.
    Upon the question of damages, the Chief Justice desired the jury, (if they should find a verdict in favor-of the plaintiff,) in the first place, to ascertain the difference between the-invoice prices of the articles shipped, and the net amount of the sales of the same articles after they were delivered to the plaintiff, or his agents ; and in the second place, the difference between the net amount of said sales,, and the prices which the articles would have brought-at Omoa, leaving the amount of damages to be fixed by the court upon a case made. This suggestion, as to the .damages, being assented to by the parties, the jury returned a verdict for 2,500 dollars in favor of the plaintiff; estimating the loss of the market at the port of destination, at 1,500 dollars, and the actual loss by the sale, at 1,000 dollars.
    Either party having had leave to make a case upon the record and facts, the defendant accordingly prepared one, which each party had leave to turn into a special verdict or bill of exceptions.
    The cause was now argued by Mr. Ketcham, and Mr. Sullivan, for the defendant, and by Mr. Mason and Mr. P. W. Radcliff, for the plaintiff.
    For the defendant, it was contended, I. That the plaintiff, by omitting to reply to the traverses set forth in the pleas, had admitted the truth of the matters therein contained, as stated by the defendant, and that the Judge mistook the issue joined by the pleadings. [Stephen on Plead. 188. 209. 234. 215. 220. 228. 1. Saund. 22. n. 2. 1. Chitty on Plead. 596. 8 Cowen’s R. 653. 716. 1. Phil. Ev. 141. 3. Cranch’s R. 187. Doug. 733. 3. Easts’ R. 192.]
    II. That the declaration was not supported by the proof. The testimony showed that the cargo of the vessel belonged to John Living, and not to the plaintiff The declaration is in the name of Wheelwright, and alleges, that the damages were sustained by him,; it is not supported by the proof, and the charter-party itself, shows the variance. [1. Liv. on Agen. 12. 6th Binn. Rep. 228.]
    III. That the loss of the profits, which might have been realized at Omoa, ought to be deducted from the amount of the verdict. [3. Johns. Cas. 218. 3. Caines’ R. 219.]
    IV. That the verdict was against the evidence, and that the defendant was entitled to a new trial, upon the ground of newly discovered evidence. [2. J. R. 124.] In support of this last point, the defendant read the affidavit of a witness, examined by him at the trial, stating certain facts, which were omitted by him on his examination, and tending to show, that the vessel was sea-worthy when she left New-York.
    For the plaintiff it was contended, I. That the issues presented by the replications, were upon the fact, whether the voyage was broken up by the mere perils of the seas; and under those issues, it was competent for the plaintiff to prove, the unseaworthiness of the vessel, and the formal traverses, contained in the pleas, were such as to compel the plaintiff to traverse the matters contained in the inducement to these pleas. [1. Saund. 22. n. 2. Arch. Plead, 202. 208. Stephen 198. 211. 287. 258. 1. Chit. 587. 597. Com. Dig. Pl. C. 3. 13. Mass. R. 520. 8 Cowen’s R. 716.]
    II. That whatever informalities or defects there might be in the replications, it was too late after verdict to object, to them, especially as the cause had been tried on its merits. [1. J. R. 509. Com. Dig. Pl. C. 1. Chitt. 623. Thos. Ray. 86. 2. Saund. 439. 1. Ib. 103. n. a. 2. J. R. 466.]
    III. That the court having decided upon the demurrer to the fifth and sixth pleas, that the plaintiff was entitled to sue upon the charter-party, and that John Living was not; it followed, that all the damages recoverable for a breach of the covenant, contained in the charter-party, were recoverable by the plaintiff. [6. Cowen’s R. 261.]
    IV. That the plaintiff was entitled to recover for the loss of profits at Omoa, as well as for the loss attendant upon a resale of the cargo; and that the verdict was supported by the evidence. [8. J. R. 164. 213. 14, Ib. 170. 15. Ib. 24. Pothier on Ma. Con. sec. 1. art. 2. p. 30. also, Poth. on Ob. 159. Cushing’s Trans.]

    V. That the defendant was not entitled to a new trial on the ground of newly discovered evidence, the testimony offered being that of a person examined on the trial, and cumulative merely, going only to impeach the testimony of other witnesses, and being otherwise insufficient, and relating to matters in the knowledge of t the witness, at the time of his examination as a witness in cause. [3. J. R. 269. 8. Cow. R. 223. 4. Johns. R. 425. 5. Ib. 248. 2 Caines’ R. 129. 8. J. R. 64. 15. Ib. 201.]
   Oakley J.

The first count of the declaration in this case, sets forth a charter-party, whereby the defendant stipulated, that the brig Champion, of which he was the owner, should perform a voyage from New-York to Omoa, and back to New-York.. The count avers a performance of the covenants contained in the charter-party, on the part of the plaintiff, and then assigns, as a breach of the defendant’s covenant, that the said vessel did not proceed to the port of Omoa, but put into Norfolk, and that the defendant did not"despatch her on the said voyage, but neglected and refused to do so, contrary to the effect of the charter-party.

To this count, there was a special plea, which admits the charter-party, the lading of the cargo on board, the setting sail of the brig on the voyage, and her putting into the port of Norfolk, as stated in the count; but avers, that the vessel w:as so much damaged by the perils of the sea, that it became necessary for the safety of the cargo and crew, that she should put into the nearest port, and that she did put into Norfolk as a port of necessity; that while there she was examined, to ascertain the repairs necessary to be made, to enable her to proceed on the-voyage; that it was found necessary for the benefit of all concerned, that she should be sold, and that she was accordingly sold, and that “ so, and not otherwise, the voyage aforesaid, from New-York to Omoa, was, by the mere perils of the sea, broken up and prevented ;” without this, that the said vessel ought to have proceeded from Norfolk, on her said voyage, and that the defendant ought to have despatched her on the voyage, and that he neglected and refused so to do, &c.

To this plea, the plaintiff replied, and admitted the injury to the vessel, by the perils of the sea, and her putting into Norfolk as a port of necessity, and that the voyage was there broken up and prevented, but averred, that “ the said voyage was not broken up “ and prevented by the mere perils of the sea, and not otherwise,” in manner and form, as alleged by the defendant, without this, that the vessel was examined at Norfolk, to ascertain the repairs necessary to enable her to proceed, and it was found necessary to sell her, and that she was sold as alleged by the defendant, and concluded to the country.

At the trial of the cause, the Judge held that the issue joined by these pleadings was upon the fact, whether the voyage in question was broken up and prevented by the mere perils of the sea, and that it involved necessarily the inquiry, as to the seaworthiness of the vessel. The defendant now contends, that the issue really joined, was embraced in the allegation contained in the formal traverse in the replication, to wit, whether it was found necessary, upon an examination of the vessel at Norfolk, for the interest of all concerned, to sell her, and whether she was sold accordingly, and that by the state of the pleadings, the seaworthiness of the vessel was admitted by the plaintiff. If the position of the defendant is correct, it is clear, that the issue joined is not only an immaterial one, but that there has been no trial of it, and that the present verdict cannot stand.

It seems to be a well settled rule in pleading, that “ where a “ material point alleged by one party, is fully confessed and avoided,—that is, when the other party sets up a matter consistent with “ such allegation, but which if true is an answer to it, then he “cannot also traverse it.” [1. Saund. 22. n. 2.] In the case now before us, the material allegation in the declartion, assigningthe breach of the defendant’s covenant is, that the vessel did not proceed to Omoa. The defendant’s plea admits the fact, but sets up by way of avoidance, a number of circumstances, all resulting in the general and precise allegation, that the voyage was broken up and prevented by the mere perils of the sea. After thus admitting the actual breach of the covenant, as set forth in the declaration, and setting up a ground of legal excuse for such breach, it was not competent for the defendant, in any special traverse, to question the fact of such breach. Nor do I consider the plea of the defendant as in truth doing so. The special or formal traverse avers, that the vessel ought not to have proceeded on the voyage to Omoa, and that the defendant ought not to have despatched her on such voyage. These averments are clearly matters of law, and are not under any circumstances traversable, and must be rejected altogether.

It is further averred, that the defendant did not neglect and refuse to despatch the vessel on her voyage. This allegation is not in terms inconsistent with the fact before stated, that the vessel did not proceed to Omoa, but that the voyage was broken up at Norfolk. It in truth amounts to nothing more than saying, that the defendant did not neglect or refuse to despatch the vessel, because he was released from the obligation to do so, in consequence of the injury sustained by the perils of the sea. If the averment is to be considered as equivalent to an allegation, that the vessel did proceed on her voyage to Omoa, then it is entirely repugnant to, and inconsistent with the previous averments of the plea. The whole plea is founded on the admitted fact, that the voyage was not performed, and the defence is rested' on the ground that there was a legal and sufficient excuse for not performing it. I consider the averment, that the defendant did not refuse to despatch the vessel, after admitting that the voyage was broken up at Norfolk, and assigning the fact of sea damage as the reason for breaking it up, as altogether immaterial, and rendered senseless and unmeaning.

The rule is, that the inducement to a special traverse is not in general traversable, yet when the special traverse is not to the point, or substance of the action, or in other words, is immaterial, the other party may pass it by, and traverse the inducement. [Arch. on Pl. 208.] This rule seems to be exactly applicable to the present case. The averment contained in the special traverse, that the defendant did not refuse to despatch the vessel,.presented no sensible or material issue to the opposite party, and there could have been no trial, ón such an issue, of the merits of the case, to wit, of the sufficiency of the excuse of the defendant, for breaking up the voyage.' Under such circumstances, it was proper for the plaintiff to- pass by that averment, and take issue on any fact alleged in the inducement, which involved, the whole ground of the defence. The fact was, that the voyage was broken up by the mere perils of the sea; on that the plaintiff has taken a precise and formal issue, but has added to the - replication, without any necessity or object, as far as I can discern, a special traverse, denying the fact alleged in the inducement to the plea, that the vessel was examined at Norfolk, and that it was found necessary to sell her, &c. This special traverse is manifestly as unnecessary and immaterial, as that contained in the plea. It could form no issue upon the merits of the controversy, for-it could never have been determined on such an issue, whether the necessity for selling the vessel, arose from sea damage only, or from that and unseaworthiness combined, and a verdict on an issue so framed, would have decided nothing. This special traverse, therefore, in the replication, being informal and immaterial, may be disregarded.

Neither party having demurred-to the pleadings of the other, on the ground of informality or repugnance, it is the duty of the court to look at the record as it stands, and ascertain, whether any material issue appears upon it, and if such a one is found, to confine the parties to it on the trial, rejecting all immaterial averments. I think the Judge in the present case, was correct in considering the special traverse, both in the plea and replication, as informal and immaterial, and in confining his attention to the only fact stated in the plea, and put in issue by the replication, which fairly opened the door, for a full investigation of the merits of the controversy between the parties.

I have not thought it necessary to examine the question, as to the fourth special plea, (which is to the second count of the declaration,) and the replication to it. If my view of the issue, under the pleading to the first count, is correct, the verdict being general, and the evidence in the case applicable to it, the plaintiff is entitled to judgment, although no issue, or an immaterial one, was joined under the fourth plea.

The second principal point involved in the case, relates to the rule of damages. It is contended, by the plaintiff, that he is entitled to recover the difference between the prime cost of the goods at New-Yorlc, and the net value of them at the port of destination. The defendant contends, that the true rule, is the difference between the prime cost at New-York, and the net amount, for which the goods were actually sold at Norfolk, after the voyage was broken up.

In Watkinson v. Laughton, [8 J. R. 213,] there was an action of assumpsit on a bill of lading, signed by the defendant as master of the ship. The goods were shipped at Liverpool for New-York} and on the arrival of the vessel, it was found that a part of the goods had been embezzled, but without any fault on the part of the captain. It was contended by the defendant, that the true rule of damages, was the invoiceprice of the goods. The plaintiff claimed their value at New-York. The court held, that the defendant must answer for the goods, according to their clear net value at New-York, and they say, that this rule is in furtherance of the policy of the marine law, which holds the master responsible as a common carrier, and Spencer J. remarked, that the policy of the law, in like cases, in making the master liable, is to induce him to employ honest men in his service.

In Amery v. M'Gregor, [15 J. R. 24,] the action was assumpsit, on a contract to transport goods from Liverpool to New-Orleans. The court, in that case, recognized the rule of damages adopted in Watkinson v. Laughton, and sustained the verdict of the jury, which gave the plaintiff eighty per cent, advance, on the invoice prices of the goods, being the value of like goods at New-Orleans. In Brachett v. M'Nair, [14 J. R. 170,] the defendant agreed to forward, for the plaintiff a quantity of salt from Oswego to Queenston. He failed to perform the contract, and the rule of damages, was the difference between the value of the salt at Oswego and at Queenston, and the court say, that such a rule was no more than giving an indemnity to the plaintiff, for the injury sustained. In these cases, the Supreme Court seem to have settled the rule, which must govern us in the present instance. The contract in the case now before us, was, that the vessel should proceed to Omoa, and there deliver her cargo. That was the place to which both parties looked for the completion of the contract, and the direct injury sustained by the plaintiff, was the loss of the increased value of the goods at their destined port. I am unable to distinguish this case, in principle, from those above cited.

3. The defendant also contends, that the proof in the case showy, that the goods laden on board of the brig, under the charter-party, were the property of one Living, and not of the plaintiff, and that there can be no recovery, by the plaintiff, for damages sustained by the failure of the defendant to transport these goods to Omoa. This point was formerly before us, in this cause, on a demurrer to a plea, setting up the ownership of Living in the goods, and presenting the question directly, whether the present plaintiff could sustain an action, on this charter-party, for the benefit of Living. We held that he could. The point having been adjudged in this court, must be considered as disposed of here. If it were otherwise, the question could never arise in the form in which the defendant now presents it. The lading of the cargo on board, by the plaintiff under the charter party, is averred in the declaration, and the fact is admitted in terms by the plea. It would not be competent, under such a state of the pleadings, for the defendant to set up or prove, that the plaintiff had no interest in the cargo.

4. It is also contended, that the verdict is against the weight of evidence. On this head it is sufficient to remark, that there was much conflicting proof, all of which was'fairly submitted to the jury, and it is, therefore, a case in which their verdict ought to conclude the parties.

5. The defendant also moves for a new trial, on the ground of newly discovered evidence. Without remarking on the singular circumstance, that the witness, by whom the newly discovered evidence is to be given, did not disclose the facts now sworn to be within his knowledge, at the trial, when he was called to give his opinion as to the state and condition of the vessel, it is sufficient to say, that the evidence which is said to be newly discovered,is strictly cumulative, and cannot, therefore, upon the authority of numerous cases, decided by the Supreme Court, be the ground of granting a new trial.

That part of the foregoing opinion, which relates to the rule of damages, was the opinion of Judge Oakley merely, and not that of the court. The court gave judgment, in favor of the plaintiff, for 1000 dollars, being the difference between the actual sales and ’the invoice price of the goods, the loss of the market at Omoa, being deducted from the verdict of the jury. The loss on the sale of the goods, at Norfolk and New-York, was considered as the true rule as to damages, upon the ground that there was no fault or fraud, on the part of the defendant, from which the loss arose, and that the case shows only a breach of the implied warranty of seaworthiness.

Judgment in favor of the plaintiff for 1000 dollars.

[A. G. Rogers, Att'y for the plff. J. L. Mason, Att'y for deft.]

Note.—See Rogers v. Niagara Ins. Co. ante. p. 86.