source: Caselaw Access Project

author: Per curiam.

license: Public Domain

text:
    Benjamin De Forest and Alfred De Forest versus John Jewett and Samuel Parsons.
    Oct. Term, 1828.
    In a suit against two defendants, founded upon a joint cause of action against both, one of the defendants cannot defeat the action by pleading, in abatement, matters which are applicable to himself alone. To make a plea in abatement effectual in such a case, all the defendants must unite in the plea, and it cannot be interposed by one alone.
    In an action of assumpsit against the defendants, Jewett <§■ Parsons, for money had and received, the former appeared by his own'attorney, and pleaded the general issue ; while the latter, by a separate attorney, appeared and pleaded, in abatement of the tohole suit, the pendency of certain foreign attachments in the state of Connecticut, which had been issued against himself alone. Upon demurrer to this plea, it was held to be bad, the cause of action not being covered by the plea.
    This was an action for money had and received, by the defendants, to and for the use of the plaintiffs. The declaration contained the usual money counts, together with a count upon an insimul computassent.

    The defendants severed in their defence ; and Jewett appearing^ by his own attorney, pleaded the general issue, and gave notice of set-off. Parsons, the other defendant, appeared by a separate attorney, and pleaded in abatement of the suit: That on the 23d day of March, 1827, at the city of New-York, David Cromelien and David Davies made an assignment of certain goods and effects therein specified, to the defendants in trust, to be converted into cash, and distributed among certain creditors of Cromelien & Davies ; amongst whom were the plaintiffs and Charles Belden and George Belden. That the defendants accepted the trust, received the effects assigned, converted the same into money, and proceeded to distribute the funds among the creditors of Cromelien & Davies, according to the terms of the assignment. That before the commencement of this action, to wit, on the 25th day of June, 1827, at New-Haven, in the county of New-Haven and state of Connecticut, four several actions were commenced, by writs of foreign attachment, against the said Charles Belden and George Belden, by certain of their creditors, as absent * absconding debtors. That said writs, for the equal and joint benefit of all the attaching creditors, without any priority amongst the same, were, on the said 25th day of June, served on the said Parsons, who' was then in New-Haven ; and thereby, according to the laws of the state of Connecticut, attached all the monies, goods and effects of the said Charles Belden and George Belden, which were then in the hands of Parsons, to satisfy the claims of the said attaching creditors. The plea then averred, that all the money and effects of Charles and George Belden, in the hands of Parsons, at the time of the service of the said writs, were held by him under and by virtue of the assignment from Cromelien & Davies; and that nothing had been received by him since that time, under said assignment. That, at the time of the service of said writs, the claims of all persons under the assignment, except those of the plaintiffs and of the said Charles and George Belden, had been satisfied; and that at said time there were, and still are, funds in the hands of the said John Jewett, received under said assignment, more than sufficient to pay and satisfy the claims of the plaintiffs ; and that the said Parsons is not otherwise indebted to the said plaintiffs, than by reason of the funds so received under said assignment, and so attached in the state of Connecticut. The plea then further averred, that the attaching creditors had recovered judgments in the state of Connecticut, on their several suits against the said Charles and George Belden, to a greater amount than that demanded by the present plaintiffs in their declaration; and that executions were taken out upon said judgments, and demand made of the said Parsons, in the state of Connecticut, of the moneys, goods and effects in his hand, belonging to the said Charles and George Belden. .That writs of scire facias were thereupon issued, by the attaching creditors, against Parsons, and duly served on him, requiring him to show cause why the amount of said judgments should not be levied out of his proper goods and estate ; which writs of scire facias were issued before the commencement of this action, and are still pending and undetermined.'-igThe defendant therefore “ prayed judgment of said writ and declaration, that the same might be quashed.”
    To this plea the plaintiffs demurred; and Mr. Hugh Maxwell, in support of the demurrer, now contended,
    I. That tiie plea was bad in substance. That the proceedings in Connecticut, disclosed by the plea, being between different parties, asserting distinct rights, to which these plaintiffs were entire strangers, could interpose no bar to the present action.
    II. That there was no privity between the plaintiffs and C. & G-. Belden; the rights of the ^parties not being connected with, nor dependent upon one another. If the creditors of the Beldens were to succeed in drawing out of the hands of Parsons, all'the funds he holds in trust for them, it could in no way affect the rights of the present plaintiffs against the defendants in this suit, as set forth in the declaration. The plaintiffs have declared upon a joint promise, express or implied, made by both defendants, and must prove the promise as laid, or fail in their action, upon the trial. A recovery in Connecticut against Parsons, by the creditors of C. & G. Belden, could not be pleaded in bar of the pre-. sent aoticn ; for, a former recovery, to be available as a defence, must be for the same cause of action, and must be sustained by the same evidence. [3 Wil. Rep. 304. 1 Chit. Plead. 553.]

    III. The rights upon which the actions are founded, are different. Parsons is here sued jointly with Jewett for a joint debt; but the matters pleaded in abatement, affect Parsons only.* Jewett pleads the general issue, and puts himself upon that defence ; while Parsons interposes a plea, which, if it can be sustained, overreaches the issue tendered by his co-defendant, and ousts him of his defence, by abating the whole suit. This cannot be done ; for the plea does not go to the cause of action set forth in the declaration. It is no defence against the claim upon Jewett ; and, as the action is brought to recover a joint debt, the plea, to be available, must be set up by both defendants jointly. But &o¿/i defendants, even, could not plead 'that jin. abatement, which is sufficiently only for one ; for in such case the plea would be ^ad as to both. [1 Chit. Plead. 545.] Jewett has never been called upon by the courts of Connecticut to surrender up the funds in his hands, and the proceedings against Parsons alone are of no avail to him. In no point of view, therefore, could this plea be maintained, unless the proceedings in Connecticut had been against both trustees, and the defence were to be set up by both jointly.
    IV. But even if the plaintiffs were bound by the proceedings in Connecticut, there still could be no reason for abating the present suit; for the plea expressly admits, that there are funds in the hands of the defendants sufficient to satisfy the demands of the plaintiffs, and of the Beldens also. The present action being joint against both defendants, there can be no apportionment of the funds in their hands, so far as this suit is concerned; but each defendant is liable for the whole amount of the claim. Each being then constructively in the possession of funds to the full amount of the plaintiffs’ demand, there could be no good ground for this plea, even if well founded in other respects.

      Mr. Staples, for the defendant, Parsons.
    This is an action brought against the defendants, as co-trustees. One of the trustees, Samuel Parsons, being accidentally in Connecticut, was served with a legal process, out of the courts of that state, according to its laws, by certain creditors of C. & G. Belden, whereby he was commanded not to surrender up any of th'éWunds in his hands, to the cestuy que trusts, but to hold the same, subject to the final orders of the court issuing the process. There can be no pretence but what these proceedings were well founded, and that the courts of Connecticut had aright to issue such process. The question then arises, whether any other person interested in the fund, can call upon the trustee, until the result of the proceedings in Connecticut can be known. Can tins court anticipate the result of the judgment of the tribunal now exercising its jurisdiction over the same subject matter 1 It may be, that Parsons will be compelled, by the courts of Connecticut, to surrender up the whole of the funds in his hands, belonging to Cromelien & Davies, for the benefit of the creditors of C. & G. Belden. . This court cannot know judicially, nor even by presumption that such will not be the result of the proceedings in Connecticut; and if Parsons shall be compelled by the judgment of a court of competent jurisdiction, to surrender up all the funds in his hands, how can this tribunal call upon him again for the same fund 1 Can he be made twice responsible for the same trust % Until the result of the proceedings under the foreign attachment can be known, Parsons ought not to be harassed by the suit of other persons, interested in the fund, nor be placed in peril of twice answering for the same trust. The principle on which this plea is founded, has been expressly recognized by the Supreme Court of this state, in the case of Embree v. Hanna, [5 John. Rep. 193.] and it cannot be resisted by any arguments founded either in justice or correct principles of law.
    Payment under a foreign attachment is a bar to another suit., though the plaintiffs in the latter are trustees, under an attachment made before the commencement of the foreign attachment suit; [Holmes v. Remsen, 4 John. Ch. R. 460. Same case, 20 John. R. 229.] and a judgment has the same effect, [Hull v. Blake, 13 Mass. R. 153.] and may be given in evidence unde the general issue in assumpsit. [Mc. Daniel v. Hughes, 3 East, 367.]
    In the case of Le Chevalier v. Lynch, [Doug. 170.] the court put off the case on application of the defendant, to enable him to send abroad for testimony, that a prior suit by foreign attachment had been brought against him. [See note to 4 Cowen, 521.]
    If payment be a bar, it follows that an action pending is good in abatement. [Embree v. Hanna, supra.] And it is sufficient if the proceedings in Connecticut are according to the laws of that state, though not of this. [Hull v. Blake, supra.] If they are not, the plaintiffs should have shown that fact by replication, or it must appear from the plea itself. It does not appear from the plea, unless the court can say, that it is contrary to the laws of Connecticut to attach funds in the hands of one of two joint trustees. This defence should have been set up in Connecticut, where the suit is now pending ; for if the plaintiffs succeed there, whether according to law, or contrary tojaw, the defendant Parsons, must be a sufferer.
    It is of no consequence that the proceedings in Connecticut are not between the same parties, for the question at issue, relates exclusively to the fund. If another tribunal has power over that, this court will never compel this defendant to respond twice for the same fund. Neither is it any answer to the plea, that this is a joint action for a joint debt: because that fact cannot prevent the court in Connecticut from exercising its jurisdiction over the funds in the hands of Parsons. He is only answerable for the money in his hands, and that may be entirely taken away from him by the judgment of a court having competent jurisdiction over the subject matter. Each trustee is liable for the funds, which have come into his hands, and for nothing more ; he cannot be made responsible for the acts of his co-trustee. If this be so, then Parsons ought to be permitted to set up such a defence as shall protect him, without any reference to Jewett, for whom he is in no way responsible.
    But it is said, that the funds in the hands of both trustees, are sufficient to discharge the demands of all persons interested in the assignment, and therefore, there can be no hardship in the case. It does not follow from these premises, that Parsons has money enough under Ms controul to satisfy the claims of all the cestuy que trusts. If he had, there might he force in the remark; but the danger is, that all the effects in his hands may be taken from him in Connecticut, and he still be made answerable in this action for the default of Jewett, his co-trustee. If the fund in the hands of Parsons be exhausted, there can be no just ground for making him liable to these plaintiffs, to whom he is in no way indebted, except under the assignment.
   Per curiam.

This action is broughtagainst twodefendants,founded upon a joint contract by both. The declaration counts upon a joint promise, and at the trial, this promise must be proved expres sly as laid, or the plaintiffs will be liable to be nonsuited. One of the defendants pleads the general issue; while the other interposes a plea in abatement to the whole suit, founded upon matters, which are applicable merely to himself. This plea cannot be sustained; for the cause of action being joint, against the two defendants, nothing can abate the suit, which is not pleaded by both. One of two joint defendants cannot plead any matter in abatement of a joint suit, which is applicable to himself alone; for the plea, in such case, does not reach the whole cause of action. The plea must be sufficient to defeat the suit against both defendants; and to accomplish that, the joint defendants must unite in the plea, Here the defendant, Parsons, pleads the service of a process of foreign attachment upon him alone in Connecticut, and'sets it up by way of defence to an action against himself and Jewett, founded upon a joint promise by both. To make this defence available in any point of view, both defendants must unite therein-

The plea may be considered as defective in another particular.. There is no averment, that the suit pending in Connecticut, is for the same debts, or on the same promises, which are set forth in the declaration. The plea avers,that Parsons (individually) is not indebted to the plaintiffs upon any other account than for the funds in his hands under the assignment. The promises here relied on, are the joint promises of both defendants, and may be entirely distinct from those specified in the plea.

The principle, upon which the defendant intended to rest his plea, is doubtless correct, both in its general equity and by express adjudications. Had the process of foreign attachment in Connecticut been served upon both defendants, and had they joined in the plea, their defence to the action must have been effectual. If the funds in the hands of a trustee are withdrawn from him by the authority of a court of competent jurisdiction, he never can be called upon by any other tribunal for the same money. But here the defence must fail, because the defendants have not united in the plea which is interposed. There must be judgment for the plaintiffs on the demurrer ; but the defendant has leave to withdraw his plea on payment of costs, and to answer over.

Judgment for the plaintiffs on the demurrer.

[W. P. Hawes, atty for the plffs. W. S. Johnson, atty for the deft Parsons. J. W. Gerard, atty for Jewett.]

Note. The authorities upon the subject of pleas by several defendants may be found collected in Archbold’s Pleadings, 338. 255. Chit. Plead. 447., 553. and in Steph. on Plead. 270. This last author in a note observes, “ it is said, that several defendants cannot sever in dilatory pleas and for this he cites Hob. 245.


author: Per Curiam.

text:
    David Ashworth et al. versus J. M. Wrigley.
    Oct. Term, 1828.
    Where the defendant has obtained a discharge under the act “ to abolish imprisonment for debt,” after the commencement of the suit, the plaintiff will be permitted to discontinue without costs,though the defendant, relying upon a defence to the/onn of the plaintiff’s action, offers to waive Ins discharge.

      Mr. D. Graham, for the plaintiffs in this cause, moved for leave to discontinue without costs, thé defendant having since the commencement of the suit, obtained a discharge under the insolvent act. [Laws N. Y.vol. 5. sess. 42. p. 115.]
    The motion was opposed by Mr. Ketcham, for the defendant, upon the ground that the motive for discontinuing, was not founded upon the discharge, but upon the fact, that the action had been commenced in such a way, that it could not be sustained. The plaintiffs’ true remedy, he said, was by an action of account; but they had brought assumpsit, for goods sold and delivered, which could not be maintained.
    The defendant, relying upon the defence presented by the form of action, was ready to waive the discharge altogether, and would stipulate not, to interpose it as a defence in any shape.
   Per Curiam.

The motion must prevail as a matter of course, and is always granted by the Supreme Court in like cases. The only doubt originates in the defendant’s offer, to waive Ms discharge : but it does not appear, that he has any defence to the action, except as to its form. The court will not,' therefore, drive the plaintiff to the expense of a litigation, which can never draw in question the real merits between the parties. - ’

Motion granted

[D. Graham, Jun, atty for the plffs. Ketcham & Fessenden, attys. for the defts.]

         Vide Honeywell v. Burns, 8 Cow. 121. Merritt ads. Arden, 1 Wm. 91.


text:
    Joseph Wolfe versus Abraham R. Luyster.
    Oct. Term, 1828.
    The first count of the declaration set forth, that the defendant, (An auctioneer) received certain goods of the plaintiff, to be sold for him, under an agreement, not to part with or dispose of them,- below a certain stipulated price, and that in violation of this agreement he had sold the goods for a sum below that to which he was restricted, and had not accounted for the proceeds.
    The second account alleged, that the defendant received the plaintiff’s goods for sale, and agreed to “ render, as the amount brought By said goods, the full sum of §500.” The breach assigned was, that the defendant had not rendered a just account of the goods, nor paid the,‘ full sum of five hundred dollars.”
    Upon a general demurrer to these two.counts, the first was held to be good in substance, although defective for duplicity in assigning the breach: but the second count was held to be bad on the face of it, for the want of an averment of the sale of thé goods. '
    A defect for duplicity, in pleading, cannot be taken advantage of by a generSl demurrer, but it must be specially pointed out; and upon general demurrer to two or more counts, if one be good, there will be judgment for the plaintiff
    It is not unlawful to place goods in the hands of an auctioneer for sale, with directions that he shall not part with, or dispose of the same, unless they produce a particular sum ; the restriction not being considered as an unlawful means ■ of enhancing the price of the goods, or as an imposition upon fair purchasers.
    This was an action of assumpsit, against the defendant (who was an auctioneer) for selling certain goods <?f the plaintiff, at a price below that to which he was limited, and also for not accounting for the same when sold.

      The declaration contained two special counts ; a-count for goods sold and delivered, and the usual money counts. The first count sets forth, that the defendant, “ being a public auctioneer, or in the habit and custom of selling goods at public vendue,” “ in consideration,, that the plaintiff would deliver to the defendant divers goods to .be sold by him, for and on account of the “ plaintiff,” &c. “ undertook and promised, to sell and dispose “ of the said goods” “ at and for no less money, than a certain rate and fixed price set thereon by the said plaintiff,” “ and ” which the defendant agreed to obtain,” “ as the just and true “ estimate of the plaintiff’s value of said goods“ the said de- “ fendant being strictly charged not to sell or dispose of the said “ goods in any other manner whatever : and the said defend- “ ant undertook, and faithfully promised, that he would not “ make sale, or dispose of said goods, otherwise than as he was “ charged and directed ; and thereupon undertook, and faithfully “ promised, to render a just and true account of the sale of said “ goods,” &c. to the plaintiff, a'nd pay him thereon, the full sum “ of five hundred dollars, (being the full amount of the price set “ on the said goods by the plaintiff as aforesaid,) whenever, after “ the sale thereof, the said defendant should be thereunto re- “ quested.” “ That the said plaintiff, confiding, &c. did af- “ terwards, &c. deliver the said goods to the defendant,” “for “ the purposes aforesaid ; yet the said defendant not regarding “ his said promises, &c. did afterwards, &c. for and on account “ of the said plaintiff, sell and dispose of the said goods, without “ the assent or permission of the said plaintiff, for divers sums of “ money, in the whole amounting to a less sum than that to which “ he was restricted, and at a rate much less than that which the “ said defendant promised to obtain for the said goods.” The breach assigned was, “ That the defendant had not rendered “ to the plaintiff a just and true, or other account of the sales of “ the said goods, than that in the said last sale mentioned, nor “ had he paid the said plaintiff the difference of moneys thereby “ arising, and due to the said plaintiff, as in and by the said “ promises and undertakings,”. &c. “ although often request- “ ed,” &c.
    The second count alleged, that the defendant, in consideration that the plaintiff had delivered to him certain other goods, of the value of $500, to be sold and disposed of by the defendant, at a certain price set thereon by the plaintiff) “ and by the said “ defendant agreed to, as the lowest sum to be taken for the “ said goods, or for which the said defendant might sell and dis- “ pose of the same,” “ undertook to render, as the amount brought “ by said goods, thé full sum of five hundred dollars, whenever “ afterwards requested.” The averments then were, that “ al- “ though the defendant received the goods last mentioned, for “ the purposes last aforesaid, yet the said defendant had not ren- “ dered a just account of the said last-mentioned goods, nor paid “ the full sum of five .hundred dollars to the plaintiff, although af- “ terwavds requested,” &c.
    The defendant demurred to these two counts, generally, and Mr. J. W. Gerard, in support of the demurrer, contended, .
    I. That the first count was to be considered as a declaration, in substance, against an auctioneer for selling goods at a certain price, below that to which he had been limited by" the owner; This limit, he contended, could not lawfully be imposed, because it is expressly provided by statute, [2 R. L. 161. sec. 1.] that all goods sold at auction shall be struck off to the highest bidder. Here, the plaintiff sent his goods to the auction to be sold publicly, and directed him, at the same time, not to' allow them to be struck off, unless they brought the sum of five hundred dollars ; and the auctioneer assented to the restriction. This is the fair import of the contract, as set forth in the first count of the declaration ;. and the defendant is now called upon to answer for a violation of the restriction. In this point of view, he contended, that the action could not be sustained, the contract being against the statute, and against public policy.
    The law looks with a jealous eye upon all attempts to evade the fairness of sales by auction, and intends that they shall be absolute.- When goods are once publicly offered, the highest bidder has a right to become their purchaser ; and all contrivances to enhance their value, by unfair means, are unlawful. Hence,. “puffers” cannot be lawfully employed to swell the price of commodities at auction; and their interference renders such sales void. [2 Com. on Con. 218. 1 Ib. 37. 4 Cowen's Rep. 717. 3 John. Cas. 29. 6 John. Rep. 194. 8 Ib. 444.]
    In this case there could be no fair purchase, because the goods were not to be disposed of, unless they produced a specified sum. The sale was not to be absolute, but conditional. The highest bidder was to have the goods, provided he offered a sum sufficient to cover the owner’s limits. This was against all fair understanding at auctions, and imposed upon the purchaser, who of course would be ignorant of all limits and restrictions. The prohibition of the law, which forbids the employment of third persons to raise the price of goods unfairly, by pretended bids, extends to the auctioneer himself. He has no right to become the puffer, but must allow nothing but real and fair competition, among bona fide purchasers. [1 Com. on Con. 257. Bexwell v. Christie, Cowp. Rep. 395, 2 Kent’s Com. 425. 8 Term Rep. 93. 95.]
    Although there is- no express averment in the first count, that these goods were sold at auction, still, as the declaration is against an auctioneer, in his capacity of auctioneer, the legal intendment of the various allegations is applicable to him in that capacity.
    II. The second count is clearly bad, upon the face of it. It sets forth, “ that the defendant, in consideration that the plain- “ tiff had delivered to him certain goods to be sold and disposed “ of at a certain fixed price, undertook to render, as the amount “ brought by said goods, the sum of five hundred dollars,” without any averment as to the sale of the goods. It a ppears from this count, that the goods were delivered to the defendant, to be sold for a stipulated sum; and the gist of the action is, that he has sold them for a sum below that to which he was limited by the plaintiff. But as there is no averment of sale, it does not appear that the contract has been violated. It may be, that the defendant has not been able to sell the goods at all, and he may now have them on hand. At all events, there could be no breach of the promise set forth in this count, until after a sale ; and a sale must therefore be averred.
    As the plaintiff has sought to charge the defendant, as auctioneer, and to make him liable for a default in his particular business, the court will infer that the goods were sold at auction, and at á price below that to which the defendant was limited.

      Mr. Judah, for the plaintiff, contra,

    contended, that the objections raised to the first count of the declaration, could not properly be interposed as a defence to the action, that the employment of persons to enhance the price of goods, sold at auction, by fictitious bids, might lay the foundation of an action against the auctioneer, or might constitute a good defence, on the part of a purchaser, refusing to take goods struck off to him": but that neither the arguments used, nor the cases cited, were applicable to this case. .
    The allegation in the first count, that the defendant was an auctioneer, is matter of inducement merely, and cannot form the subject of demurrer. But suppose it were matter of substance, and suppose the goods were actually sold at auction, by the defendant, in the manner complained of by the plaintiff; there is nothing unlawful in this : ñor is.there any thing in public policy to prevent it. The declaration merely,states, that the goods were delivered to the defendant, to be sold by him, not below a fixed price. Any person having goods for sale, may deliver them to an auctioneer, with directions not to part with them below a certain sum ; and the auctioneer may set them up at that price, in the first instance, if he thinks it expedient ;■ or hé may allow them to be run up to the stipulated sum by fair competition. It is admitted, that the employment of “ puffers” is unlawful, and that a contract for the purchase of goods, under such circumstances, could not be enforced. '
    But the owner may lawfully give directions to the auctioneer, not to'part with his goods beloxv a certain sum, and any arts^resorted to afterwards, by the auctioneer for the sale of goods, could not make void the contract between him and the owner.
    The seller is not compelled to sacrifice his goods, because he ■ . t e e offers them at auction; but may put them up at a certain price,. and still" retain the advantage of fair competition.
    The plaintiff is willing to abide by the law as laid down in Bcxwell v. Christie, although by modern practice the strictness of Lord Mansfield’s rules have been considerably relaxed. An auctioneer, according to the adjudged cases, has a perfect right to set up his goods, in the first instance, at a certain sum, and then dispose of them to the highest bidder, if he exceeds the limits.
    This question was before the court of Common Pleas in the case of Hazel v. Dunham and others.

       That court held, that there was nothing unlawful in restricting an auctioneer to certain limits, and this opinion is supported by a case decided in Pennsylvania. [11 Serg. & Rawle’s Rep. 87.]
    The doctrine of Chancellor Kent, as laid down in his Commentaries. [vol. 2 p. 425.] does not apply tó a case like the present; but has reference entirely to the unlawful “ puffing” of goods at auction to enhance their prices.
    But the restriction set forth in the declaration, in this case does not apply to the defendant, in his capacity of auctioneer exclusively : he had a right to dispose of the .goods at private sale, but still the restriction would remain. We do not say that he has sold the goods at auction, for a sum below our limits; but the averment is, that he has sold the goods at a price below that to which he was restricted. In what manner he has disposed of them does not appear; and the court will not infer that they were sold at auction, unless such inference is inevitable.
    The two counts objected to, are framed from precedents given by Mr. Chitty in the 2d vol. of his treatise on Pleading, p. 162. The substance of the first count is, beyond all question, good, and if there be any defects of form, they should have been taken advantage of, by special demurrer. If either of the counts be good, the court will, upon a general demurrer to both, give judgment for the plaintiffs.

       The case of Hazel v. Dunham, was tried in the year 1819, before Peter A. Jay, Esq., then Recorder of the city of New-York. Considering the genera question presented by it as one of considerable interest in a commercial community, the reporter applied to Mr. Jay for a copy of the opinion delivered by him in that case ; and having been obligingly furnished with it, is enabled to present it to the reader at the end of-this volume.

   Per curiam.

The first count of the declaration is good in substance, although defective for duplicity, in assigning the breach of the defendant’s contract. His agreement was not in the alternative “ to render a just and true account, ” or “ to pay ” the sum set forth in the declaration. The same neglect to account was not, of itself, a breach of the defendant’s undertaking, and the action is evidently brought, to recover the difference between' the sum for which the goods were actually sold, and that to which the defendent was restricted. But a defect in the declaration for duplicity, cannot be taken advantage of by general demurer : it must be specially pointed out, and the defendant cannot therefore avail himself of it, in the present'state of the pleadings. ■ ■

If these goods were to be sold by the defendant at auction; it does not follow that the contract between the parties was corrupt, because the plaintiff limited the sale of his goods to a specific sum. It might be, that he directed the defendant to offer them at, or not below, a certain price; and there certainly would not .be any thing unlawful in such a direction. But the first count does not state that the defendant undertook to sell the goods at auction. It does not appear that they were not actually disposed of at private sale; and there is nothing in the declaration which compels the court to infer a sale by auction. The declaration, it is true, commences by setting forth that the defendant was an auctioneer; but there is no allegation that he received the goods as auctioneer, or that they were to be sold atpulic auction. The averment is, that the goods were disposed of for a sum below that limited by the plaintiff; but the capacity in which they were received, and the manner in which they were sold, no where appears upon the declaration. It comes then simply to this, that the defendant received a certain quantity of goods of the plaintiff, under an agreement that he should not part with them, for a sum below a particular amount specified. In violation of this contract, he- sold the goods at a price below the limits fixed by the agreement, and the plaintiff brings this action for the injury thus sustained. There is nothing upon this state of facts to prevent his recovery upon the first count.

But the second count is clearly bad upon the face of it. The contract, on the part of the defendant, was to sell the goods, and account for the proceeds : and it is evident that he cannot be in default before they are disposed of. He did not undertake to sell the goods, at all events; but his promise, as set forth in the declaration, was, not to part with them for less than a fixed sum; If, therefore, the goods have not been sold, the defendant is not yet answerable : and there is no averment in the second count of a sale of any kind either above or below the fixed limits, while the breach is for not accounting. Until a sale takes place there can be no violation of the contract; and as this count contains no averment of sale, it is clearly bad, for the want of it. But where-ever there is a general demurrer to a declaration, consisting of seeral counts, if any one of them prove good, there must be judgment for the plaintiff, in this case, therefore, as the first count is in substance good, there must be jifdgment for the plaintiff upon the demurrer.

Judgment for the plaintiff on the demurrer.

[S. B. H. Judah, atty. for the plff. H. M. Western, atty. for the dfft.]


author: The Court,

text:
    Joseph Barlow versus The Eagle Fire Ins. Co. of the City of New-York.
    Oct. Term, 1828.
    Taxation of costs. Preliminary proofs, in an insurance cause, are not to be taxed in the plaintiff’s bill of costs.
    The plaintiff cannot charge for drafting fas many’suipceitos as he has witnesses : but must prepare one draft, and from that engross the others.
    The attorney for the plaintiff in this cause, in preparing his bill of costs, charged for drafts and copies of the affidavits of five different persons, whose testimony was necessary to establish the preliminary proofs of the plaintiff, and also for administering the oaths. He likewise charged for the notarial certificate, copy and Seal, together with inventories to be annexed thereto, and copies to be served: and also for the draft of a separate subpoena for each witness summoned, and for engrossing copies for each subpaenaThese items being contested on the taxation, it was submitted to the court to decide, whether they were taxable, and to what extent.

      * Mr. Anthon, for the plaintiff, contended,
    j That the preliminary proofs were necessary proceedings in the cause, and therefore taxable. In Corlies v. Cummings [7 Cowen, 157.] the Supreme Court considered the words of the fee bill as entitled to a more liberal interpretation than was given to them in the case of Kenny v. Van Horn, [2 John. R. 107.] the statute being broader than the act on which that decision was founded. That the preliminary proofs are proceedings in the cause, within the meaning of the act, was evident from the fact, that they are to be produced at the trial, and the judge is to pass his opinion upon their sufficiency.
    II. That each subpoena under the seal of the court is a new writ, and taxable as such. It was not the mere engrossing of a prior writ: for each subpoena requires anew praecipe, and a new seal, and all the power over the witnesses named therein was derived from the indentical writ, and not from any prior writ, of which it is supposed to be an engrossed copy. That Iherefore every new subpoena, required in the cause, was taxable as a new writ.
   The Court,

however, disallowed all the items relative to the preliminary proofs ; but permitted the plaintiff to charge for drafting and engrossing one subpoena, and for engrossing one copy, to he sealed for every four witnesses.

[Edward Anthon, Atty. for J. O. Grim, Atty. for deft.]


author: Oakley, J.

text:
    Benjamin Harrod versus Francis Barretto, Jun., Charles N. S. Rowland, James B. Murray, and Samuel Wheeler.
    Oct. Term, 1828.
    In an action upon a judgment obtained in the courts of another state, it is competent for the defendant to show, by a special plea, that the court in which the judgment was rendered had no jurisdiction, either of his person or the subject matter. But every presumption is in favour of the jurisdiction of the court which rendered the judgment; and the plea must negate, by positive averments, every fact from which that jurisdiction might arise.
    Where, therefore, to an action of debt on a judgment obtained in the “ Court of Common Pleas for the county of Suffolk in the commonwealth of Massachuseets,” the defendants pleaded, that at the time of rendering the said judgment, and from the time of the commencement of the action upon which the same was fouuded, up to the time of its rendition, they “ were, and ever since have been, inhabitants and residents of the city of New-York,” and “never were inhabitants of, or residents in, the state of Massachusetts, nor subject or amenable to the laws” of that state, “ nor within the jurisdiction of any of its courts that “ the first process was never served upon them,” “ nor did they, or either of them, ever have any notice of said suit the plea was held to be bad upon demurrer, because it did not contain a direct and positive averment, that the defendants had not appeared in the suit in which the judgment was obtained.
    This was an action of debt on a judgment obtained by the plaintiff against the defendants, in the Court of Common Pleas for the county of Suffolk in the state .of Massachusetts. The defendant Murray suffered judgment to go against him by default, and Wheeler was returned by the sheriff, “ not found.” But Barretto and Rowland appeared and pleaded, “ that they ought not to be charged with the said supposed debt, by virtue of the said supposed judgment in the said declaration mentioned,” because “ at the time of the commencement of the suit in which the said supposed judgment was rendered, and at the time the said supposed judgment was rendered, and during all the time between the time of the commencement of the said suit, and the rendering of the said supposed judgment, the said defendants” “were, and ever since have been, inhabitants and residents of the city of New-York in the state of N. Y. and never were inhabitants of, or residents in the state of Massachusetts, nor subject or am enable to the laws of the state of Massachusetts, nor within the j urisdic - ¿ion of any of the courts thereof; and that the original process in the suit in which the said supposed judgment was rendered, was no otherwise served upon these defendants,” “ than by attaching a certain steam engine; and that the said first process xvas not served upon them, or either of them, nor read to them, or either of them; nor xvas any copy thereof left with them, or either of them; nor did they, or either of them, ever have any notice of the said suit.”
    To this plea there was a general demurrer.
    The cause was argued by Mr. E. C. Benedict and Mr. F. J. Betts, for the plaintiffj and by Hugh Maxwell, Esq. for the defendants,
    For the plaintiff it xvas contended,
    I. That ml tiel record,is the only proper plea to debt on judgment, except matters arising subsequently to the judgment.
    II. If any facts may be alleged against a record, the facts set up in this plea are not of that class.
    III. If the principle of the plea is good in its full extent, the plea itself is bad.
    By the constitution of the United States full faith and credit shall be given in each state, to the public acts, records, and judicial proceedings of every other state ; and the congress may prescribe the mode of proving such records, and the effect thereof. This power congress exercised in the act of May 26th, 1790, declaring that records authenticated as there prescribed, shall have such faith and credit given to them in every court xvithin the United States as they have by laxv or usage in the courts of the state from whence they are taken. These provisions have been brought before the Supreme Court of the United States; and that tribunal has. declared, that their letter and their spirit are the same. That the judgment of a court of a sister state is to have the same credit, validity (and effect, when sued upon here, that it xvould have if sued upon in the state xvhere it xvas rendered. And the same rules of pleading are to be applied here, as would be applied there. This court is then, pro hac vice, to be considered as a Massachusetts court, and its rule of decision is to be sought in the decisions of the Supreme court of Massachusetts, in actions upon the judgments of their own courts. The laws of the United States having declared, that the attributes with which the judgment of any state court may be clothed by the law of that state, shall be acknowledged and remain the same in every other state; the only inquiry is, what those attributes are— “ what is the effect of the judgment in the state where it was rendered.” [Const. U. S. art. 4. § 1. Laws U. S. 2d ed. vol. 2. p. 102. 7 Cranch, 481. 3 Wheat. 234. 2 Dall. 302. 1 Pet. Cir. Court Rep. 74. 155.]
    The court of common pleas of Massachusetts is a court of general jurisdiction, and the common law is the law of Massachusetts. By the common law the judgment of a domestic court of general jurisdiction is conclusive upon the parties, and cannot be denied, except by the plea of nul tiel record. This results from the nature of a record: it being the highest evidence: its preeminent attribute being that of undeniable truth. The record must be admitted or denied ; if denied it can only be by nul tiel record ; if admitted, there can be no defence except matters subsequent to the judg nent; for a party, cannot by his plea admit the existence of the record, and deny the debt. It is conclusive evidence of the existence and justice of the demand, and no averment can be allowed against it, or its obvious meaning ¡—against it, no witness can prevail. Even the want of jurisdiction in the court does not affectit, unless it appear upon the face of ,the record ; and then it is taken advantage of under the plea of nul tiel record. Erroneous judgments may be enforced till reversed. They cannot be avoided by plea. [Cowell’s Law dict. tit. Record. Jac. do. do. Co. Litt. 260. a. 1 Chit. Plead. 354. 481. 2 H. Black. 402. 2 Bur. 1005. 5 Mass. 94. 2 do. 535. 9 do. 469. 17 do. 545. 4 do 303. 5 do 448. 12 do. 270. 16 do. 532. 1 Pick. 435. 10 Serg. & Raw. 240. and cases before cited.]
    2. But if a special plea may be pleaded to debt on judgment, the matters pleaded must not be such as merely show the judgment erroneous, it being a settled principle, that judgments which are erroneous, stand in force, and may be executed or enforced by action of debt until reversed; and they cannot be avoided on account of error collaterally, or by plea. Yet the matters get up in this plea, if they affect the judgment at all, merely show ^ £0 pe erroneous. Error lies on a void judgment in any case. That the court had no jurisdiction,—that the defendant was absent, had no notice of the suit, nor any attorney to appear, may be assigned for error:—as error in law, if they appear on the record— as error in fact, if they do not, for any matter of fact, may be assigned for error, which if it appeared upon the record, would have proved it erroneous. The plea is therefore bad.—[13 Mass. 264. 9 do. 151. 4 Cow. 457. Bac. Ab. tit. Error. Vin. Ab. do. 2 Mod. 308. 2 Cranch 126. 4 do. 421. 10 Wheat. 199. 14 Mass. 233. 11 do. 413. 1 Arch. Prac. 246. 9 John. 159.]
    3. But if the plea be good in principle, it is still insufficient.
    The statement in the plea, that “ the defendants were not amenable to the laws or within the jurisdiction of the courts of Massachusetts,” is not a fact: it is a mere inference of law. We could not take issue upon it. If the plea does not contain facts from which that inference necessarily follows, then it is bad. The defendant must set up a defence totally inconsistent with the plaintiff’s right to recover. If this plea maybe true, and the court still have had jurisdiction, the plea is bad ; and as every presumption is in favour of the jurisdiction of the court, the record is conclusive of it, till it be clearly and explicitly disproved. [1 Chit. Plead. 519. 4 Cow. 292.]
    The appearance of the defendants would give the court jurisdiction : it must be therefore explicitly denied. [4 Cranch, 428. 15 John. 144. 8 Cowen, 314. 6 Wheat. 130.]

    The plea should also deny service of process upon, and notice to the other defendants, they being partners, it being a general rule, that where several are concerned in partnership, notice to one is notice to all [1 Camp. 82. 404. note. 1 Maule & Sel. 259.]
    The case of Shumway v. Stillman [4 Cow. 292.] decides this case. Sutherland, J. there says ,the plea may be literally true, and yet the defendant may have entered special bail in the action, and may have appeared and litigated the cause by attorney upon the trial, and the plea is therefore bad. The remark loses none of its force when applied to this case. This plea may be literally true, and yet all the defendants may have had notice that the suit would be commenced, and instructed their attorney to appear and confess the action. The other two defendants may have been in Massachusetts, been arrested, and, by virtue of general or special powers, put in bail for the whole, appointed an attorney for the whole, and made the best possible defence to the action. The truth of this plea is then perfectly consistent with the authorised appearance of an attorney for the defendants and with the fullest and most hostile defence of the suit. It is therefore bad.
    Mr. Hugh Maxwell, contra.

    There can be no doubt, that it is competent for a defendant against whom a judgment has been rendered in another state, to plead specially, in an action brought upon that judgment here, that he has never been within the jurisdiction of the court which rendered the judgment, and that he was never summoned by the service of any process upon him personally to appear and answer to the action. The judgment of such a court is conclusive upon the defendant, only when he has been personally notified to appear, or has subsequently submitted to the jurisdiction of the court. Where the action is commenced by the attachment of some article of property belonging to the party, according to laws which are peculiar to certain of the states, and particularly to those of New-England, the process is to be regarded as a proceeding in rein merely. The defendant cannot be concluded by it; for it may well be, that he has a good and just defence to the action; and yet, from an entire ignorance of the existence of the suit, all opportunity of interposing such defence may be totally cut off. It was never intended by the constitution of the United States, that “ full faith and credited” should be given to a judgment like this. But where the parties have all appeared, and have had full opportunity to protect their rights, in such cases a judgment rendered in one state of the union, is conclusive evidence in'every other state state. This is not only the true construction of that clause in the constitution upon which the plaintiff relies, but it is in strict accordance with adjudicated cases. Indeed, the question can scarcely be considered as open for discussion in the courts of this state. Our decisions have been uniformly in favour of the plea, and our courts have never considered a defendant as conciu¿e¿ by a judgment rendered by a court which had no jurisdict(ori) either of his person, or the subject matter of the controversey. To give this effect to such a judgment, would be in itself highly oppressive and unjust, and is not warranted by any sensible exposition of the constitution. The principle of this plea is therefore correct, and well supported by authorities! [15 J. R. 141. 19 “Ib. 162.” 4 Conn. R. 294.]
    The defendants are not concluded by the case of Mills v. Duryee, for this point is not decided there. The Supreme Court merely ruled that nil debet was not a sufficient plea to an actio n brought upon a judgment obtained in another state. But the question, whether the effect of such a judgment might not be avoided by a special plea, is expressly reserved. •
    The case from Peters’ Reports is not in point; for there the defendant had' appeared, and there can be no doubt that a subsequent appearance to the action may be tantamount to a previous personal summons to appear.
    As to the plea itself, there is nothing in the record which shows the defendants were partners, and no presumption to that effect can be drawn from it. Here is no evidence except that presented by the record, and there is no averment that the defendants were partners. They are not therefore to be prejudiced by any inference to be drawn from the facts set forth.
    But the plea is sufficient in itself. It denies all personal notice of the action in Massachusetts; it denies the jurisdiction of the courts of that state over the persons of the defendants, and sets forth clearly the manner in which the suit was actually commenced. This, of itself, is sufficient to show, that the action was commenced and prosecuted without personal notice of any kind to the defendants. But the plea goes further, and removes all doubt upon the subject, by averring that the defendants were never subject or amenable to the laws of the state of Massachusetts, nor within the jurisdiction of its courts. If the defendants had, sub- ' sequently to the commencement of the action, appeared and answered to the suit, then they would have been within the jurisdiction of the courts of Massachusetts, and amenable to the laws of that state. The plea therefore is sufficient, not only to show that the defendants never had personal notice of the action in Massachusetts, but to rebut every presumption of their having submitted to the jurisdiction^ of the court which rendered the judgment.
   Oakley, J.

This is an action of debt, on a judgment obtained by the plaintiffs, against the defendants, Barretto and Rowland, together with Murray and Wheeler, in the Court of common Pleas, for the county of Suffolk in the state of Massachusetts.

Barretto and Rowland appear in the suit, and plead, that at the time of the commencement of the suit, in which the said judgment was rendered, and from that time, to the time of rendering the same, they were inhabitants and residents of the state ofNew-York, and never were inhabitants or residents of Massachusetts. That the original process in the said suit, was in no other manner served upon them, than by attaching a steam engine : and that they never had any notice of the said suit.

To this plea there is a general demurrer.

In support of this dumurrer, it is contended, that the plea is bad, because it seeks to draw in question the validity or effect of a judgment; which, it is said, cannot be done, except by a plea of nul tiel record.

Previous to the decision of the case of Mills v. Duryee, [7 Cranch, 481.] the question, arising on this demurrer, repeatedly came under the consideration of the Supreme Court of this state. In Kilburn v. Woodworth, [5 J. R. 41.] that court held,-that a judgment, like the present, did not bind the defendant personally : that not being in the state of Massachusetts, he could not be served with process under the authority of that state, and that the attachment of his property could be considered only as a proceeding in rein and could affect only the property attached.

In Robinson v. Executors of Ward, [8 J. R. 90.] and in Fenton v. Garlick, [Ibid. 197.] the same doctrine was laid down, and it was again repeated in Pawling v. Executors of Bird. [13 J. 206.] which appear to have been decided before the publication of the opinion of the Supreme Court of the United States in Mills v. Duryee.

It was contended at the bar, that these decisions must be considered as overruled, by the judgment of the Supreme Court of the United States, in Mills v. Duryee. In that case it was held, that nil debet was not a good plea to an action founded on a judgment of a court of another state. The Supreme Court of this state has had occasion to determine the effect and operation of that decision.

In Borden v. Fitch, [15 John. 140.] all the cases on the subject are reviewed. The decision in Mills v. Duryee, was particularly considered ; and it was held, that it decided nothing more, than that a judgment was conclusive, “ where the defendant was arrested, or had in some way appeared.” Again, in Andrews v. Montgomery, [19 J. 164.] the court say, that the case of Mills v. Duryee, was never intended to be carried so far as to preclude a party from showing that a judgment against him had been obtained fraudulently; or that the court had. not jurisdiction of his person. And it is declared, that the authority of that case must be received with that qualification. In the mote recent case of Shumway v. Stillman, [4 Cow. 292.] the action was debt, on a judgment obtained in Massachusetts.

The true doctrine, then, as derived from the case of Mills v. Duryee, in connexion with these decisions of our Supreme Court, .seems to be, that where it is intended to deny the existence of the judgment in pleading, it must be done by the plea of nul lid record; that the plea of nil debet is not good, and that the consideration on which the judgment was rendered, cannot be enquired into under such a plea; but that, when the record itself is admitted, its effect between the parties in an action on it, in another state, may be defeated by a special plea, denying the jurisdiction of the court; or averring fraud in obtaining the judgment.

After such a long and uniform course of decisions on this subject, by a court of supreme jurisdiction, the question as to the general character of this plea, cannot be considered an open one, in this court, and it is unnecessary to enter more minutely into an examination of the numerous cases bearing upon the point. It is sufficient to say, that the doctrine of our Supreme Court is in accordance with the uniform course of decisions in the courts of the other states on this subject.

It is contended, in the second place, that if the principle of the plea can be supported, it is defective in its averments, as it does not allege enough to show that the court in Massachsetts had not jurisdiction of the persons of the defendants.

It is said in Shumway v. Stillman, (and there can be no question of the correctness of the remark) that every presumption is in favour of the jurisdiction of the court which rendered the judgment. The record is prima fame evidence of it. The plea then must negate every fact from which that jurisdiction might arise ; and that by direct averment, and not by way of inference.

The plea in question avers, that the defendants were inhabitants and residents of New-York, during the whole time from the commencement to the termination of the suit in Massachusetts : and that no process in the suit was ever served on them. The latter averment is immaterial. If the defendants were never within the territorial jurisdiction of Massachusetts, no process could have been personally served on them. In Kilbourn v. Woodworth, the Supreme Court say, “ the domicil of the defendant was in this state, and being in person here, he was not and could not be served with process from the court in Massachusetts.” The plea also avers that the defendants never had notice of the suit. This, I also consider an immaterial averment. If issue were taken on it, and it were found for the plaintiff, it would not follow that jurisdiction of the persons of the defendants would be thereby established, because that notice may have been served upon the defendants while inhabitants and residents of New-York. In that case the actual service of notice would have been a mere nullity. If the court in Massachusetts could not have acquired jurisdiction of the persons of the defendants, by the service of formal process out of the limits of that state ; much less could it have been done by the service of any other notice.

The only material averment, then, in this plea, is that the defendants were inhabitants of New-York, from the commencemeiii to the end of the suit in Massachusetts. The same averment, in substance, was contained in the plea in Shumway v. Stillman; and the Supreme Court held it bad, because it did not aver, that the defendant had not appeared to the action. An appearance by attorney, would have given the court in Massachusetts, jurisdiction of the persons of the defendants. And such may have been the case in the present instance, for any thing alleged in this plea, unless the averment of want of notice of the suit, is equivalent to an averment of no appearance in it. This cannot be, unless by way of inference merely, as it has already been shown, that there may have been actual notice of the suit, under circumstances in which it would have been altogether inoperative.

The plea also contains an averment, that the defendantswere never subject or “ amenable to the laws of the state of Massachusetts, nor within the jurisdiction of any of the courts there- “ of.” This is mere matter of law, and cannot be pleaded. No issue could be taken on such an averment. Whether the court in Massachusetts had, or had not jurisdiction of the persons ofthe defendants, must be determined by the fact, either of their domicil in that state, or by their voluntary appearance to the action commenced there.

This plea, then, ought to have contained a direct and positive averment, that the defendants had not appeared in the suit, in which the judgment in question was obtained. This averment, coupled with that of their residence in the state of New-York, would have covered the whole ground of defence, and clearly shown, that the court, rendering the judgment, could not have had jurisdiction of the persons of the defendants.

The result is, that there must be judgment for the plaintiff on the demurrer.

Judgment for the plaintiff on the demurrer, with leave to the defendant, to amend their plea.

[Betts and Benedict, attys. for the plff. W. P. Hawes, atty. for the dffts. Barretto and Rowland.]


text:
    Samuel Penny and others versus Isaac Van Cleef.
    Oct. Term, 1828.
    An application to amend the declaration, will at all times be granted upon payment of costs, where such amendments .do not operate as a surprise upon the defendant, nor subject him to injury. But the defendant, in such a case, will be permitted to withdraw his pleas, and plead again, de novo.

      Mr. C. C. King, in behalf of the plaintiffs, at the last August term of this court, moved for leave to amend the declaration in this cause by inserting special counts therein.

      Mr. G. W. Strong, for the defendant,
    opposed the motion; and contended, that if the application were granted, that the plaintiffs ought to stipulate to accept a common notice of set-off, instead of special pleas, if such pleas should finally be required for the defence. But the court ruled, that the plaintiffs had a right to amend their declaration, as a matter of course, before plea pleaded, upon payment of costs ; and they therefore granted the motion.
    And now, at this term, after the defendant had put in his pleas, Mr. King again moved for leave to amend the declaration a second time, stating as a reason, that a mistake had been made in setting out the quantities of certain goods specified in the special counts, for which promissory notes had been promised, but never . * i i furnished. -*

      Mr. G. Griffin, for the defendant,
    stated, that he had a judgment against the plaintiffs for an amount equal^to^their claim : that the promise to give a promissory note was denied, and that the real object of the plaintiffs was to avoid the set-off.
   Per Curiam.

The plaintiffs are entitled to the effect of their motion, as a matter of course: an application to amend never being refused where it does not operate as a surprise upon the defendant, nor subject him to injury. The plaintiffs, however, must pay the costs of the motion; and the defendant has leave to withdraw his pleas, and plead again de novo. He cannot be subjected to any injury by the amendments, because he will have every opportunity to shape his defence according to the exigency of the case.

Motion granted on payment of costs.

[C. C. King, atty. for the plffs. G. W. Strong, atty. for the deft.]


author: Jones, C. J., Oakley, J.,

text:
    Josiah Dow versus The Hope Insurance Company.
    Oct. Term, 1828.
    Insurance upon goods, outward and upon their proceeds home, will not cover the same goods on their return voyage.
    Insurance was effected upon goods from New-York to Batavia, and “ upon the “ proceeds thereof home : the goods valued at the sum insured out; the policy “ to be open on the proceeds home.” The identical goods shipped to Batavia •were returned to New-York in the same vessel, and damaged upon their return voyage : Held, that they were not protected by the policy during the voyage homeward.
    This was an action of assumpsit, on a policy of insurance upon three cases of merchandise, containing, principally, artificial flowers, silk goods and muslins, “ at and from New-York to Ba- “ tavia, and other ports in the island of Java, and at and from “ thence back to New-York.” The insurance was “ upon goods “ as permargin out, and upon the proceeds thereof home ; the goods “ valued at the sum insured out; the policy to be open on the “ proceeds home at 3 1-2 per cent.—to return 1-2 per cent, should “ Batavia only be used, and the risk end without loss.”
    The sum underwritten was $4000. The cause was tried at the August term of this court, before Mr. Justice Oakley. Upon the trial it appeared, that the goods insured were laden on board the ship Braganza, transported, without injury, to Batavia, (at least, there was no evidence from which the contrary could be inferred,) and there put under the charge of a Mr. Kintzing, to whom they were consigned. While the ship remained at Batavia, the consignee being unable to dispose of the goods, and finding from the state of the markets in Java, that there was no prospect of selling them to advantage, ultimately sent them back again to New-York by the same vessel which carried them out, consigned to the plaintiff by a new bill of lading. It did not distinctly appear from the evidence, whether the goods were landed at Batavia or not, but if landed, the cases were never opened there. Upon the voyage homeward, the goods were injured, apparently by aleak through the deck of the ship ; and this action was brought to recover the amount of the damage.
    The declaration counted solely upon the loss sustained during the homeward voyage. Upon this state of facts the counsel for the defendants contended, that the policy did not attach upon the same goods homeward, and moved for a non-suit. But the presiding judge, for the purpose of causing the facts of the case to be ascertained by the jury, that the questions of law might afterwards be deliberately considered by the whole court, denied the motion, and charged the jury, that if they were satisfied that the goods were damaged on the return voyage, they should find a verdict for the plaintiff. To this opinion the counsel for the defendants excepted, and the jury found a verdict for $1000 in favour of the plaintiff.

      At the trial there was also a question as to the sufficiency of the preliminary proofs, which consisted, 1. Of the protest of the master of the Braganza, made upon her arrival at New-York: 2. The bill of lading, (dated at Batavia, July, 1826,) consigning tpe gOOC|g to the plaintiff: 3. & 4. The certificates of the port wardens of New-York, of their survey of the goods at the request of the plaintiff: 5. A notice from the plaintiff to the defendants of his intention to appraise, and sell the goods at public auction, under the inspection of the wardens on account of the defendants : 6. The appraisement of the goods : 7. An account of the sales of the same.
    These proofs being objected to by the counsel for the defendants, as insufficient to show interest in the assured and the loss, were ruled by the presiding Judge as prima facie sufficient. And he refused to non-suit the plaintiff upon this objection.
    The defendants now moved for a new trial, upon the ground,
    1. That the preliminary proofs of loss and interest were insufficient.
    2. That the policy by the terms of it did not attach upon the homeward cargo; and that therefore the plaintiff was not entitled to recover.
    Upon the argument of the cause, the court having intimated an opinion that the bill of lading was sufficient proof of interest in the plaintiff, prima facie, the first point was abandoned by the counsel for the defendants.
    Upon the second point, Mr. David B. Ogden, for the defendants, contended, that the nature and quality of the goods furnished evidence that the defendants never intended to insure the same goods to Batavia and back to New-York. He admitted, that the policy was to be construed according to the intentions of the contracting parties; but contended that it could never have entered into the contemplation of either party, that the same goods would come back from Batavia in the same vessel which carried them out. They were not shipped abroad for the purpose of being brought back in their original form and condition; but were to be disposed of; and the proceeds of such disposition were to be returned to New-York. The very word, “proceeds,” indicates something besides the original goods, and shows that the parties contemplated that the outward shipment, consisting of delicate goods, would be converted into oilier goods, (probably the usual produce of the Island of Java) to be returned home as. ' proceeds.

    One evidence of intent is drawn from the fact, that the outward goods were valued, while the policy upon the proceeds was open ; clearly indicating that the parties supposed that the outward shipment, whose value was known and fixed, would be converted into other things of unknown and uncertain value.
    The defendants (he said) were willing that a liberal construction should be given to the word used : and it might perhaps be held to mean any thing, except the identical goods themselves.
    The case of Whitney v. The American Ins. Co. [3 Cowen. 210.] was perfectly consistent with the construction contended for by the defendants. There the plaintiff effected insurance upon a quantity of wine to Batavia, and upon its proceeds home. The consignees not being able to sell the wine immediately, received it on deposit, and advanced a sum of money thereon, with which a return cargo was purchased. The court held that the plaintiff was entitled to recover for a loss upon the homward cargo, upon the ground that it was to be considered as the proceeds of the outward shipment. The money advanced upon the deposit of the wine was not a personal loan to Whitney; but an advance produced by the merchandise deposited for sale. But for the wine, the homeward cargo could not have been procured, and thus, the latter was considered, as the proceeds of the former. But no court ever held, that the identical goods insured could, by any construction, be considered as the proceeds of themselves.

    The defendant would not, for the premium paid in this case by the plaintiff, have insured goods of a delicate fabric from New-York to Batavia, and upon their proceeds home, if they could, for a moment, have supposed, that the outward shipment would come back in an unchanged condition, and be considered as covered by the policy. The plaintiff himself never contemplated this state of things; and the word proceeds could, not, even by a forced construction, be made to sustain the claims advanced by his counsel.

      Mr. George Sullivan, for the plaintiff'
    observed that the only ques-^on ^ that cause was whether the policy, attached to the goods insured on their homeward voyage they being the same, which were carried out. The construction, he said, to be given to the contract depended upon the intention of the parties; and if that was clearly indicated by the words of the policy, the court would so construe the words as that they should cover the intent.
    The term proceeds is synonymous with returns. In common parlance, the word means that, which is produced by the sale of goods; it would literally mean money. But this meaning could not have been that understood by the parties ; neither did .they mean bills of exchange, which represent money in the mercantile world. When we ascertain the sense in which the parties themselves understood their own language, we shall be able to put a correct construction upon the words of the policy.
    The. contract of insurance is a contract of liberal indemnity, and the court are only called upon to carry the intention of the parties, in that respect, into proper effect. It is perfectly certain, that it was not the intention of either party that the outward shipment should come back in any form uninsured. The plaintiff paid his premium upon the voyage round; and that affords evidence that the defendants considered themselves bound to indemnify him for all losses upon the shipment by the perils insured against, in whatever fonn the same might return to New-York. The policy, it is true, is valued upon the goods outward, but it is open upon their return.' The reason for this obviously was, to .protect the underwriters: that in case the proceeds of the shipment should exceed the valuation outward, the assured should .not recover an amount beyond that valuation.
    There is an obvious incongruityin the use of the word “proceeds and the court is only called upon to put such a construction upon the language used as will cover the real intent of the parties. If it .can be supposed, that the plaintiff paid,and the defendants receivthe whole premium upon these goods for an entire voyage from New-York to Batavia, and from thence back to New-York, under any supposition, that they could possibly return uninsured and unprotected, then, perhaps, the possible contingency hasoccured. This case is upon all fours with that of Havens v. Gray [12 Mass. 71.] and we do not ask the court to go beyond the good sense of that decision, and the analogous one cited from the 3d of Cowen.
    The counsel for the defendants in those cases contended, for the same narrow construction which is contended for here, and the court refused to adopt it. Why? obviously because the words would bear a liberal construction without violence, and because such a construction would cover the intent of the parties, without imposing any burden upon the defendant, which, by the terms of the contract, he was unwilling to assume.
    So. in this case : The object of both parties was indemnity to the plaintiff for any loss occuring by the perils insured against, upon his shipment to Batavia, and back to New-York. No matter in what form the outward goods might come back. That was a matter of indifference to the defendants, while the sole object of the plaintiff was, to protect his property, under all circumstances, and in every situation, within the bounds of the contemplated adventure. By adopting the construction contended for by the defendants, the intention of the parties will be defeated, and manifest injustice done to the plaintiff.
   Jones, C. J.,

after stating the facts of the case.

The question in this case is, whether the policy attached upon the goods for the return voyage or not: and the solution of that question turns upon the construction to be given to the term “ proceeds.” The grammatical sense of the term is the substituted cargo, or property, whatever it may be, which results from, or is acquired by means, of the specified goods. It imports a sale, barter, or other disposition of the outward cargo, or some operation therewith, by which, or by the future investment of the moneys or funds derived therefrom, other goods or insurable property are obtained, on which the policy is to attach for the return voyage. It does not necessarily follow, that the operation is to be effected by a sale or absolute disposition of the goods: the term, by a just and liberal construction, will fairly embrace any insurable interest, which the outward cargo, by any arrangement, enables the assured to procure for the return voyage. On that principle the Supreme Judicial Court of the state of Massachusetts, in the case of Havens v. Gray, [12 Mass. 71.] where the insurance was upon a specified cargo outwards, and the proceeds of that cargo homewards, held, that a return cargo procured by money and credit advanced upon the outward cargo by a factor, with whom the goods were left for sale on the owner’s account, was covered by the policy. The court in that case repelled the narrow construction of the term contended for there by the defendant’s counsel, and held, that the intention of the parties was to insure the returns of the outward cargo for the homeward voyage, and whether the return cargo was procured by the sale or exchange of the outward cargo, or by a credit raised upon the deposit of it, could make no difference to the insurers. Indeed, in a liberal sense of the term, the goods purchased by an advance or loan, on the deposit of the outward cargo, are truly the proceeds of such outward cargo ; for without that cargo, those goods could not probably have been procured.

The same principles governed the case of Whitney v. The American Insurance Company, in the Supreme Court of this state. (3 Cowen, 210.) There the insurance was on wine from Madeira to Calcutta, and on proceeds back; and a return cargo was purchased with money raised by a deposit of the wines. The court held, that the returns were the proceeds of the outward cargo, because the money could not be otherwise raised than by the deposit. And on the same principle, goods purchased by a loan effected on the security of the outward cargo, would be the proceeds or returns of the outward cargo, within the meaning of the contract, and the policy would attach upon them. These cases, and others, arose upon valued policies. The outward cargo had come to a dull market; no sale could be made, except at a ruinous sacrifice; and the advances of the consignees with whom they were deposited for sale, though to nearly the market value, were not sufficient to purchase a return cargo of equal value with the outward loading. And the complaint of the insurers was, that the assured was allowed to apply the valuation to a reduced cargo, which was intended to be applicable to one of equal value with that which was sent out. Hence the struggle they made was, to confine the meaning of the term employed in the contract to the proceeds of the sale, or the absolute disposal of the outward loading. But the courts in both cases held them hound by the terms of the contract to the valuation on the return cargo, as well as the outward, however inferior in value the returns might be ; requiring only of the assured, that the whole market value of the outward cargo at the port of destination should, as nearly as practicable, be invested in such returns. In framing the contract now under consideration, the parties manifestly had the policies in these cases, or one of them, in their eye; and this policy has taken them for its model. But to guard against the consequence of the valuation in the form used in those cases, the insurers have provided in their policy, that the valuation shall be restricted to the outward cargo, and that the insurance shall he upon the actual interest on board'on the homeward voyage. This was a prudent precaution, and an improvement on the former policies. In all other respects the clause is the same in substance with those which were the subjects of the adjudication in the cases of Havens v. Gray, and Whitney v. The American Insurance Company. It follows that the rules of construction applied to those policies are applicable to this. And it is contended, that the liberal principles advanced in those cases entitle the plaintiff" to recover in this case. I cannot deduce from either of those decisions any rule broad enough to embrace the case of an outward cargo brought back as it was originally shipped, Avithout having been changed or examined at the port of destination. The court, in the case of Havens v. Gray, in the course of their opinion, do say it is true, that the intention of the parties, by the clause in question, was to have insurance upon property on board out and home, and that the premium was taken with that -vícav. But the whole contract demonstrates the meaning of that part of then* opinion to be, that the property to which the court referred as the return cargo, was to be the produce of the outward loading, or goods purchased Avith advances or loans upon it. There is no intimation, in any part of the opinion, which encourages the extended construction now contended for, or gives the least countenance to the idea, that the identical goods themselves, composing the outward cargo in the precise state of the original ship- * ment, can in any possible sense of the term be the proceeds of those goods. On the contrary, the court appear to me very clearly to discountenance, if not wholly exclude, such an exposition; for they say that the memorandum means nothing more, in their apprehension, than that the underwriters took the risk homeward of any property, which might be substituted for that which was carried out. Can the sense which that court attached to the term be misunderstood 1 It was a substitute for the cargo earned out, and not the outward cargo itself, which was to compose the homeward cargo; and to my apprehension, such is the clear and obvious meaning of the policy. The parties both contemplated a change of cargo at the port of destination, and the manifest intention was, that the policy for the voyage home should attach on a new or substituted cargo, and not upon that, which was carried out. The term they have used, is the most appropriate, perhaps, that the language furnishes to express that sense and to define it with accuracy and precision. It so necessarily implies that the returns, to use an apt legal phrase, should be issues of the specified articles that no other meaning can be attached to it. As well might the talent, which the unfaithful servant hid in the earth, and kept unemployed until his master’s return, be called the proceeds or produce of that talent, as the identical goods carried out in the primitive state be termed the proceeds of those goods: they are obviously not the proceeds or the produce of the thing, but the thing itself. It is true, that a policy is a contract of indemnity, and such construction is to be given to the words employed in it, as will make the protection it affords co-extensive if possible, with the risks of the assured, during the voyage for which the premium is paid. And we are in interpreting the policy, but to adhere to the strict grammatical sense of the terms of it, and to coniine the construction to their literal meaning. Terms are often employed by the contracting parties to express their meaning, which, on a strict and narrow exposition of them, would defeat the intention of the parties, and disappoint the object of their contract. And I agree with the assured, that the rule of construction which should restrict him to the proceeds of the outward cargo, in the strictest sense of the tenn, would be too rigorous. If in any enlarged or general sense of the clause in question, the same goods, which composed the outward cargo, could, without undergoing any alteration, be understood to be the proceeds of those goods, the court might feel bound to give the contract that construction. But a just regard must be had to the language, which the parties employ, and no strained or unnatural sense must be ascribed to it, unless from necessity, to the prejudice of the rights of either party. And more especially is attention to be paid to the written clauses, which are introduced into the policy for special purposes. If these rules are observed, and any meaning is given to the words employed in the clause in question, how can this policy be made to attach on the outward cargo for the homeward voyage 1 Whether the landing and examination of the goods at the outward port, and the re-shipment of them there would have given the assured any stronger claim, or what change in the outward cargo would have brought it within a liberal construction of the terms of the policy applicable to the homeward cargo, are questions, which if, in any circumstances material, are unimportant in the present case. For it is admitted, that these goods were not examined, if landed, and underwent no change at their port of destination. If the insurance had been upon all goods on board the vessel on her outward and homeward voyages the same goods might have been covered all around.

And if this policy covers these goods on the homewaiti voyage, it is tantamount to an insurance on goods generally for the whole voyage, from the port of loading to the port of destination, and thence back to the port of departure. But that would be an unusual contract of insurance, and would expose the insurers to an increased risk, for which intelligent and discreet underwriters would require a much higher rate of premium. The objection to such a policy in that form would be the increased risk of damage to the goods from their continuing on board the ship for the double voyage. The condition of the cargo on its arrival at the port of destination, if bulk is not broken, cannot be known, and if the goods should be then in the incipient stage of decay, from sea damage on the outward voyage, or in a course of deterioration from time, or other causes, they might perish, or be greatly impaired in value by their continuance on board the vessel unchanged and without examination for another voyage ; when, if landed at the outward port, the damage would be light, and fresh goods, for a return cargo, would be subject to no injury, except from the perils of a homeward voyage. Hence it is, that insurers so greatly prefer to insure, and so generally use the form of insuring, at and from each port, both outward and homeward; thus securing to themselves a change of cargo, or, at least, the unlading necessary for reloading of the old cargo at the intermediate port. By the clause in question in this policy, and by using the term “ proceeds,” if a just exposition is given of it, they secure the same benefit; a change of cargo at the outward port, and guard themselves against the accumulated risks of secret damage and decay so incident to the long continuance of the same cargo on shipboard. These were the most cogent reasons, therefore, for the insertion of this term in the contract by the insurers and they are entitled to the full benefit of the protection it affords them, by making a change of cargo indispensable. The assured has no right to complain. A change of cargo must have been his intention, and the return of the same cargo could not have been contemplated. No liberality of construction can entitle him to such an extension of the contract; and he cannot, in my judgment, prevail in his action.

Oakley, J.,

stated the facts of the case, and proceeded as follows.

The point now submitted to the court, is, whether the goods in question were protected by the policy during the voyage from Batavia to New-York. I am of opinion that they were not.

In Havens v. Gray, [12 Mass. 71.] there was a valued policy of Insurance on cotton, from Portsmouth (New-Hampshire,) to a port" in Europe; the risk so attached to the proceeds of the articles insured, in the return cargo. The outward cargo was not sold, on its arrival at the port of destination, but was consigned to merchants at St. Petersburgh, for sale; who, in consideration of the consignment, advanced to the plaintiffs a réturn cargo, which was laden on board the ship, for the account and risk of the plaintiffs. The ship and cargo were lost on the return voyage to the United States, before any part of the outward cargo was actually sold.

The question was, whether the return cargo could he considered as the proceeds of the outward cargo, within the terms of the policy. The court held, that it ought to be so considered. C. J, Parker, says, “In a liberal sense the return cargo was the pro- “ ceeds of the outward cargo : for without the latter, the former “ would not probably have been procured. The consignment to “ the house at St. Petersburgh must be viewed as a deposit of the cargo with liberty to sell and reimburse themselves for the money advanced on the credit of the deposit.” And he held the meaning of the clause in the policy to be, that the underwriter took the risk home, of any property which might he substituted for that which was '<carried out. In Whitney v. The American Insurance Company, [3 Cow. 210.] there was an insurance on a quantity of wine out, and returns home. At the port of destination the wine was deposited for sale, and an advance made on such deposit with which the return cargo was procured. The court held, that this was equivalent to an actual sale' of the wine, and a purchase of the homeward cargo, with the money arising from the sale; and that the policy therefore covered the homeward, as the returns of the outward cargo.

These cases establish the doctrine that where the insurance is on the proceeds or returns of an outward cargo, the words must receive a liberal construction : and that it is not necessary that the return cargo should be procured by an actual sale of the out» ward cargo, and an appropriation of the money arising from-such sale. It is sufficient that the homeward cargo should be a substitute for the outward, and should spring, though indirectly, from the disposal of the latter, either by sale or -deposit; or that it should be procured on the credit, or in consequence of the duró ward cargo. But while these cases look to a liberal construction of these words in the policy, they do not lose sight of the necessity of adhering to the evident intent jbf the parties, and do not mean to intimate that any violence is to be done-to the plain letter ^ ^ contract. . They adhere to the spirit and terms of that contract, when they recognise the principle, that there must be an actual change of the outward cargo, and the substitution of a new cargo for it. 1

It has been attempted by the plaintiff’s counsel, to bring, the policy now under consideration within the principle of these eases ; but it is quite clear, that they have no application. Here there was no change of the outward cargo, nor was there any disposition made of it, which'can be considered equivalent to a Sale without the most forced construction. There was, it is true, a new bill of lading by the consignee.at Batavia, to the consign- or at New-York. But this was only intended to. revest the property in the consignor, which otherwise would appear to be in. the consignee, by virtue of the original bill of lading.

It is also clear, that there was no change of risk, as to the subject insured: but there was an extension of it beyond the time contemplated by the terms of the policy. It cannot be doubted, that the parties intended that the risk 911 the specific goods insured outward, should cease with the termination of the outward voyage '. and according to that expectation the rate of premium, and the amount insured, was regulated. The policy was a valued one, on the outward voyage ; but as tire amount of the proceeds, when invested in a return cargo, could not he known, it was necessarily left open on the homeward voyage. And it is quite manifest,, that a premium which might have been adequate to cover the risk on the specific goods (which may have been, and probably were, ¿of a- perishable nature) to Batavia, might be altogether inadequate,, if the risk were to be extended to their return to New-York.

It would seem, therefore, to be clear, looking solely to the spirit of the contract between the parties, that they intended that there should be an actual change of the goods insured, at thc-terminairon of the outward voyage ; and that neither party contemplaed the event of the same goods being returned to New-York. Indeed, the provision that the goods outward were valued, and the proceeds home left open, seems to be conclusive as to the intent and expectations of the parties in this respect.

If the construction contended for by the plaintiff’s counsel appears to be thus inconsistent with the spirit of the policy, it is certainly no less at war with its letter. If any meaning is attached to the word “proceeds,” it must certainly be something different and distinct from the goods themselves. And we are not at liberty to reject the word as surplusage, and consider the policy as a simple insurance on the goods out and home.

As, therefore, the risk assumed by the defendants on these goods terminated at Batavia, and as there is no evidence in the case to show that the injury was sustained during the continuance of the risk, there must be a new trial; or if the plaintiff elects, there may be judgment of non-suit entered.

The plaintiff elected to submit to a non-suit, and a judgment of non-suit was accordingly entered.

[A. G. Rogers, Att'y for the plff. I. A. Johnson, Att'yy for the defts.]

Note.—The plaintiff afterwards brought a new action upon the same policy, in the Supreme Court. Upon the trial of the cause before the Judge of the first Circuit, the plaintiff was again non-suited, and the Supreme Court afterwards refused to set the non-suit aside. It is understood that the cause hats been carried t'o the Court of Errors, where it is now pending.