source: Caselaw Access Project

author: Oakley, J.

license: Public Domain

text:
    Hugh McKeon versus James Caherty.
    Dec. Term, 1828.
    **• ¿ better, who has deposited money in the hands of a stake-holder, upon the event of a trotting match, cannot recover it back, by an action of indebitatis assumpsit. The transaction being illegal, no action can be sustained, by the common law, for any cause growing out of it.
    But, by the 5th section of the act to prevent horse racing, (1 R. L. p. 222.) any peison who has paid money upon the event of a race, may recover the same, “ in like manner as is provided in the second and third sections of the act to prevent excessive and deceitful gaming.” (1 R. L. 153.) By the second section of this act, any person losing at any game any sum above $25, and paying the same, may at any time, within three months, recover it back of the winner by an action of debt, founded on the act. As the remedy afforded to the loser is provided by statute, in pursuing that remedy, the forms and limitations prescribed, must be observed; and a general action of assumpsit will not lie.
    This was an action of assumpsit, brought to recover money placed in the hands of the defendant, as a stake-holder, upon the event of a trotting match.
    The declaration was in the common form, for money had and received, money paid, &c. Plea, the general issue.
    The cause was tried before Mr. Justice Oaklet ; and at the trial the plaintiff produced and read in evidence a contract in writing, between himself and one David Lane, of the tenor following, viz:
    New-York, August the 19th, 1827.

      “ Thirty-one days after date, David Lane, on the first part, and “ Hugh McKeon, of the second part, agree to trot six miles in “ harness, each man to drive his own horse, on the Jamaica tum- “ pike road, for the sum of two hundred dollars a side: two hun- “ died dollars, which is deposited in the hands of Mr. James Ca- “ herty, is to be forfeited in case they do not trot according to the “ above agreement.” DAVID LANE,
    HUGH McKEON.
    The plaintiff then proved that he had. deposited the stipulated sum in the hands of the defendant, as a stake-holder between the parties; and introduced several witnesses to show, that notice had been given to the defendant immediately after the match was performed, not to part with the money, in consequence of a dispute between the parties, as to which had won it.
    Upon this evidence the plaintiff rested his cause; and thereupon the counsel for the defendant' moved for a non-suit, upon the ground, 1st. That the wager was illegal, and the contract, therefore, void at common law. 2. That if any action could be sustained in this case against the defendant, it must be an action of debt, according to the provisions of the acts which give the plaintiff a remedy. 3. That the action was barred by the limitation prescribed in the act, not having been brought within three months from the time the money was deposited or lost by the plaintiff.
    The presiding Judge intimated an opinion, that the two first grounds of non-suit were well taken, but reserved the questions for the consideration of the whole court, and directed the defendant to enter upon his defence.
    The defendant then called David Lane and his wife, as witnesses, and offered to prove by them that Lane had won the match, and that he (the defendant) had in consequence paid. over the money to him, as the .winner, immediately after the match was performed. These witnesses were objected to, by the counsel for the plaintiff, as interested in the event of the suit, and therefore incompetent: and it was also contended, that the defendant could not go into the inquiry as to which party was the winner.
    The last objection was sustained ; but the first, as to the competency of the x witnesses, was overruled by the Judge, and an exception to his opinion taken by the plaintiff.
    The defendant then introduced several other witnesses, to show that the judges of the match had decided that Lane was entitled to the money, and that he had, in consequence, paid it over to him, on the evening after the match was performed,, and before any notice was given to him by the plaintiff to retain the deposit. Upon this last point, the testimony was not perfectly clear.
    The Judge charged the jury, that for the purposes of this ac-lion, their verdict would depend upon the fact, whether the money deposited in the defendant’s hands by the plaintiff, had been paid over to Lane by the defendant, before notice, and in good faith. jp they should find that he had parted with the deposit against the decision of the Judges, and with a proper knowledge as to what that decision was, he would then have acted in his own wrong, and would be liable to refund the money.
    The jury returned a verdict for the defendant.

      Mr. David Graham, for the plaintiff, now moved for a new trial, upon a case made, and contended:
    I. That the plaintiff had a right to maintain this action against the stake-holder, to recover the amount of his bet. Although the contract between the winner and loser may be void, yet money placed in the hands of a stake-holder, upon the event of a race, may be recovered by the depositen This will appear, by comparing the fifth section of the act to prevent horse racing, (1 R. L. 222.) with the second and third sections of the act “ to prevent deceitful and excessive gaming.” (1 R. L. 153.)
    The stake-holder and winner are equally within the spirit and meaning of these acts, and the loser may maintain an action against the party in possession of the money. (Allen v. Ely, 7 Cow. 496.)
    II. The remedy against the stake-holder is not prescribed by ■ statute, but is left as at common law; and assumpsit is therefore the proper action to recover back the money. The fifth section of the act to prevent horse-racing, prescribes the form of action against the winner only, but is not applicable to the stake-holder. The statute has made a difference between them in this respect; for a qui tam action will lie against the winner, but not against the stake-holder; and debt is the action prescribed for all actions qui tam. In this case, the statute gives us a remedy, but is silent as to the form of action, and we are therefore left in this respect as at common law. We have adopted the action of assumpsit for money had and received, which is, in its nature, like a bill in equity. The statute has given us the equitable right, and we

      have adopted the equitable remedy. In this respect, we are sustained also by authority, [Simmons v. Borland, 10 John. R. 468. 7 T. R. 535.]

      Mr. J. Anthon, for the defendant, contended,
    I. That the wager was illegal. If not unlawful by the princiciples of the common law, it has been made so by statute, and all contracts growing out of it are void. Where the contract is illegal, the common law will afford the parties no relief. [Yates v. Foote, 12 John. R. 1.] At all events, where the parties are in pari delicto, and the illegal act has been done, the person who has paid his money cannot recover it back. While the contract was executory, and the matter remained in fieri, the plaintiff might perhaps have had a remedy: but the illegal act having been completed, he can have no relief. Quod fieri non debet, factum valeU [ Vide 1 Esp. N. P. 21.] Here the unlawful agreement was consummated ; the wager was made; the match had been performed, and the money was paid over. It cannot be recovered back.
    II. As the plaintiff can have no relief by the common law, his remedy, if he has any, must be founded upon the fifth section of the “ act to prevent horse-racing.” This statute was intended for the benefit of the loser; and if he would avail himself of its provisions, he must observe the forms which are prescribed. The very act which gives the remedy, confines the plaintiff to an action of debt for money had and received. Assumpsit will not lie; and in all the cases under the statute, which have been sustained by the courts, the form of action adopted has been debt for money’ had and received. [Haywood v. Sheldon, 13 John. R. 88. 15 John. R. 5. 7 Cow. 252. 496.]
    The statute in this respect has made no difference between the winner and stake-holder. If the latter is subject to all the penalties of the former, he is at least entitled to the same indulgence and protection. The plaintiff, to entitle himself to the benefits of the act, must, at all events, obey its requisitions. This he has not done, and he ouí.ía tu haw Leen non-suited at the trial.

      [There were several other questions discussed by the counsel for both parties, especially in relation to the limitation of time in foringing the action prescribed by the act to prevent gaming, and jn relation to the competency of Lane and his wife as witnesses. The counsel for the plaintiff also contended, that the verdict was against the weight of evidence upon the point of notice. But as these questions are not considered by the court in giving their opinion, the discussion of them is omitted here.]
   Oakley, J.

This was an action of assumpsit, to recover money deposited in the hands of the defendant as a stakeholder on a trotting match, made by the plaintiff with one Lane. Lane claimed to be the winner, on the decision of the match. The declaration was in the common form, plea non-assumpsit. The principal question in the case is, whether the action can be sustained at all, in its present form.

By the first section of the act to prevent horse-racing, [1 R. L. 222.] all racing or trotting of horses, for any bet, is declared to be a common and public nuisance, and an offence against the state; and all parties concerned therein are rendered liable to punishment, by fine and imprisonment. And by the 5th section of the act, all contracts made for, or on account of, any sum of money staked, or depending on any race or concerning the same, are declared to be void in law.

By the operation of this statute, the wager, in the present case, was not only illegal, but the act of trotting the match, on the result of which it depended, was a crime: and the first inquiry is, whether any action can be sustained, by the common law, for any cause growing out of such a transaction.

In the case of Yates v. Foote, 12 John. R. 1. in the Court of Errors, it was decided, that where money is deposited with a stakeholder on an illegal wager, no action lies, after the event has happened, by the loser, to recover back the deposit. The general principle ef that case is, that when men will engage in a known violation of the law, the law will leave them in the situation in which they have placed themselves, and cannot be invoked to the aid of either party. This principle is fully applicable to the present case. The trotting match being both illegal and criminal, no right of action by one party against another, can arise out of any thing connected with it. A man ought never to be permitted to come into court, averring his own criminality, and then call on the law to restore him that, which he has voluntarily parted with in the very act of violating the law, and committing the crime. In the case of Egerton v. Furzeman, [1 Car. & Pay. 613.,] an action was brought to recover money staked upon a dog fight. C. J. Abbo^ ordered the cause to be struck out of the paper, and refused to try it; saying that he thought the time of the court was not to be wasted, in trying which dog or which man won a battle. It cannot in the eye of the law be considered a more dignified employment, tobe trying which horse won a race.

I am satisfied that this action cannot be sustained by the principles of the common law, as established by authority in this state. It remains to be seen, whether there is any thing in the statute above alluded to, which can uphold it.

By the 5th section of the act, it is provided, that any person, who may have paid any money, upon the issue or event of any race, may recover the same in like manner as is provided in the “ second and third section of the act entitled an act to prevent “ excessive and deceitful gaming.” By the second section of the last mentioned act, [1 R. L. 153.,] any person losing at any game, any sum above $25, and paying the same, may at any time, within three months, recover it back of the winner, by an action of debt, founded on the act. And in in such action, the plaintiff may allege in his declaration, that the defendant is indebted to him, in the sum so lost and paid, “ for so much money “ had and received by said defendant, to the plaintiff’s use ; with- “ out setting forth the special matter.”

It has been adjudged, by the Supreme Court. [7 Cowen. 496.] That under the 5th section of the “Act to prevent horse racing,” an action lies by the loser against the stake-holder. The court say “ the 5th section, declares the wager void, and gives a remedy against “ the party to recover it back. The action lying against the “ party, a fortiori, does it lie against the agentP The stakeholder and the winner, are, by the effect of this decision, placed on the same footing. The remedy given by the act is equally available both.

jt |g contended by the defendant in the present case, that, ifliato the action at all, it can only be sustained against him in the form, and under the restrictions and limitations prescribed by the statute. I think the position a true one.

In Hayward v. Sheldon, [13 John. R. 88.] an action was brought to recover back a wager on the event of a horse race. The plaintiff declared in the general form provided by the 2d section of the Act to prevent excessive and deceitful gamingand the court said, that it was “ the correct and only manner of proceeding to authorize a recovery.” Indeed it does not seem to require any-reasoning or authority to show, that if no action in such a case can be sustained without the aid of the statute, the form prescribed by the statute must be observed. And such appears to have been the practice, as far as can be gathered from the cases on the subject, which have been reported. In Hayward v. Sheldon, [13 John. R. 88.] and in Allen v. Ehle, [7 Cowen. 496.] the action was debt. The declaration was in the general form, for money had and received; but such form is expressly given by the statute. [Collins v. Ragrew, 15 John R. 5.] In Simmonds v. Borland, [10 John, R. 468. ] it does not appear what was the form of the action. It was commenced in a Justice’s Court, and for aught that is contained in the report of the case, may have been an action of debt. There is no case, it is believed, in which an action under the statute has been tried on an issue of non assumpsit.

If, however, it should be doubted, whether the form of the action prescribed by the act against gaming, applies to the case of the stake-holder, it, by no means follows that assumpsit can be maintained, though a general right of recovery may be given against the stake-holder by the fifth section of the act against horse racing. The general rule appears to be, that when an action is founded upon a statute, the declaration must state specially the cause of action arising under the statute, unless a particular form of declaring is given by it. [Cole v. Smith, 4 John. R. 194.] If, then, in the present case, the plaintiff was not bound to pursue the form pointed out against the winner, he should have stated his case specially. His general action of assumpsit cannot be tainecL

The plaintiff then, ought to have been non-suited on the trial. ’ ° But the Judge reserved any decision of the motion to non-suit, and permitted the defendant to show that he had paid the money over to the winner; sad he obtained a verdict on that ground. I am satisfied, on reflection, that such a defence ought not to have been permitted. The stake-holder, by the statute, is placed in pari delicio with the betters •„ they are all equally criminal. The stake-holder, if be pays the money over, does it in furtherance of an illegal and criminal purpose. It is not like the case of a merely illegal wager, where the law attaches no illegality to the act of holding the stake. And in this light the Supreme Court seem to have viewed it, in Simmons v. Borland. Judgment cannot, therefore, be given for the defendant on this verdict; bat a judgment of non-suit may be ordered to be entered, the Judge at the trial having reserved the decision of the motion for that purpose. It would be useless to grant a new trial, as the plaintiff cannot be permitted to recover in the present form of action.

Judgment of non-suit

[D. Graham, Jr., Att'y for the plff. J. R. Whiting, Att'y for the deft.)


author: Oakley J.

text:
    James T. Talman versus John Gibson.
    Dec. Term, 1828.
    Where the holder of a promissory note has obtained possession of it by fraud, he cannot maintain an action upon the note against any of the parties to it.
    Possession is prima facie evidence of a transfer to the holder: yet, if the defendant can show that the plaintiff obtained the note by his own fraudulent act, he has a right to defeat the action on that ground, although he may be liable to pay the note to the true owner.
    The consideration merely, on which the note was received by the holder, is not to be questioned; but the defendant may show that no consideration was paid by - the holder, as one step towards the proof of fraud, on his part, in obtaining the note.
    This was an action upon a promissory note, made by one George Gibson, in favour of the defendant, endorsed by him to one Rogers, by Rogers to Samuel C. Hyslop, by Hyslop to one Peter W. Spicer, and by him to Charles B. Spicer.
    Plea, the general issue. -
    The. cause was tried on the 12th day of September, 1828, before Mr. Justice Hoffman.
    At the trial, the counsel for the defendant stated, that it was not denied, that George Gibson owed the note in question, nor was the defendant’s liability, as endorser, denied. That this defence was set up "by Samuel C. Hyslop, (one-of the endorsers,) who claimed to be the true owner of the note. That Hyslop Rad put the note into the hands of Peter W. Spicer, as his agent, for the purpose of having it discounted. That Spicer, in order to procure the money, employed one Samuel Healy, as a broker, who received the note, but neglected to account for it, and refused to give any information as to what had become of it. That Hyslop, upon investigation, finally discovered that the note had been lodged by the plaintiff in the Mechanics’ Bank for collection,. That he called upon the plaintiff, and demanded the note as his property ; but the plaintiff refused to surrender it up, unless the full amount thereof was paid: saying, that he had received the note of Healy as security for a debt of $70, due from Healy to him.

      The counsel for the plaintiff objected to the admission of this evidence, upon the ground, that the facts, if proved, could not be interposed by Hi{slop as a defence to this action. That the defendant, having negotiated the note upon a good consideration, could not inquire into the consideration passing between subsequent holders.
    It was ruled, by the presiding Judge, that the facts stated by the defendant’s counsel, if proved, would form no defence agaipst the plaintiff’s claim.
    The defendant then called Peter W. Spicer as a witness, who testified, that the note in question actually belonged to Hyslop: that the witness had called upon the plaintiff for it, but he refused to deliver it up, saying that he had received it in payment of, cu-as security for, a debt due to him from Healy.
    The defendant also called Healy, and offered to prove by him, that the plaintiff had given no consideration for the note; that there was no debt due to him from the plaintiff at the time the note passed into his hands, but on the contrary, that the plaintiff was actually indebted to the witness.
    The Judge decided that this evidence was not admissible to form a defence between these parties. That Hyslop’s remedy (if he were the true owner of the note) would be by action of trover against the plaintiff: that there would be no safety in negotiable paper, if a defence of this kind could be interposed between the holder and a party who had received a full consideration for it.
    To this opinion and decision, the counsel for the defendant excepted ; and the jury, under the direction of the Judge, found a verdict in favour of the plaintiff, for the full amount of the note.
    The defendant now moved for a new trial; and Mr. Mulock contended,
    I. That the defence offered, was improperly rejected. The testimony showed that the note was the property of a third person, who had lost it: the plaintiff was therefore bound to prove the consideration upon which his title rested. Were he an innocent purchaser, without notice—or if he had negotiated the note, for a valuable consideration, the defendant would have been concluded, because the note would then have been in the hands of a bona fide holder. In this case, the defendant is not the plaintiff’s debtor ; and he cannot be made such by the plaintiff’s wrongful possession of a note to which he has no title.
    II. This defence may be set up by the true owner of the note. It invades no principle of policy—it disturbs no rule applicable to negotiable paper: on the contrary, a wrongful holder ought never to be permitted to recover, xvhere the true owner is known, and asserts his rights. The title of the plaintiff is not strengthened, because the defendant has received a full consideration for the note. If he recovers, he must recover by the strength of his oxvn title, and not from the fact that the defendant owes the mohey. The plaintiff who holds anote, obtained from the trueoxvner by fraud, without having paid value for it, holds it in privity with the wrong doer; and the latter certainly cannot recover, where the true owner interposes the defence. It is of no consequence to the defendant, whether he pays the money to the holder or the true owner; but it is a matter of much importance to the latter, to prevent the money from passing into the hands of an irresponsible and fraudulent holder, from whom he might not be able to recover it.
    The right to inquire into the consideration, which the plaintiff paid for this note, rests upon the same ground on which the law places the right to inquire, whether the holder of a stolen note has received it innocently, and for a proper consideration, in the course of its circulation. If the consideration upon xvhich the remote holder of a note received it, can never be inquired into, in an action against the maker or endorser, then the mail robber may enforce his claims against the rightful owner with impunity and success. It is believed that the law xvill not permit such injustice to be done. [He cited 3 Kent’s Com. 51. Chit. on Bills, 190. 2 Camp. Rep. 574. 1 Connect. Rep. 494. Shepard v. Hall.]

    Mr. Geo. T. Talman for the plaintiff.
    Gibson, the defendant, having negotiated the note upon a valuable consideration, cannot inquire into that, which passed between the subsequent parties to it. If it were competent for him to do so, he does not set up this defence, but it is interposed by Hyslop for him. To what purpose 1 If a recovery by the plaintiff be defeated, Hyslop will not receive his money, but must resort to an action of trover to recover the note out of the plaintiff’s hands. Until the note can be placed in the hands of a person entitled to sue upon it, the defendant can never be compelled to pay the amount, which he justly owes. He received the full value of the note when he passed it away, and if this defence can prevail, the defendant, who does not deny the justice of the demand upon him, will securely hold the money to which he has no title.
    II. The case shows, that the plaintiff is an innocent purchaser for a valuable consideration. He received the note as security for his debt, without notice that Hyslop had been defrauded of it by Healy. The note came into the plaintiff’s hands by regular endorsement, and he deposited it in the Bank for collection, according to the course of his business. But the defendant offered to contradict this state of facts by Healy himself. The testimony of this witness, besides the general suspicion cast upon it from the transaetionitself, was properly rejected. It would have drawn into controversy the state of his accounts with the plaintiff and the latter in an action against Gibson, could not have expected to investigate matters entirely collateral. He would therefore have been taken by surprise, and the learned Judge was perfectly right in rejecting his testimony. The plaintiff, at all events, should have had notice as to the nature of the defence. [He cited Chit. on Bills, p. 91. Braman v. Hess, 13 John. Rep. 52. Russel v. Ball, 2 John. R. 50. 4 Taunt. 114.]
   Oakley J.

This was an action on a promissory note, made by one George Gibson, payable to the defendant, and endorsed by him and Samuel C. Hyslop. The defendant admitted his liability on the note in question,—but offered to show by way of defence to this action,—that the plaintiff held the note fraudulently and without consideration. The defendant called one Spicer as a witness, who testified that the note in controversy was actually the property of Hyslop, and that he had, as agent for Hyslop, called on the plaintiff to deliver up the note, which he refused t0 do, saying, that he had received it in payment, or as security, from one Healey. The defendant then called Healy, and stated, that he expected to prove by him, that there was no consideration for the negotiation of the note by him to the plaintiff, and that there was no debt due from him to the plaintiff at the time the plaintiff got the note ; but that on the contrary, the plaintiff was indebted to him, (Healy.)

The Judge excluded the evidence, saying, that the defence offered, could not be interposed between a holder of negotiable paper, and a party who had negotiated it on a good consideration» The jury found a verdict for the plaintiff.

The defendant now moves for a new trial.

It is believed to be well settled, that if the holder of a note obtains it by fraud, he cannot maintain an action on it against any of the parties to it. He must aver and prove, that the note was transferred to him; and, though his possession of the note is prima facie evidence of the transfer, yet, if the defendant can show that the plaintiff obtained'the note by his own fraudulent act, he has a right to defeat the action on that ground, although he may be liable to pay the note to the true owner. He has not a right to question the consideration merely on which the holder received the note; but he may be permitted to show, that there was no consideration paid by the holder, as one step towards the proof of fraud on his part in obtaining it. This proceeds on the general doctrine, that no man can acquire a right by his own fraud, to sustain an action in any court; and it is a principle of universal application. This doctrine is fully recognized as applicable to Promissory Notes, Bills of Exchange, and Bank Notes. [ Solomons v. The Bank of England, 13 East. 135. Rees v. Marquis of Headfort, 2 Camp. 574]

The offer in the present case, on the part of the defendant, to show that the plaintiff obtained the note fraudulently, seems t<j come within the general rule here laid down.

The fact, that no consideration was paid by the plaintiff, and that Healy was not indebted to him, as he alleged, if proved, in connection with other evidence which, the defendant would perhaps have produced, if he had been permitted to proceed in his defence, might, for aught the court can say, have established the fact of fraud against the plaintiff. Considering then, that the offer on the part of the defendant was, to show fraud, on the part of the plaintiff in obtaining the note, and not merely to show a want of consideration for the negotiation of it to him, I think that the Judge erred in excluding the testimony of Healy.

In Paterson v. Hardacre. 4 Taunton, 114. the court held, that where a bill had been obtained fraudulently from the defendant, the holder must prove that he came to the possession of it upon good consideration: but that the defendant could not require such proof, unless he had given seasonable notice to the plaintiff that he meant to insist at the trial, that he should prove the consideration on which he received the bill.

I should be much inclined to adopt this rule in like cases, but in the present instance, it does not appear that any objection was made by the plaintiff of the want of notice of the defence which the defendant intended to set up. There must be a new trial.

JVew trial granted.

[Hoffman & Talman, Att’s for plff. W. Mulock Atty for the deft.]


author: Per Curiam.

text:
    David Henderson, Jun., & William Cairns, Jun. versus Alexander Hamilton.
    Dec. Term, 1828.
    The defendant on the 3d of January, 1815, executed a bond for $8,500 in favour of the plaintiffs, to secure the payment of $4,404,52. The condition of the bond recited, that to pay and satisfy the last mentioned sum, one John C. Hamilton had by indenture granted unto the plaintiffs an undivided interest in certain lands (which had been conveyed by Timothy Pickering to John B. Church and others in trust,) which were unproductive and could not be divided for several years thereafter. The condition further stipulated, that the defendant should pay to the plaintiffs, year by year, the sum of $305,21, the lawful interest on said sum of $4,404,52, until the said estate should be divided and a clear and perfect title thereto, made to the plaintiffs.
    In an action upon the bond to recover the amount of the annual payments, from tire year 1818, to 1828, the defendant contended, I., that the plaintiffs were bound to show diligence in procuring a partition of the lands conveyed. II. That they were barred by the statute of limitations, from recovering any thing in arrear beyond six years, or that there was a presumption of payment from lapse of time. Held, however, that the statute of limitations did not apply to this case; that there was no presumption of payment, and that the plaintifis were not bound to procure a partition of the estate. Held, also, that the annual payments were to be viewed in the light of interest on, the principal sum, and that the plaintiffs were not entitled to interest upon the annual payments.
    This was an action of debt on a bond, for eight thousand five hundred dollars, executed by the defendant in favour of the plaintiffs, and bearing date on the third day of January, 1815. The condition of the bond was as follows:—
    “ Whereas the above bounden obligor toas on the day of the date' “ hereof, indebted unto the above named obligees, in the sum of four “ thousand four hundred and four dollars and fifty-two cents, law- “ ful money, of the United States of America, to pay and satisfy “ which, John C. Hamilton of the city of New-York, attorney at “ law, hath, by indenture bearing even date, herewith granted, bargained and sold, aliened, remised, released, conveyed and confirmed unto the above named obligees, an undivided interest, which he was entitled to, together with the other heirs and 66 widow of Alexander'Hamilton deceased, to certain lands and “ premises, which were conveyed by Timothy Pickering to John Church, Nicholas Fish, and Nathaniel Pendleton in trust, and upon “ certain conditions, as specified and contained in an Indenture, bear- “ ing date the seventh day of May, eighteen hundred and eight, as by reference to the deed of the said John C. Hamilton, to the above “ named obligees, will more fully and at large appear. And “ whereas, the estate and property remains undivided, and is un~ “ productive, and cannot be divided for several years to come, during “ which period, and until the same shall be divided according to the “ trust created, it was further agreed, that the said Alexander “ Hamilton should pay the lawful interest on the said debt of four thousand four hundred and four dollars and fifty-two cents “ yearly, and every year, until the said estate is divided, and the “ share or portion of the said John C. Hamilton shall be conveyed by “ the trustees to the said David Henderson Junior, and William Cairns “ Junior, their heirs or assigns. Now the condition of the above “ obligation is such, that if the abave bounden obligor, his heirs, " executors, or administrators shall, and do well, and truly pay or “ cause to be paid unto the above named obligees, their heirs, ex- “ ecutors, administrators or assigns, yearly, and every year, on the “ third day of January, the sum of three hundred and eight dollars and “ thirty-one cents, the lawful interest on the said sum of four thousand “four hundred and four dollars and fifly-tvio cents, until the said “ estate is divided, and a clear and perfect title thereof, be made to the “ above named obligees, their heirs or assignees, then the above “ obligation to be null and void, or else to be and remain in full “ force and virtue.”
    The declaration was in the common form, and the defendant, after craving oyer of the bond and condition pleaded, 1st, non est factum, 2d, solvit ad diem. The last plea, however, [was after-wards stricken out under a stipulation, that the defendant should have all the advantage of the statute of limitations, which could be gained by any special plea.
    The plaintiffs then assigned breaches for non-payment, setting forth the conditions of the bond and averring, that the estate and property therein mentioned, remained undivided on the third day of January, 1818, and that no title thereto had been made to the plaintiffs, or their assigns on that day, and that the sum of three hundred and eight dollars and thirty-one cents, became due and owing to them on that day accord'rig to the foim and effect of the said condition, which sum was still in arrear. There were similar breaches assigned as to each of the ten following years, up to, and including the year 1828.
    The cause was tried before Mr. Justice Oakley. At the trial, the defendant admitted the execution of the bond, and that the breaches of the condition were truly assigned by the plaintiffs : (the admission to have no effect upon his defence however,) and it appeared that the sum of three hundred and eight dollars, and thirty-one cents, which became due on the third day of January, 1816, and the like sums, which became due on the same day in tile year 1817, had been paid by the defendant to the plaintiffs.
    On this state of facts the counsel for the defendant moved for a non-suit, on the ground, that there was no evidence that any diligence had been used by the plaintiffs to effect a partition of the land, mentioned in the condition of the bond. This motion was overruled by the presiding Judge. The plaintiffs then claimed the yearly sum of three hundred and eight dollars and thirty-one cents, from the year 1818, to the year 1828, together with interest on each yearly sum, as the same accrued. The defendant insisted that the plaintiffs were only entitled to recover such sums, as had accrued on said bond for the last six years, claiming that all the residue was barred by the statute. He also contended that no interest was allowable on any of the annual sums. These points, however, were both ruled against the defendant, and the jury by the direction of the Judge gave a verdict for $4,815,69, in favour of the plaintiffs, subject to a case to be made, which either party had leave to turn into a bill of exceptions.
    The cause was now argued by Mr. J. Anthon for the defendant, and by Mr. David S. Jones for the plaintiffs.

      Mr. J. Anthon for the defendant contended,
    1. That the plaintiffs were bound, from the nature of their engagement with the defendant, to use due diligence to effect a partition of the lands conveyed in payment of the original debt, so that the interest might cease.
    II. They were bound to show that they had used such diligence, and notified the defendant of the difficulty, if there was any, that he might guard himself against the constant recurrence of the claim of interest.
    III. This creation of an annual charge after the extinguishment of the original debt, as far as the defendant was concerned, is within the spirit and equity of the statute of limitations, and the annual sums due more than six years back, are barred by the statute.
    IV. If the statute does'not apply, and the defendant is driven, as in ordinary cases on bonds, to a presumption of payment from lapse of time, the circumstances of this case, make the lapse of six years, a fair legal presumption of payment. [1 Term R. 270. 19 Ves. 196. 10 John. R. 381. 16 John. R. 214.]
    V. If the plaintiffs are entitled to recover, for the nine years as claimed, they have no right to demand interest on the several annual sums, the non-payment arising from their own laches in not demanding^; and such interest is in truth compound interest on the original debt, which the law will not tolerate. [1 John. Chan. Cas. 13. 6 John. Chan. Cas. 313.]
    VI. The plaintiffs must therefore, either take a verdict for the the last three years, or for the nine years, as the court shall decide, on the subject of the statute, or the legal presumption of payment; and in both cases without interest.

      Mr. D. S. Jones for the plaintiffs, contra contended,
    I. That the plaintiffs had not the power under their deed to effect a partition. The legal title to the estate, remained in the trustees named in the condition of the bond, and John C. Hamilton conveyed nothing to the plaintiffs but an equitable interest. The defendant on the other hand has an interest in the land, and all the means of effecting a partition, if any there be, are still open to him. Upon him lay the duty of putting a stop to the interest, which was annually accumulating, either by paying it when due, or by causing the partition to be effected, by which the plaintiffs might be put in possession of their estate.
    II. The statute of limitations is in no way applicable to this
    III. As to the interest. Suppose a bond conditioned to pay a certain sum yearly, and without any reference to the origin of the debt i in case of non-payment of the sum due, at the end of the year, the holder would be as much entitled to interest on that sum, as if the whole amount of the bond had fallen due at the same time.
    This case is of the same nature. It is an annuity; the annuity is a principal sum, and not interest, and in all cases of annuity bonds, interest is allowable. [3 Atk. 579. 2 Dickins R. 643. 2 P. Wms. 163. 1 P. Wms. 542.]
   Per Curiam.

. The annual sums to be paid by the defendant, were themselves in the nature of interest upon the principal sum secured by the bond. The bond was a continuation of the original debt, and the annual sums are not to be viewed in the light of annuities. Interest upon them, therefore, cannot be allowed, for that would be in effect to allow interest upon arrears of interest.

The statute of limitations does not apply to this case, neither is there any foundation for a presumption of payment. The plaintiffs were not bound to procure a partition of the estate; but by the very terms of the condition of the bond, the defendant himself was to furnish them with “ a clear and perfect title.”

The verdict of the jury, modified as to interest in the manner specified, must therefore be confirmed.

Judgment for the plaintiffs.

[D. S. Jones, Att’y for the plffs. E. Anthon, Att’y for the deft.]


text:
    Hugh McKeon versus David Lane.
    Dec. Term, 1828.
    In an action against a witness for the penalty imposed upon him by the statute, [1 R. L. 524.] for not attending at a trial, when duly subpoenaed, the declaration must state specially, among other tilings, that the fees of the witness were paid or tendered to 1dm, and it is not sufficient to allege that the witness was “ legally subpoenaed according to the practice of the court.”
    This was an action of debt upon the statute, [I R. L 524. Sec. 20.] against the defendant, to recover of him the penalty of fifty dollars, for not appearing as a witness in a certain cause in which the said Hugh McKeon was plaintiff, and one James Caherty was defendant.
    The declaration' averred, that on the first Monday of September, of the September term of this court, in the year 1829, the plaintiff impleaded one James Caherty in said court, in an action on the case on promises, and such proceedings were thereupon had, that upon issue joined, the said cause came on to be tried in its regular order upon the calendar of said court on the 11th day of October, in the year aforesaid, before a jury. That the plaintiff, in order to maintain the issue on his part, “ believing the said defendant to be a material witness for him” “ upon the trial of said cause,” and being so advised, did cause the said defendant to be legally subpoenaed as a witness on his behalf, “ according to the course and practice of the said court.” But the defendant, “ not regarding the statute in such case made and provided,” although solemnly called, “ did not appear to give his testimony,” “ although he had no reasonable let or impediment to the contrary, but refused and neglected so to do, in contempt of the statute.” By reason whereof, and because the evidence, which the defendant would have given was material to the plaintiff, “ for “ want of the testimony of the said defendant,” “ the plaintiff “ could not safely proceed with the trial of the said cause, but u was thereby compelled to pray the court to allow him to witihdraw the trial of the said cause before the said court and jury.” By reason whereof, Sa\

      The defendant pleaded first nil debet Second, that the plaintiff ought not to maintain his action, because, although the defendant being solemnly called on said eleventh day of October, did not appear, yet the plaintiff “ was thereupon allowed by «the said court to withdraw his record, and continue the “ said trial to another day in the said term, to wit, on the 16th “ day of October,” &c. “ in the year aforesaid,” “ on which day “ the said cause came on to be tried in its regular order upon the tc calendar,” “ and the said defendant did appear pursuant to the “ subpoena aforesaid,” and “ was then and there in the presence “ of the said court and jury: which said jury, upon that occasion, “ notwithstanding the testimony given by the said defendant, then “ and there” “ rendered a verdict in favour of the said James “ Caherty, the defendant in the said suit,” <$-c.
    The defendant also pleaded a third plea, in which he alleged, “ that the said cause, on the 16th day of October,” aforesaid, “ came on to be tried in its regular order,” &c.; that the defendant, “ then and there, in obedience to the process aforesaid, at- “ tended said court, and was then and there presented and offered " as a witness on the part and behalf of the defendant in said “ cause; and upon being so produced and offered as a witness, “ was then and there objected to by said plaintiff as an incompetent “ witness.” That the defendant, nevertheless, gave his testimony at the trial, and, notwithstanding such testimony, the jury rendered a verdict in favour of Caherty, the defendant in that suit, See.
    To these two special pleas, the plaintiff demurred, and the defendant joined in the demurrer.

      Mr. D. Graham, in support of the demurrer, now contended;
    I. That the defendant had, in his pleas, misconceived the plaintiff’s cause of action. The statute upon which this action is brought, gives the party who is aggrieved by the non-attendance of a witness, fifty dollars as a penalty, besides his damage actually sustained. In this case, the plaintiff claims the penalty only, and he neither seeks special damage, nor has he laid any such in his declaration. The defendant, by his pleas, admits that he did not appear at the trial when the cause was. called, on the llth of October; that he had no excuse for not appearing, and that the plaintiff was compelled, by his non-appearance, to postpone the trial of his cause to a subsequent day. Here, then, is an injury admitted upon the face of the pleadings, and the statute has prescribed the penalty. The pleas, therefore, are no answer to the action, and cannot be sustained. [Doug. 556. Pearson v. Iles.] The plaintiff claims the forfeiture, and it is sufficient, if he set forth substantially the cause of the forfeiture and his right This he has done; for the declarations set forth, 1. A suit pending. 3. The due and legal service of the subpoena. 3. The non-attendance of the witness; and fourthly, the injury to the plaintiff.
    The first special plea is bad, because it confesses the fact of non-attendance, and the injury to the plaintiff, but does not avoid the effect of that confession by any sufficient matter. The excuse arises from matters ex post facto, and cannot be any answer to an allegation of injury previously perpetrated.
    The third plea is bad, on the ground of departure, and this objection is fatal on general demurrer. [Sterns v. Patterson, 14 John. R. 132.] What if the defendant did appear at the trial of the cause, and what if he were offered as a witness by the defendant in that cause, and was objected to by the plaintiff? Is that any excuse for not appearing on the llth of October, at the plaintiff’s requisition ? The plaintiff complains that the defendant did not appear when his cause was called, whereby he was compelled to postpone the trial. The defendant replies—true it is, I did not appear when you were ready for trial, but I appeared afterwards when your adversary was ready, and I testified in his behalf, and you lost your cause: ergo, you were not injured by my non-appearance on the llth of October, although the whole expense of that day’s attendance and preparation was thrown upon you by my neglect! The plea, goes further: it admits, that under the statute, it was the defendant’s duty to attend when called, and it admits a violation of that duty, without the semblance of an apology for it. The pleas are bad on every ground, and cannot be supported.

      Mr. Anthon, contra, contended,
    I. That as this was a penal action, the plaintiff ought to have set forth in his declaration all the circumstances, which are made necessary by the statute to bring the party within the penalty, it being a settled rule in declaring for offences against penal statutes, (where no form is expressly given,) that the plaintiff shall set forth the facts specially which constitute the offence. [Bigelow v. Johnson, 13 J. R. 428.]
    The declaration must show what has been done, that the court may judge whether an offence has been committed, and the conclusion, contra formara statuti, will not aid the omission of the facts. [1 Chit. Plead. 357. Barnes v. Talbot. 1 Salk. 212.]
    II. The statute imposes the penalty only in those cases where the party has been subpoenaed, and has been tendered his allowance for travelling to, attending at, and returning from, the court, including one day’s attendance only. These matters are not averred in the declaration, and it is bad for this reason.
    The plaintiff has not set forth enough to put the witness in default, for he was not bound to attend the court until his fees were tendered. There is nothing to show that the plaintiff pursued the steps required by law, and the defect is not cured by the allegation, that the witness was “ legally subpoenaed.” That is a conclusion of law, not the statement of a fact, and the pleader was bound to allege the facts, that from them the court might judge whether the witness was “legally subpoenaed” or on, [5 Mod. R. 353. 3 Chit. P. 457.]
    III. There is no direct averment as to the materiality of the witness; neither is there any averment of the plaintiff’s being aggrieved. The withdrawing of the record was no grievance, and the penalty is given only to the party aggrieved. [ Cro. Ca. 522. 541.]
    IV. The whole term being one day, an effectual appearance by the witness, pursuant to the subpoena, and the giving of his test!mony at the trial, form an answer to the claim for the penalty.
    1. Because the witness obeyed the subpoena.

      2. Because the plaintiff has not been aggrieved. This is the substance of the first special plea, which is therefore good.
    V. The second special plea shows the appearance of the witness according to the exigency of the subpoenathat he was objected to by the plaintiff, but admitted as a witness, and that the verdict was for the defendant. This plea is good, because it shows, 1. Obedience to the process. 2. The immateriality of the witness, so far as the plaintiff was concerned; and thirdly, the absence of all grievance on his part,
    VI. The plaintiff, to maintain this action, after conforming to all the requisites of the statute, ought to have submitted to a non-suit, or at all events, he ought not to have brought his cause to trial at the same term. ■ This last act relieved him from all grievance, and was a waiver of all claim to the penalty. But at all events, the witness’ default, under the circumstances, exposed him to an attachment only, and he is not liable in this action.

      Mr. Graham in reply contended,
    that the declaration set forth all that good pleading required. It avers that the defendant was “ legally subpoenaed, according to the course and practice of the court,” and the legal service of the subpoena includes the showing of the original, the delivery of a copy, and a tender of the fees. The facts are stated with such certainty, that they may be understood by the opposite party, the court, and the jury. This is all that good pleading requires. [Com. D. Pleader, C. 17. 1 Ld. Ray. 680. 9 East. 473.] If the omission to state the particulars were a defect, still the defect is of such a nature, that it could be reached only by a special demurrer to the declaration. By pleading, the defendant has waived all objection to the defect, and he cannot now take advantage of it under the plaintiff’s general demurrer. [6 Com. Dig. 208. Steph. on Plead. 162.]

      II, But here it is said there has been no damage. But the cause was called, and the jury empanelled. The plaintiff, not being able to go on with the trial because of the defendant’s absence, was compelled to withdraw his record, postpone the trial, and pay the costs. Here is special damage following, as a natural consequence, the defendant’s neglect of duty, and that is sufficient to sustain the action. But the plaintiff is not bound to allege or prove special damage, for his action is given by the statute, which allows the party aggrieved to have the penalty. How aggrieved 1 By the absence of the witness, not by the loss of his cause. In order to sustain this action, it is not necessary for the plaintiff to prove that he would have prevailed .at the trial, if the witness had been present, for this would compel us" in an action upon a statute, to go into the merits of a matter entirely collateral.
   Per Curiam.

Without going into any examination of the defendant’s pleas, we are compelled to decide this demurrer against the plaintiff. By the course of pleading adopted by himself, he has enabled the defendant to avoid a justification of the matter set up by him as a defence to the action, and go back to defects in the declaration. Upon a general demurrer, the rule is familiar, that the judgment must be against the party who commits the first fault, and here the plaintiff is in that predicament. He has not set forth enough to enable the court to judge whether the defendant was bound to appear at the trial. True it is, there is an allegation that the defendant was legally subpoenaed, but that is not sufficient. The plaintiff’s attorney is not to be the judge of that, but he is to set forth all the facts of the case, that the court may judge of their effect. The declaration must have sufficient "certainty upon its face to enable us to know what has been done. Facts are to be stated, not inferences or matters of law; and the party succeeds upon facts alleged and proved.

Now in order to convict this defendant, the plaintiff must prove at the trial, that a subpoena was exhibited to the witness under the seal of the court; that a copy thereof v/as served upon him, and that he was tendered such fees as the law allows to him. These facts are not all to be embraced in one conclusion by the pleader; for if they were stated, the defendant has a right to deny and form an issue upon them, But we give judgment against the plaintiff upon this point alone, namely, that the declaration contains no averment that the fees of the witness were paid or tendered to him. This must be expressly averred in the count, and proved at the tria;, in order to convict the defendant. The case cited from Douglas, sustains this position, and does not aid the plaintiff. But we were referred to a precedent in Brown’s Entries. Upon looking at that precedent, we find that the averment is there expressly made, and there must be judgment for the defendant on the demu? rer. But the plaintiff may amend his declaration on payment of costs.

Judgment for the defendant on the demurrer.

[D. Graham, Jr. Att’y for the plff. J. R. Whiting, Att’y for the deft.]


author: Jones C. J.

text:
    John M. Robbins versus The New-York Insurance Company.
    Dec. Term, 1828.
    The charterer of a ship has no interest in the freight as such, and he cannot, therefore, insure it eo nomine. It seems, however, that an advance of freight-money may be insured under the general name of freight; but to enable the charterer to recover the amount of the underwriter, he must prove the fact of the advance.
    This was an action upon a policy of insurance for $1000, made by the defendants in favour of the plaintiff, upon the freight of all kinds of lawful goods and merchandise laden or to be laden on board the schooner Penobscot-Packet, at and from New-York to Wilmington, in the state of North Carolina, from thence to Curaqoa and Bonair, and at and from thence back to New-York.
    The declaration contained a special count upon the policy, together with the common counts for money.
    Plea, the general issue.
    The cause was tried before Mr. Justice Oakley : and at the trial, it appeared that the plaintiff had no interest in the vessel insured, except as the assignee of a certain charter-party, which had been made between the agents of the owners of the schooner and one Edmund Bulkley. The vessel, while on her voyage, was greatly injured by a storm, and had been driven by stress of weather into the port of Jacmel, in the Island of Hayti, where she was inspected and condemned as unseaworthy. There had been a due exhibition of the preliminary proofs to the underwriters, but they were objected to, as insufficient to establish a claim against the defendants.
    By the terms of the charter-party, the amount to be paid for the use of the vessel, ($1200,) was not to become due until after her safe arrival at New-York, although the owners were to receive an advance of $100 at New-York, and a like sum at Curaqoa, if demanded.
    At the trial, the plaintiff was non-suited by the Judge, upon the ground that his evidence did not show that he had any insurable interest in the vessel, he being a mere charterer, who was not bound to pay for the use of the vessel, except upon her safe return to New-York.

      Mr. J. Bulkley for the plaintiff now moved to set aside the non-suit and contended,
    I. that the preliminary proofs were sufficient, and that the plaintiff could not be non-suited, on the ground that the defendants were entitled to ask for further preliminary proofs. [He cited Phil on In. p. 54,]
    Secondly, that the evidence exhibited an insurable interest in the plaintiff, for the charterer was to advance a part of the hire of the vessel: [4 Dall. 459.] but if not, then the defendant was entitled to recover back his premium.

      Mr. Ogden Hoffman contra. [He cited Cheriot v. Barker, 2 John. R. 346., and Riley v. Delafield, 7 John. R. 526.]
   Jones C. J.

delivered the opinion of the court.

This is a motion to set aside a non-suit at the trial, for want of proof of interest in the assured. The action was upon a policy of insurance on freight by the assignee of the charterer of the vessel. The charterer is the party, who is to pay freight, and his obligation to pay does not become absolute until the safe arrival of the vessel. He runs no risk of loss during the voyage, and consequently has no interest to protect by insurance. The owner of the vessel has the insurable interest in the freight and not the charterer, who is to pay it.

But a part of the freight is said to have been advanced. The advance of the freight gives no right to insure beyond the amount of the advance; and where the owner of the vessel is liable to refund in case of loss, his right to insure that amount—resulting from the lien the charterer has, upon the freight for his security—requires, that proof should be made of the actual payment of the money alleged to be advanced. In most cases the charterer will have a lien upon the freight for the advances he makes the shipowners, as his security against their inability to refund. That lien gives him an interest under the charter-party as, or in the nature of, a mortgage, which he may insure; and the better opinion seems to be, that he may insure it in general terms under the name of freight without describing it as a mortgage interest. But to enable him to recover, he must prove the fact of the advance. His covenant or agreement to make it is not sufficient. Possibly the presumption of actual payment from the express stipulation to pay at the home port, previous to the ship’s departure, and the fact of the departure of the ship from thence on her voyage might be sufficient as preliminary proof; especially if the insurers make no objection for the want of proof of actual payment, but put themselves upon other grounds of defence. But the actual proof of the advance cannot be dispensed with as proof in chief on the trial. Now the case states that this non-suit was directed for want of evidence as preliminary proof, (and on the trial for want of proof in chief) of the interest of the assured in the freight. The plaintiff then went into proof in chief to show his right to recover. No claim was made to a return of premium for want of interest; but the plaintiff’s demand was for a loss of freight upon an interest in advances, under the charter. No proof of any advance appears. The defect is incurable and the non-suit was right.

Motion denied.

[J. Bulkley, Att’y for the plff. Hoffman & Talman, Att's for the defts.]

Note.—Hofbman J. having been of counsel for the defendants declined giving any opinion.


text:
    Josiah Dow versus Stephen T. Northam and Charles Coggeshall.
    Dec. Term, 1828.
    The plaintiff was the bail of one Windsor, and for the purpose of surrendering him, deputed one Carr to arrest W. at Newport, R. I., and bring him to New-York. Carr arrested W., and without the captain’s knowledge, put him on board the steam-boat Chancellor Livingston, in order to bring him to New-York. The defendant, Coggeshall, (who was the master of the boat,) aided in some measure by Northam, (a part owner and passenger,) after the boat left the wharf, and when he discovered that W. was on board the boat against his will, put him and Carr on shore together, and refused to permit W. to be carried to New-York. In an action against the master and Northam, for a rescue, it was held, that the proof did not support the declaration, and the jury having found a verdict for the defendants, the court refused to set it aside.
    This was an action on the case against the defendants, for rescuing out of the custody and control of the plaintiff, one Charles Windsor, for whom the plaintiff was bail.
    The declaration contained two counts. The first count stated, that Windsor, being indebted to John McGregor, Thomas Darling, and Henry T. Curtis, had been arrested on the 27th day of Oct. 1827, by the sheriff of the city and county of New-York, by virtue of a capias issued out of the Supreme Court at the suit of the said McGregor, Darling, and Curtis. That the said Dow had afterwards become special bail for Windsor, against whom the plaintiffs in that suit recovered a judgment, in the year 1828, for the sum of $1075,64, at the May term of the Supreme Court. That afterwards, as Windsor had not satisfied the judgment, the plaintiff “ made his certain deputation in writing, under his seal, to one Robert R. Carr, and attached the said deputation to a copy of said bail-piece, attested in due form of law,” by which the plaintiff authorized and empowered Carr to take Windsor, and surrender him to the sheriff of the city and county of New-York, in exoneration and discharge of the said plaintiff as bail for the said Windsor.” That Carr, by virtue of said deputation and bail-piece, afterwards, viz. on the 12th day of August, 1828, at Newport, in the state of Rhode Island, took and arrested the said Charles Windsor, and had him in custody for the purpose of surrendering him” into the custody of the said sheriff.” That the defendants, nevertheless, well knowing the premises, to prevent the plaintiff from surrendering Carr, “ rescued the said “ Charles Windsor from and out of the custody of the said Robert “ Carr, and caused the said Charles Windsor to escape and go at “ large; and the said Charles Windsor did thereby then and there escape and go at large, out of the custody of the said Robert R. Carr, wheresoever he would.”
    The second count differed from the first in nothing except thé allegations, “ that the plaintiff, having a copy of the bail-piece, arrested Carr at Newport, and had him in custody, and that the defendants rescued Windsor “out of the custody of the said plaintiff” and caused him to go at large, &c. By which means the plaintiff could not surrender Windsor in exoneration of himself as bail, had become liable to pay the amount of said judgment, and had been obliged to pay “ divers sums of money in and about a certain suit commenced and prosecuted by the said Mr. G. D. and C. against” the plaintiff, and deprived of the means of recovering the costs and charges incurred” in and about the arrest of the said Windsor, &c.
    The defendants appeared by separate attorneys, and severally pleaded the general issue. To the plea of the defendant Northam, there was attached a notice of the special matters upon which he intended to rely at the trial This notice contained some of the principal facts proved at the trial, and the additional one that Windsor had been arrested and held to bail in Newport also, and that the defendant Coggeshall had been warned not to take or carry Windsor beyond the custody and controul of the bail last mentioned.
    The cause was tried before the Chief Justice. At the trial the plaintiff called Franklin S. ICinney, Esq., his attorney in the cause, as a witness, who testified that on the 12 of August 1828, he together with the said Robert R. Carr, and charles Windsor, went on board the steam boat, Chancellor Livingston, while she was taking in passengers at a wharf in Newport, and on her way from Providence to New-York. That.Carr then had Windsor in In's custody, by virtue of a copy of the bail-piece, duly authenticated, which is mentioned in the declaration, and a letter of attorney or deputation attached thereto, whereby he was authorized to arrest Windsor, and carry him to the city of New-York, in order to surrender him there in exoneration of the plaintiff as baiL The witness further stated, that he was then acting as the attorney of Dow the plaintiff, and that he together with Carr and Windsor went on board the Chancellor Livingston, from a small boat upon the outside of the steam-boat as she lay at the wharf. That the parties adopted this mode of getting on board from fear of a disturbance, if they carried Windsor through the streets of Newport forthe purpose of transporting him forcibly to New-York. That the defendant Coggeshall was the Captain of the steam-boat and then had charge of her, and that Northam seemed to have a principal controul over the boat, and assisted in receiving the passage money. The witness did not know whether the captain saw the party in the small boat when they came on board, or was aware of their intention to do so,until after they were on board. That after the steam boat had left the wharf and had proceeded about a quarter of a mile on her way towards New-York, some of the passengers informed the captain that Windsor was on hoard, against his will, and that as he was desirous of being landed, they advised the captain to put him onshore. That thereupon Coggeshall concluded to send Windsor on shore in a small boat and ordered it to be prepared for that purpose, but the witness ohjected thereto, and showed the captain the copy of the bail-piece and the letter of attorney, which he perfectly understood. Coggeshall however, being advised by Northam to do so, persisted in his intention to send Windsor on shore in the small boat, while the witness and Carr held Windsor to prevent him from going into the boat. That the captain thereupon called up his men and threatened to use force to put Windsor on shore, which induced the witness and Carr to release Windsor who immediately went into the small boat followed by Carr. That the witness was also requested to go on shore in the small boat, but he declined to do so; and Windsor and Carr were landed alone at Fort Adams, in the harbour of Newport.
    The witness directed Carr after he had got into the small boat to bring Windsor to New-York by some other conveyance, and Carr took with him the copy of the bail-piece and deputation when he was put on shore. Mr. Kinney further testified, that as he did not leave the steam-boat, he did not know whether Carr did or did not exercise any controul over Windsor after he left the boat; that the plaintiff afterwards, upon affidavits, obtained an order from the Supreme Court, allowing further time for the surrender of Windsor, upon the payment of costs, and that the expenses attending the same were about forty or fifty dollars, the precise amount not being ascertained. The witness further testified that 'the expenses incident to the taking of Windsor, and putting hin'i on board the steam boat including counsel-fees, amounted to $75. 50, which had been paid, besides $20, to Carr, which had not been paid. The counsel for the plaintiff then enquired of the witness whether the time for the surrender of Windsor had not so nearly expired on the said 12th day of August, as that the said steam boat afforded the last and only opportunity of carrying him to New-York in season for his surrender, within the time limited by law, and whether in fact, it was practicable by any other means to produce Windsor in New-York in time to make a due surrender of him in exoneration of his bail. This question being objected to by the defendants, was overruled by the Chief Justice.

      The plaintiff then called another witness, who corroborated Mr. Kinney’s principal statements, and testified in addition thereto, that Kinney and Carr were so anxious to keep Windsor on board, that Mr. K. offered to indemnify the captain, if he would carry the ^ektor to New-York.
    The defendants called several witnesses, who testified that there was a great deal of excitement on board the steam boat when the passengers found that Windsor was detained forcibly on board: that captain C. refused to carry him to New-York, and ordered Kinney, Carr, and Windsor, all into the small boat. He said, as they had all come together, he wished them to depart together, and called the passengers to witness his proceedings. Carr and Windsor went into the boat, but Kinney refused to go. He remained in the steam boat and directed Carr, after he was in the small boat to hold Windsor, and bring him to New-York, saying that he would pay all his expenses. By the testimony of the defendant’s witnesses, it did not appear that Northern was more active in the •matter than the other passengers, but there was some slight evidence to show that he was one of the owners of the boat. The passage money, however, was received by the Captain’s Clerk, who testified that Mr. N. did not seem to take any part in the matter.
    It appeared further, that the Chancellor Livingston was a regular passage boat, plying between New-York and Providence, and that it is not customary for the passengers to ask the Captain’s leave when they go on board, or to pay their passage money until after the boat has put off from the wharf.
    Windsor was very willing to be put on shore at Fort Adams, and was unwilling to proceed to New-York.
    The Chief Justice charged the jury, that the plaintiff’s action was founded upon an alleged rescue, by the defendants, of Windsor from Carr, who had him in custody on a bail-piece. That to constitute a rescue, in the legal sense of the term, the party rescued must be under a legal arrest, or rightfully held in custody, and must be wrongfully set at large, or freed from detention by the rescuer. That in his opinion, the evidence did not sustain that charge, as there was no intention manifested by the defendants, or either o' ¡them, to set Windsor at large, or to liberate him from the power or custody of Carr, nor was there any attempt made to separate them. The captain, it was true, refused to permit Windsor to continue on board, and insisted upon putting him on shore ; but he did not prevent Carr from going with him, and Carr actually accompanied Windsor on shore. That if the captain’s refusal to carry Windsor to New-York, and the act of putting him on shore, exposed the captain to any action, (concerning which he expressed no opinion,) still the facts disclosed would not sustain an action for a rescue. That if the views taken by him of the evidence should be embraced by the jury, their verdict would be for the defendants; but if they should be of opinion from the facts disclosed, that Windsor was set at large from the arrest, or was taken out of the power of Cair, or if the latter was prevented from exercising his lawful authority over him by the defendants, or either of them, then their verdict ought to be in favour of the plaintiff for $75.50, and such part of the forty dollars as they judged proper—they being at liberty to convict one defendant and acquit the other, if they thought the evidence would support such a verdict.
    The jury, without leaving the box, found a verdict in favour of both defendants.

      Mr. Geo. Sullivan, for the plaintiff, now moved for a new trial, on the following grounds:
    I. That the verdict was against the evidence and against law. The Chief Justice mis-directed the jury, by instructing them that the evidence was to be applied to the issue, as if the plaintiff in his declaration had counted on a technical rescue ; whereas the action was in truth brought for an unlawful interference on the part of the defendants, with the plaintiff’s custody of the person of the debtor, for whom he was bail.
    II. There was sufficient legal evidence of an unlawful interference on the part of the defendants with the plaintiff’s right of^ custody over the person of the debtor : but the presiding Judge informed the jury that there was no such evidence. Even if there was no evidence to support the first count, still the second count was fully sustained. Windsor, in contemplation of law, was in the custody of the plaintiff, through the intervention of his agent^ Kinney. For although the deputation was to Carr, that did not take away from the agent the right to represent his principal, and to detain Windsor himself. The Chief Justice put the defendants’ liability exclusively upon the ground of their intention to set Windsor at large, or liberate him from the power or custody of Carr; whereas, the liability of the defendants in law, rests upon the fact of their interfering with the plaintiff’s controul over the person of the debtor, whereby he was prevented from surrendering him to the sheriff.
    III. The presiding Judge, by omitting to direct the jury as to the right of the plaintiff to bring the debtor, by the steam-boat, to New-York, under the circumstances of the case, left the jury in ignorance of the plaintiff’s legal rights, and gave them ground to infer that the defendant, Coggeshall, could not have brought Windsor to New-York in his boat, without subjecting himself to damages for a false imprisonment; whereas Windsor having made no application to the captain before the vessel left the wharf could not have recovered against the captain or the owners of the boat, even if he had been brought to New-York.
    IV. The direction of the Chief Justice was uncertain in respect to the ground on which the jury were required to return their verdict, so that they could not distinctly understand whether they were to return a verdict for the defendants on the ground, that no technical rescue was sufficiently proved, or because Windsor was not in fact liberated from the plaintiff’s custody, or upon the ground that the defendants did not intend to set him free. The jury were in fact left to infer that the captain and owners of the boat had a legal right to put Windsor and Carr on shore, and that therefore the defendants could not be liable in this action, and it is not clear from the charge but what the jury returned their verdict upon this ground.

      Mr. Greenwood and Mr. W. T. McCoun, the counsel for the defendants, were stopped by the court, in their reply.
   Per Curiam.

It is very clear that this motion cannot prevail. The plaintiff, in both counts of his declaration, has brought his action against the defendants for having rescued Windsor out of his power. The first count alleges that the debtor was in the custody of Carr, a special agent deputed by the plaintiff to arrest him, and that he was taken out of the custody of Carr. The second count differs in no respect from the first, except by alleging that Windsor was in the custody of the plaintiff, and was rescued out of his hands and control by the defendants. Now the plaintiff’s own evidence shows that there was no rescue whatever, no separation of the parties, no sundering of the debtor from the party having charge of him. If the plaintiff was represented by Carr, then the debtor was left under his controul; for both went on shore together, and so far from being separated, they were in fact kept together. If, however, Kinney was the representative of the plaintiff still there was no rescue, because Kinney was expressly requested to retain the custody of Carr, by going into the small boat with him. If the plaintiff himself, through his agent, voluntarily abandoned the debtor, he surely cannot charge the defendants with having rescued him.

The plaintiff, if he has any cause of action against the defendants, has manifestly mistaken his remedy. He should have framed a count to correspond with his proof, and if the captain was bound to bring Windsor to New-York, and refused to do so, he should have been charged with the act, which he in fact committed. If we treat the second count as a declaration in case, for sending Carr and Windsor on shore, that will not assist the plaintiff ; for the proof shows no damage from that act, and therefore the gravamen of the declaration would not be supported.

The Judge charged the jury expressly to say by their verdict, whether Windsor was in truth set at large or not, and they have found, upon that point, against the plaintiff. Their verdict is fully supported by the evidence, and the motion must be denied.

Motion denied.

[F. S. Kinney, Att'y for the plff.

J. Greenwood, Att'y for Northam, S. D. Hewlett, Att’y for Coggeshall.]