text:
    John Denn, ex dem, Lucretia Hughs versus William M. Morrell and others.
    Dec. Term, 1828.
    Upon an application for a new trial, on the ground of newly discovered evidence, where such evidence rests in the knowledge of a witness, the Courfwill require the party moving to produce an affidavit of the witness, setting forth the tacts upon which he relies, or to show that it could not be obtained.
    This was an application for a new trial, upon the ground of hewly discovered evidence. The original action brought by the the plaintiffs, was an action of ejectment, to recover one third part of a house and lot of land, situated in the city of New-Yorlt. Upon the trial, the plaintiffs had a verdict, subject to the opinion of the court, upon a case to be made, and upon the argument of the case, the court gave judgment in favour of the plaintiffs. The defendants now moved for a new trial upon the ground of newly discovered evidence. The affidavit upon which the motion was founded, was made by John M. Cannon, one of the defendants, and it set forth th e particular jacts, which the defendants expected to prove, if a new trial were granted. It stated also, that a fortnight after the trial of the cause, the deponent “ discovered new “ and material evidence in favour of the defendantsand further, that upon a new trial, the deponent would be able to prove the facts upon which relied by Frederick Dibblee, Esq., of the city of New-York, counsellor at law. It was also stated by the deponent, that the witness would testify, that the lessor of the plaintiff had, at a certain period long since elapsed, executed a deed in his presence, either a quit claim or a release, (the witness could not remember which,) whereby all the interest of the lessor in the premises was conveyed to one Maria H. Williamson. That said deed was delivered in the presence of Dibblee, but had never been in the possession of the deponent, and as he was informed, and verily believed, it had never been in the possession of the other defendants, but had been lost or mislaid in the life-time of the said Maria. '
    It was objected to this application, J
    I. That the affidavit did not contain any allegation of the deponent’s ignorance of the fact, that Dibblee could testify to the matters detailed until after the trial.
    II. That there was no affidavit of Dibblee.
    III. That there was no affidavit of the other defendants as to the loss of the deed. And [3 Caines’ R. 186. and 8 J. R. 489.] were cited.
   Upon this state of facts, the Court held, that the party moving for a new trial upon the ground of newly discovered evidence^ was bound to produce the affidavit of the witness, from whom such evidence was to come, setting forth the facts, or shew that such affidavit could not be obtained. In the present case, (they said,) there was no ground to suppose that Dibblee would give the testimony detailed in the affidavit, except from the belief of the deponent, and the application was therefore refused.

[W. W. McLellan, Att'y for the plff. John M. Cannon, Att'y for the deft.]


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    James C. Norton and John L. Norton versus Gertrude Vultee.
    Dec. Term, 1828.
    An action of debt, for the recovery of rent founded on a lease, will lie in favour of the lessor, notwithstanding the lease may have expired.

    The assignee of a lease, who enters upon and occupies the demised premises, is liable for the rent in like manner with the assignor. In declaring against him, he may be described as assignee in general terms; and the manner in which the assignment was made, need not be set forth. But the assignee cannot be made answerable, by the action of debt, for the rent of any part of the premises demised, except that which has been possessed and enjoyed by himself; and the rent in such cases may be apportioned, the action being founded on the privity of estate merely, and not on the privity of contract.
    The plaintiffs demised certain premises for a term of years to one F. L. Vultee. The lessee, a short time before the expiration of the term, died, and the defendant, (his widow,) took out letters of administration upon his estate, and continued in possession of apart of the premises, until the lease expired. An action of debt being brought against her for all the rent which was in arrear at the time of the expiration of the lease, it was held, that she was only liable in this action for the rent of such parts of the premises as had been occupied by her after her husband’s death.
    This was an action of debt, brought against the defendant as the assignee of a lease. The declaration was founded on an indenture of lease, made by the plaintiffs to one Frederick L. Vultee, bearing date the 20th of February, 1821, for the term of five years, to commence on the first day of May thereafter, and reserving rent at the rate of $160 per annum, payable quarterly. The declaration stated, that after the making of the lease, to wit, on the first day of April, 1825, “ all the estate, right, title, inter- “ est, and term of years then to come, of the said Frederick L “ Vultee, in and to the said demised premises, by assignment thereof, came to and vested in the defendant; whereupon she entered “ upon said premises, became thereof possessed, and so continu- “ ed from thence until the first day of May, when said lease was “ determined.” The declaration further stated, “ that after the making of said indenture, a large sum of money was in a
      v rear, to wit, the sum of eighty dollars for the two last quarters, “ ending the first day of May, 1826 for which sum this action was brought.
    The defendant pleaded nil debet.

    The cause was tried before Mr. Justice Hoffman on the 9th day of September 1828. ;At the trial the plaintiffs proved the execution of the lease, and that one Michael Jordan hired the front part of the premises described therein for the term of three years, and paid the rent in advance to Frederick 1*. Vultée. After the death of Jordan, one McGlade purchasedof Vultee the residue of his term of the front house, and paid him therefor in advance* The defendant occupied the rear house on the premises,, but never occupied any part of the front, which was hired by McGlade.
    The plaintiffs also proved, that on the 24th of February 1825, letters of administration were granted to Gertrude Von Vultee, widow of Frederick Louis Von Vultee, by the surrogate of the city and county of New-York. •
    Upon this evidence the counsel for the plaintiffs having rested their cause, the counsel for the defendant moved for a non-suit upon the following grounds. First, that the letters of administration did not show the defendant to be the person declared against.
    II. That the action of debt would not lie, on an expired lease.
    III. That the declaration did not state how the defendant became liable as assignee.
    IV. By the plaintiffs own showing a part only of the premises came to the defendant; the recovery against her, therefore, could only be for the part she occupied.
    Upon these objections the presiding Judge declined passing an opinion at the trial, but directed the jury, with the consent of parties, to find a verdict in favour of the plaintiffs for the two quarters rent and interest,, subject to the opinion of the court upon the whole case.

      The jury returned a verdict'in favour of the plaintiff for ninety three dollars and eighty cents.
    A case having been made containing the foregoing facts. Mr. Mulock for the defendantnow contended, that the plaintiffs should be non-suited for the reasons assigned at-the trial. That this action would not lie on an expired lease., The action of debt (he said) grows out of the privity between the parlies, and when -that expires, the right to the action expires with it. There never was any privity of contract between the plaintiffs and the. defendant in point of. fact, and the lease terminated on the first day of May. No action would lie against the defendant on the lease, for she never was a party to it, in any shape, directly or indirectly. [ Woodfall 326. Cro. Eliz. 264. 2 East’s R. 575.]
    II. It'does not appear from the pleadings hoto the defendant became assignee. As she is sued in a special character, she should.have been specially declared against: she is charged as administratrix, but is not sued as such. By this means, the defendant is taken by surprise, for if she had been sued as administratrix, she might have pleaded plene administravit. As assignee in fact, the defendant-had no notice, and the object is to charge her as assignee in judgment of law. But conclusions of law are not to be pleaded ; the facts from which those conclusions are drawn are to be set forth, that the defendant may know how to answer. In this case the letters of administration could not prove the defendant to Be assignee in fact, and the plaintiffs was bound to show the manner in which she became liable to him, for the debt, which they seek, to recover. [1 Sound. 104.] It will probably be said, that if an executor or administrator cannot get rid of a term, that all the legal consequences of the contract, attach themselves to him. If this be so, then clearly the declaration ought to point out the character in which the defendant is sued. [Cro. Jac. 549. 1 Mod. jR. 188.]
    III. The proof does not support the declaratioh. The only evidence adduced to charge the defendant, is to be found in the tetters of administration granted to Gertrude Von Vultee. "The name of the administratrix is entirely different from that of the defendant, and there is no proof that the same person is meant. This is a fatal variance, [1 Camp. R. 195. 2 Esp. R. 726. 2 Bam. 4' Aid. 756. 4 Maul. $ Sel. 470.]
    IV.' The recovery in this case, at all events, can only be pro rata, for the plaintiffs show, that no part of the premises except the rear building ever came into the possession of the defendánt. As she is not charged by privity of contract, but only by means of the privity of estate, she can only be made answerable for the rent of that portion of the premises which came to her.
    A personal contract cannot be apportioned; but if the lessee for years rendering rent, grant away part of the land during the term, the rent shall, be apportioned. \_Shep. Abr. vol. l.p. 166.]
    The plaintiffs of course must have accepted McGlade as a tenant, because the defendant is merely charged as assignee. If so, she is the assignee of that part of the premises only, which came to her, and McGlade was the assignee of the residue. The defendant ought not to be made liable for an estate, which-she never enjoyed, and cannot be made liable as the representative of her deceased husband, unless charged as such. [2 East’s R. 575. 14 John. R. 89. Woodfall 280. 2 Lev. -231. 3 Coke 22. Lilly’s Entr. 133,]

      Mr. Selden contra for the plaintiffs.
    The plaintiffs in this case demised certain premises, for . a term of years, to one Frederick L. Vultee. The lessee before the expiration of the term dies, and the defendant his widow, takes out letters of administration upon his estate, and continues in possession of the premises. The rent for two quarters, having become due, and remaining unpaid, this action of debt is brought against the administratrix, to recover that amount.
    The plaintiffs have their option to resort to an action of covenant, or debt, for either of them will lie in a case like the present, although debt is the most appropriate remedy. [1 Saund. 233. a. 1. Woodfall, 323. chap. 13. sec. 2. 1 Lev. 25.]

      The counsel for the defendant has been misled by the marginal note to the case in Cro. Eliz. 264.; for upon an examination of the text there, it will be found that the lease in that case had been cancelled, and that was the reason why debt would not lie. But the case in' 1 Lev. 25. was an action of debt on an expired lease, and is directly in point for the plaintiffs.
    II. As there can be no doubt about the propriety of this action, the next question arises upon the state of the pleadings. It was not necessary or practicable for the plainiifts loset ioith ibe terms of the assignment from the lessee to the defendant. How could they know any thing of a new contract between other parties 1 and how can they be compelled to set forth that which cannot be within their knowledge? The lessor has his election to charge the defendant, either as administratrix, or as assignee. She may plead in her defence that she is administratrix, and that the premises do not produce the amount claimed by the landlord, and that she has no assets to make good the deficiency. But where a privity of estate for any part of the premises exists, the plaintiff may bring his action for the whole rent, and the defendant must show the reason why he is not chargeable for the whole. The intermediate transactions between the lessee and his assignees, cannot be known to the lessor, and if there be any special defence against the claim of the landlord fpr, the,whole rent, the defendant should show that by his plea. [1 Chit. Plea. 353. 2 Ib. 194. note. 1 Sound. 1. note 1. 1 Salk. 316. Cro. Jac. 411. Cro. Eliz. 633. 1 Salk. 308. 297. Cowp. 768. Doug. 184.]
    III. The only inquiry remaining is; whether the proof supports the declaration. The variance at most, is merely in the middle-letter of the defendant’s name, which is never considered as a defect., But if.the defendant intended to rely’upon this as her defence, she should have pleaded the matter in abatement. The person of the defendant is identified in the letters of administration as the widow of Frederick Louis Vultee, and if she be not. the person meant, let that be shown by a proper plea. ' This is no defect or variance in point of fact, and if it were, it could not be taken advantage of in this manner.
   Per Curiam.

This is an action of debt brought against the defendant as the assignee of a lease, to recover rent in arrear. From the facts disclosed by the case, and from the averments in the declaration, it may be fairly inferred, that the rent for which the action is brought., has accrued since the death of the original lessee; that the defendant has since that time entered upon and enjoyed a part of the demised premises, and that the lease on which the action is founded, expired before the commencement of this suit,.

The first objection made to the plaintiff’s right of recovery is, that the action of debt will not lie on an expired lease. But this is a mistake. At common law the lease must expire before an action can be brought, and then debt is the proper action. We have looked into the case cited by the defendant’s counsel from [Cro Eliz. p. 264.] and are satisfied that its import has been mistaken. The termination of the lease can neither destroy the lessor’s right to the rent, nor take away his remedy to recover it. And there is a case reported in the same book, (Brown v. Hare, Cro. Eliz. 633.) where it was expressly decided, that debt upon an expired lease would lie, and the other authorities cited on the argument fully support the same position. [1 Lev. 25. 1 Saund. 233. a. 1. Woodfall, 323. 2 Lev. 231.]

The objection that the declaration does not show the manner in which the defendant became assignee, is equally unfounded. She may be described as assignee in general terms, and such description will be sufficient to charge her for the estate which actually came into her possession; “ for the plaintiff is a stranger to the defendants’ title, and cannot set it out particularly.” [1 Chit. 353. Folliard v. Wallace, 2 John. R. 402. 1 Saund. note 1. 1 Salk. 316.]

But the verdict in this case has been rendered for the ■ entire rent of the whole premises for the two quarters, which is a greater amount than that for which the defendant is liable; and there must, therefore, be a new trial, to correct the amount of the recovery. The defendant entered upon a part of the premises only, and she cannot be charged for a greater estate than that which she enjoyed. She is sued as assignee generally, and like every other assignee, is liable for the estate which came into her hands. In all cases where there is no privity of contract, the" rent may be apportioned, and the law leans towards this course, as most consistent with the ends of justice.

If the defendant had been sued as administratrix with assets, then the rent could not have been apportioned, for the administratrix would have been bound to fulfil the contract of the intestate. But here she is made answerable for the estate which she has herself enjoyed, and the judgment goes against her own property. As she is liable merely through her privity of estate, she of course cannot be made answerable for what she never possessed.

There must therefore be a new trial, to ascertain what the value of the rent of that portion of the premises occupied by the defendant, actually was, in relation to the other part in the possession of McGlade, the other tenant.

As in the view we take of the subject, the defendant is liable, in her own capaóity, for the rent of the premises enjoyed by her, the objection, that the proof does, not support the declaration, in consequence of a misdescription in the defendant’s name, has no application, and need not be considered.

New trial granted.

[Emmet and Selden, Att'ys for the plffs. Muloch, Att'y for the deft.]


text:
    Hannah Rogers et al. executors of Fitch Rogers deceased, versus Nehemiah Rogers.
    Feb. Term, 1828.
    A court of law cannot take jurisdiction of accounts between partners. To an action upon a promissory note, the defendant pleaded that the note was given as the consideration of a release of a certain lot of land held by himself and his co-partner jointly, upon the supposition that the balance of the partnership accounts was in favour of such co-partner; whereas in point of fact, the balance was in his own favour, and so, that the consideration had failed. The plaintiffs replied that the balance of said accounts was not in favour of the defendant, and and that the said lot of land was held by the said co-partners not jointly, but as tenants in common. Upon demurrer to this replication it wqs held that the plea was no bar to the action, as it sought to cause an investigation of accounts between partners, before a court of law. The plaintiffs thérefore, had judgment on the demurrer. •
    The declaration in this case contained two founts. The first was upon a promissory note for $1457. 74., bearing date the first day of May 1827., made,by the firm of N. .Rogers ind Son, in favour of the defendant, payable twelve months after date at the Bank of New-York, and endorsed by the defendant to the testator of the plaintiffs. The declaration alleged a regular demand at the Bank of New-York, when the note became payable, and a refusal of payment on the part of the makers with notice to the defendant.
    The second count, was for money lent and advanced, money paid, money had and received and upon account an stated.
    The defendant pleaded first, non-assumpsit, and secondlyin bar of the action, that the consideration of the notes specified in the declaration and the bill of particulars of the plaintiffs, “was the re- “ lease by said testator of his supposed right and interest in cer- “ tain real estate situate in Pearl-street, (No. 232.) in the city of “ New-York, wherein the defendant and the said testator were “ jointly and exclusively interested as co-partners under the firm " of Rogers & Lambert, and said makers óf said notes above de- “ clared on and mentioned in said bill of particulars, had not any “ interest therein; and under an impression that said co-partnership in form, (but the defendant in fact,) was indebted to said “ testator on co-partnership account; a release of his said supposed “interestin said real estate was executed and said notes were given « therefor, whereas in fact and truth, since the giving of said “ notes, viz : within a short time before the institution of this suit, tt h Was discovered that the balance of account between the de- “ fendant and said testator, in said partnership account is against “ said testator in ¿ large amount, and was in fact, against said " testator at the time of the giving of said noteand the defendant averred, “ that said testator had not any right or interest in “ said real estate to release,” &c.'
    To this plea the plaintiffs replied by protesting, that the balance of account between the defendant .and said testator in their co-partnership accounts was not against the said testator at the time of the giving of said note, and by alleging “ that said testator and e‘ the said defendant were not jointly interested in the said real “ estate as co-partners under the firm of Rogers & Lambert, as in <c the said plea is alleged, but as tenants in common, and that the “said testator had a right" or interest in said real estate as .such “ tenant in common to release,” and of this he put himself on the country.
    To this replication, the defendant demurred specially; first, because the plaintiffs, by their replication, admit that the balance of aócount mentioned or referred to, was against the said testator, and yet deny that said real estate was co-partnership property. Secondly, because the replication is double. Thirdly, because the balance of account being against the said testator, the real estate was thereby có-partnership property. Fourthly, because the plaintiffs have not set out with sufficient certainty the title and interest which they aver then testator had and released ; whereas they ought to have averred that their testator was seized in fee, (and undivided "with said Nehemiah) of a certain specific portion of said real estate, and being so seized thereof, released the same to. the makers or endorsers of said notes, as the case might be. In support of the cause, last assigned,

      Mr. G. Sullivan, for the defendant,
    cited [Coles v. Coles, 15 J. R. 159. 1 Marsh. R. 258. Maberley v. Robins, 5 Taunt. 625. Johnson v. Johnson. 3d .Bos. and Pul. 162. Sugden on Vend. 226.]

      He also insisted, that the causes of demurrer were well taken, and that the plea was not answered.

      Mr. Sedgwick, for the plaintiffs,

      contra, contended, that the plea was bad:
    I. Because it assumes to answer the whole declaration, whereas it answers only the count on the note. [1 Chit. P. 509. 18 J. R. 28.]
    II. The bill of particulars makes no part of the record, and the court cannot know on demurrer what it comprises.
    III. The plea is founded on partnership accounts and other matters, of which a Court of Equity alone has cognizance.
    IV. The plea is argumentative.

      Mr. Sedgwick insisted principally upon his third point, and that matters of partnership between the parties -could not be investigated in a trial at law.
    The court decided the demurrer in favour of the plaintiff on the argument, upon the ground that the matters set up in the plea, if they could furnish any defence, were not available as a bar to the action in a court of law.
   Per Curiam.

If the defendant relies upon partnership transactions as a defence to an action at law, his course obviously is to go into a Court of Equity, which alone has the power to investigate accounts between partners, and to do justice between them. This suit might be restrained by an injunction out of Chancery upon a bill which the defendant has the power of filing. If he wishes to have an investigation of the accounts between himself and his deceased partner, he has merely to apply to the tribunal which has jurisdiction over the subject matter to be examined. But how can this court ascertain in an action at law, upon which side liesthe balance of the accounts 1 Are they to be investigated by a jury at the trial, and can they examine the transactions of ye are perhaps, and measure out justice in an intelligent and impartial manner, upon matters which may require an appeal to the consciences of the parties, as .well as to the ordinary proofs furnished in a trial at law 1 It is obvious that the defendant has mistaken the proper mode of defending himself and has sought to !nvestigate matters before a tribunal which cannot take proper cognizance of them. His plea, therefore, cannot be sustained, and as the first fault inpleading is his, the plaintiffs must have judgment upon the de-murrer.

Judgment for the plaintiffs on the demurrer.

[D. D. Field, Att’y for the plffs. A. G. Rogers, Att’y for the deft.]


text:
    Hannah Rogers and others, executors of Fitch Rogers deceased, versus Nehemiah Rogers and Samuel Rogers.
    Feb. Term, 1829.
    A Court of Equity has exclusive jurisdiction of accounts between partners, and a plea in bar of an action upon a promissory note, which sought to open partnership accounts for the purpose of showing, that there was a mistake in the note and that its consideration had failed, was adjudged to be bad upon demurrer.
    The declaration in this case, contained two counts. The first count was upon a promissory note for $8,000, made by the defendants in favour of Fitch Rogers deceased, of whose last will and testament the plaintiffs were executors. The note was dated on the 31st of December, 1814, and was payable two years after its date with interest. ,
    The second count was for money lent, money had and received, money paid and upon an account stated.

      The defendants separately appeared by the same attorney and separately pleaded the same pleas in bar of the action. These pleas, (especially the second) were long and special in their statements alleging all the matters therein contained in a very circumstantial and particular manner.
   The first plea set forth in substance, “that before the making of the note in the plaintiff’s declaration mentioned and the bill of particulars above set forth and stated,” the said Nehemiah and the said testator became co-partners with one DavidRogers Lambert, under the firm of Rogers and Lambert, to wit in the year 1795.

That the books of the firm were kept by Lambert who was to be rewarded by a part of the profits of the business, while all the capital should remain the property of the testator and Nehemiah Rogers.

That in the year 1811, Lambert being debtor to the firm in the sum of £4768,7,4 : New-York currency, in stating his account with the firm debited to them the sum of £3,500. as profits and admitted a balance of £1,268. to be due from himself to the firm: which sums he afterwards entered in the partnership books whereby he stood discharged of said last mentioned sum and the said testator had credit for $1,610,45. This last entry was made as if Lambert had actually paid the money to the firm, whereas in point of fact no part of it was ever paid into the partnership funds: nevertheless the said testator had credit for it and interest thereon in account current between himself and others with the defendant, (N. R.) who were successively partners with the defendant, until the 31st day of December, 1814.

The plea then stated all the particulars of the partnerships, and who the successive partners were, and how the various firms were composed, and averred that the said sum of $1,610,45, was continued upon the books of the various firms to the credit of said testator until December, 1814, when an account was stated between the testator and the defendant, N. R. in fact but under the name of N. Rogers & Son, wherein credit was given to the testator for the aforesaid sum of $1,610 45-100, to■* -«'ether with interest thereon, making altogether the sum of $§,069,37-100, which last mentioned sum was included in the balanee for which the note specified in the declaration was given.

The plea then further stated, that Lambert made said entries in the books, in discharge of himself, under an expectation that his share of the profits arising out of uncollected debts due to said firm would equal the amount for which he had made the entries, whereas, it was afterwards ascertained that no profits had accrued to said Lambert from any outstanding debts, whereby the amount of said entry of $1,610, 45-100, to the credit of said testator together with the interest thereon included in said note “ had become erroneous, null and void.”

The second plea set forth the partnership between the defendant, the testator and Lambert as in the first plea, and that Lambert kept the books of the firm. That in December, 1805, the testator’s name was withdrawn from the firm, and his son, Henry Rogers became a partner therein. That this partnership between the defendant, Lambert and Henry R. continued until the year 1808, when the last named partner died. That after his death a statement of the concerns of the firm was made by Lambert, whereby it appeared that there would probably be an amount of profits to be divided among the partners arising from uncollected debts, and that Henry R. would be entitled to one sixth part of such profits. That the testator, as the heir at law of Henry R. and as his administrator, requested the other partners to charge to him (the testator) all such sums as ought to be charged to his said son, and to credit him with such an amount as Henry R. was entitled to receive. That thereupon, Lambert upon estimating all the debts due to the firm, found that they amounted to $30,000., one sixth part of which was contingently credited to the testator, -with a distinct understanding that if the collections should fall short said estimate, a proportionate deduction should be made from said credit of $5000. This credit was continued until the date of the note, on the books of the various firms, viz : on the books of the original firm until 1811, when the defendant Jeremiah R. associated with him in business one Fitch Rogers, Jun., son of the testator, and the defendant Samuel Rogers, under the firm of N, Rogers, Son & Co. Portions of the aforesaid debts were collected by this firm until May, 1814, when Fitch Rogers, Jun., retired from the same, and afterwards the collections were continued by the remaining partners under the name of N. Rogers & Son, until the 31st of December, 1814, when an account was stated between the said Nehemiah in fact, (but in the name of N. Rogers & Son,) with the said testator, in which the said sum of $5000 was included. For this balance the note specified in the declaration was given, under the supposition that it was actually due, without any examination as to the actual amount of collections made. The plea then stated, that since the date of said note, it had been finally ascertained, that the collections made by the said firm of which the said Henry R. deceased was a partner, were not sufficient to cover the actual losses of said firm, and would not amount to the sum of $30,000., whereby said note for $8000 became “ erroneous, null and void.” The plea then concluded with an averment, that the said sum of $5000 with the interest thereon was equal to the amount of said note, and the interest on the same, which the defendant was ready to verify, &c.

To these pleas the plaintiffs demurred, and for causes of demurrer to the second plea, assigned the following, viz:

I. That the second plea mentions and refers to the bill of particulars, as if the same had been pleaded and made part of the record.

II. That the second plea alleges “ that $5000 were then and “ there credited contingently to the said testator” upon the dis- ** tinct understanding,” &c. without alleging upon whose distinct understanding, &c.

III. That the same plea is argumentative and by way of rehearsal and not distinct and positive, in that it alleges that the name of said testator was withdrawn from the firm, without alleging whether the testator himself withdrew therefrom, &c. Neither does it state whether at the time said note was given, there was any understanding that its amount should be corrected, increased or diminished, according to the collections actually made, but leaves the same to inference and argument.

• IV. The second plea is uselessly encumbered with long and informal statements and allegations.

Upon the argument of the demurrer, Mr. Sedgwick for the plaintiffs presented the following points.

I. That the first plea was bad because it purports to answer the whole declaration, but contains no answer whatever to the second count,' and goes only to a part of the first count.

II. The first plea is bad because it seeks to open the partnership accounts between the testator, Nehemiah Rogers and David R. Lambert, when the only remedy which the defendants have, if there he any, is to be found in a court of equity. The same plea is also bad, because it amounts to a set-off, which cannot be pleaded.

The second plea is bad, for the reasons already set forth in the first point, and because it involves the whole or the greater part of the partnership accounts of Rogers, Lambert & Co., the subject matter whereof, being founded in misapprehension and mistake, is properly subject to the jurisdiction of a Court of Equity only, to the exclusion of the jurisdiction of a Court of Law.

When the cause was called for argument, the court deemed the objections taken by the plaintiffs in the second and last points, as conclusive, against the pleas and gave judgment for the plaintiff without any observations from either counsel; the same points having been decided in the previous case.

Judgment for the plaintiff on the demurrer.

[D. D. Field, Att'y for the plff. A. G. Rogers, Att'y for the deft.]


author:
The Chief Justice
      Hoffman, J. Oakley, J.

text:
    Charles R. Shipman versus Silas E. Burrows.
    Feb. Term, 1829.
    In an action of slander no evidence can be given of any loss or injury sustained by the plaintiff unless the same be specially stated in the declaration, and this whether the special damage be the gist of the action, or whether the words be actionable per se.

    Where, therefore, under the allegation, that, in consequence of the speaking of the slanderous words, “ certain Insurance Companies in the city of New-York, re- “ fused to insure any vessel commanded by the plaintiff, or any goods laden on “ board any vessel by him commanded,” the plaintiff was permitted to prove that the New-York Insurance Company refused to make such insurance ; the evidence was held to have been improperly admitted.
    In this action, the plaintiff cannot give evidence of the fairness of his general character, until it is attacked by the defendant; and the fact, that a justification has been pleaded, makes no difference in the rule.
    Where the plaintiff, therefore, was allowed to give evidence of his general goad character, after the defendant had gone through with his defence, without impeaching such general character, this evidence was also held to have been improperly admitted.
    This was an action of slander, tried before Mr. Justice Hoffman, on the 22d day of December 1828.
    The declaration contained four counts. The first set forth, that the plaintiff was “a ship master and ship owner,” and as such had “obtained the good opinion and credit of his employers and “ others.” That the defendant, with the intent “ to cause it to “ be believed by his employers and other citizens, that the plain- “ tiff was dishonest and unworthy to be trusted with the command of “ a vessel as captain thereof, or with the charge of merchandise to be “ shipped on board of any vessel which might be commanded by him, “ and to prevent certain incorporated companies in the city of JVew- “ York from underwriting goods shipped and to be shipped on board “ the said vessel, and thereby, otherwise to injure him in his said “ calling,”—“ On the 26th day of .May” 1828, “at the city of “ New-York,” “ in a certain conversation,” “ then and there had “ in the presence and hearing of divers” “ citizens, of and con- “ cerning the plaintiff” and “ his calling” “ and of and concerning “ a certain voyage by the said plaintiff then lately made, as mas- “ ter” "of a certain ship” "from Carthagena to the city of Nevv- “ York,” “ and of and concerning a certain quantity of fustic on « hoard said vessel during the said voyage, and of and concerning «the conduct of the plaintiff in rendering an account of the num- « her of logs or sticks of fustic so on board said vessel as aforesaid, " did falsefy and maliciously speak and publish of and concerning “ the plaintiff, the false, scandalous, malicious and defamatory " words following,” that is to say, “ he (the plaintiff) sawed up “ wood to make it hold out.” [Inuendo, setting forth the meaning of the words.] "By means” “of which,” “the said plaintiff “ hath been” “greatly injured” “as a ship-master and ship-owner,” “ insomuch” “ that divers” “citizens” “have suspected and believ“ed the plaintiff to be dishonest and unfit” “to be entrusted and “ employed as a ship-master, or in the command of a vessel, or with “ merchandise to be laden on board any vessel by him com- “ manded,” and “ certain Insurance Companies in the city of New- “ York aforesaid, have, thereby, and on no other account whatever, re- “ fused to insure any vessel commanded by the said plaintiff as such - ship-master,” “ or any goods laden on board of any vessel by him “ commanded.”
    The second count charged the defendant with having declared, in “a certain other discourse” -of and concerning the plaintiff “ in the line of his calling as a ship-master, that he had discharged “ the plaintiff, from his employ, for dishonest conduct;” “ and that if - any further information was wanted as to the character of Captain “ Shipman, they (the persons to whom the words were addressed) “ could send to the office of the defendant.”

    The third count charged the defendant with having written and published the same words set forth in the first count “ in the pre- “ sence and hearing of the officers of divers Marine Insurance Com-“ponies in the city of New-York,” by reason whereof, “ divers citi- - zens and neighbours” “ refused and declined to retain and employ” the plaintiff as a ship-master “ or otherwise, or to ship or freight any goods or merchandise on board of any vessel while commanded by him.”

    The fourth count alleged that the defendant, on the same day and year, and at the place aforesaid, wrongfully, maliciously and unjustly “ did make, publish, write, and utter” “ in the presence and hearing” “ of the officers, to wit, the President, Secretary and Di- “ rectors of divers Marine Insurance Companies in the city of New-“York, the following false, scandalous, malicious and defamatory “ libel, of and concerning the plaintiff,” “in.substance and effect “ as follows, that is to say, that he (the plaintiff) had sawed up “ wood” “ to make it hold out(with inuendos as to the mean» ing of the words,) “ by means whereof, the said President, Secre- “ tary and Directors, of the said Marine Insurance Companies,” “re- “ fused and declined to insure a certain ship or vessel,” “ called “ Bunker-Hill, then under the command of the plaintiff,” “ or any “ goods ormerchandise laden or to be laden on board said ship or “ vessel,” on her intended voyage to a foreign port; and by reason thereof, certain shippers or freighter §, were deterred and prevented, from lading goods and merchandise on board said ship,” whereby “ the plaintiff’s intended voyage,” “ was delayed and defeated.”
    The defendant pleaded the general issue, and gave notice of the following special matter to be offered in evidence at. the trial, viz :'
    That before the speaking and publishing of the words “in the first and second counts” mentioned, the defendant “ had heard from “ and been told by one George Hughes, first officer of the packet “ brig Medina, being the ship and vessel in the declaration men- “ tioned, of which the said plaintiff was master,” that he had been directed by the plaintiff “ to make the number of sticks of fustic on “ board said vessel to hold out, and if necesary in order to do so, “ to saw and split the said sticksand that the plaintiff at the time of uttering the words charged in the declaration, declared to the persons in whose presence they were spoken, “ that he had “ heard and been told the same by the said George Hughes.”
    And for a further plea, to the second count, the defendant set forth, by way of justification, that on the first day of May, 1828, the plaintiff was master of the packet ship Medina, of which the defendant was owner. “ And that on board the said vessel and “ whilst the said plaintiff was master, there had been shipped á “ quantity of hides of excellent quality, consigned to one Jehara“sy of the city of New-York, which hides the said plaintiff
      “ caused to be mixed up with and exchanged for hides” “ belong “ to him,” “ of greatly inferior quality,” and “ caused the said in- « £eI£or hides” “ to be delivered to the said Jeharasy in the place “of” those originally consigned to him. “ Wherefore the said “ defendant,” “ did speak and publish the said words,” &c., “ in “ the said second count mentioned, as he lawfully might for the “ cause aforesaid.”
    The plaintiff joined issue, upon this plea of justification, denying that he exchanged the first mentioned hides for others of inferior value, &c.
    At the trial, the plaintiff called one Alexander Thompson as a witness^ who testified, that he was the Inspector of the New-York Insurance Company. That he was present at a conversation which took place between the defendant and Mr. McEvers the President of that Company, in May, 1828. The defendant said, that he had discharged the plaintiff from his employment, for malpractice or dishonesty, as to the marking of some hides and . cutting a log of dye-wood in two. The defendant accused the plaintiff of having marked and changed hides of a superior quality for those of an inferior quality and of less value, and of cutting the logs of dye-wood to make them hold out. That Captain Ship-man had been in the defendant’s employment in the Tampico and Vera Cruz trade, and understanding that there was like to be a deficiency in the logs, Captain Shipman directed the mate to cut them in two to make them hold out. The Company refused to insure the plaintiff in consequence of this information.

    To the question, which elicited this last answer, the counsel for the defendant objected, on the ground, that the special damage was averred too generally in the declaration, to let in the proof: but the objection was overruled by the presiding Judge.
    The witness then further testified that the vessel, on which tire 'said company refused to make insurance, was the Bunker-Hill. That the plaintiff’s character had always stood fair with the company until the time of said conversation, but after that, they refused to insure for the plain I iff, “ until he had cleared up his character

      On his cross-examination the witness further testified, that the defendant, at the time of the conversation, stated, that he had his information from Mr. Hughes, the plaintiff’s first mate, who said he was directed by the plaintiff to cut the sticks and mark the hides.
    Upon this testimony the plaintiff rested his cause.
    The defendant then introduced the deposition of Hughes, the mate, in evidence, and called Jeharasy and several others as witnesses, to prove that the marks of a number of hides brought in the ship Bunker-Hill (of which the plaintiff was master) from Carthagena to New-York, and consigned to Jeharasy, had been altered by the direction of the plaintiff and that those hides, had been exchanged by him, for others, of inferior quality belonging to himself; the inferior ones being intermingled with the good ones, and delivered by the plaintiff to Jeharasy. The defendant also read the deposition of Hughes, and produced some other testimony to prove that the plaintiff had directed the mate, if necessary, to cut and split some of the sticks of fustic, brought home in the same ship, for the purpose of making their number correspond with those taken on board in South America. The defendant also introduced evidence, for the purpose of showing, that he was not actuated by malice in making his communications, having done what he deemed to be his duty.
    The plaintiff on his part then called a number of witnesses, to rebut the whole of this evidence, and to impeach the accuracy of Hughes’ deposition. But as this testimony has no material bearing upon the questions of law decided by the court, it is omitted here.
    During the course of the trial, the plaintiff called Thomas H. Merry as a witness; and in the progress of his examination, he was asked by the counsel for the plaintiff, “ what the general character of the plaintiff was 1” To this question the counsel for the defendant objected, upon the ground that the general character of the plaintiff had not been put in issue, nor impugned by the defendant.
    The objection was overruled by the Judge, and the witness testified, that he had known the plaintiff for several years, and that his character was good. The plaintiff’s counsel then subsequently examined several other witnesses upon the same point, and gave the same answer. The plaintiff also called one Henry Austin as a witness, who testified, that the plaintiff at the time of his difficulty with the defendant, commanded the Bunker-Hill. That the plaintiff had purchased that vessel, but owing to the difficulty with the defendant, the bill of sale was not delivered to him. That the company having refused to insure for the plaintiff, he could not procure sufficient credit to pay for the vessel.

    John Austin, a witness called by the defendant, also testified to the same point, and stated that he himself applied to the New-York Company, for insurance on the freight of the Bunker-Hill, but that the president refused to insure, on account of the defendant’s statements. •
    The Judge charged the jury, that he had doubts whether the words stated in the declaration, were actionable in themselves, without an allegation of special damage ; but for the purposes of their decision they were to be considered as actionable. That the slander, charged in the declaration, might be disproved by the fact, that the occasion on which the words were spoken, and the purposes of the defendant, might be such as to justify their being used. That if Hughes had made the statements, set forth in the defendant’s notice, to the defendant, and the latter believing them to be true, had communicated them to the Insurance Company, with good motives and for justifiable purposes, then, no malice could be inferred from the speaking of the words. But if on the other hand, the communications had been made by the defendant, for the purpose of injuring the plaintiff, and with a view to put down all rivalry in the trade in which he was engaged, they could be by no means justified. If Hughes spoke falsely, relative to the hides and fustic, but was believed by the defendant, and if the latter communicated his statements, with good motives and for justifiable ends, to the company, giving at the same time the name of his author, then the defendant must be acquitted ; for in that case, Hughes would be deemed the slanderer and not Burrows!

      That the defendant, having pleaded a justification of the words charged in the second count of the declaration, was bound to assume the affirmative and prove their truth. Whether he had done so, was a question of fact for them to consider: and if they put confidence in the testimony of Hughes, corroborated by that of the defendant’s other witnesses, the weight of testimony was probably with the defendant. But if, on the contrary, they thought that the plaintiff had successfully rebutted the defendant’s evidence, and if they believed that the defendant was actuated by malicious motives, exemplary damages in such case could not be deemed improper.
    The jury returned a verdict in favour of the plaintiff for one-thousand dollars damages and six cents costs.
    The defendant now moved for a new trial:
    I. Because proof of special damage was not admissible under the pleadings.
    II. Because evidence of the plaintiff’s general good character was inadmissible, until put in issue by the defendant.
    III. The verdict was against law and evidence.
    IV. The damages were excessive.
    There was also a motion in arrest of judgment for defects in the declaration.

      Mr. D. Graham and Mr. Ogden Hoffman, for the defendant,
    as to the first point, contended, that the special damage was not set forth with sufficient certainty in the declaration, to entitle the plaintiff to introduce any evidence to prove it. The rule is, that the special damage must be so stated, that the defendant may come prepared to meet the charge. It is not enough to set forth in general terms, that “ certain Insurance Companies in the city of New-York” “ refused to insure any vessel commanded by the plaintiffbut the particular insurance company or companies, which so refused should have been specified in the allegation. How could the defendant come into court prepared to meet a charge so general in its terms 1 Was he bound to make inquiry at every insurance office in the city of New-York, and ascertain whether that particular company was the one referred to in the declaration ? Or was not the plaintiff rather, (who of course knew to which company he referred,) under every legal obligation to point out to the defendant the exact charge he intended to prove 1 When it is said that the plaintiff was bound to set forth with exactness the particular individuals, who refused to make insurance for the plaintiff, we mean that he was thus bound, if he expected to give evidence, under the charge, at the trial.

    The words in the first count are clearly not actionable per se, and the rules of pleading are of course directly applicable to that; and the same remark might be extended to the third and fourth counts, were it necessary to examine them. To make words actionable from their application to the plaintiff’s calling, they must relate exclusively to that specific employment, and connect themselves with it per se. They cannot be extended by inuendos beyond their natural meaning, so as thereby to be converted into a cause of action. Here the inuendoes extend the meaning of the words not actionable, into such as may be slanderous. But the two last counts may be laid entirely out of the question, for there was no evidence offered at the trial to sustain them. The plaintiff did not pretend to support the charges laid in those counts, or to show that the defendant had ever reduced his remarks concerning the plaintiff to writing in any form. It is perfectly clear, that if the words themselves are not actionable, then the special damage must be set out in the declaration. In this case, however, the declaration does not allege any injury to the plaintiff, from a refusal on the part of the company to insure for him. It states the injury in the most general terms, and the court cannot, by intendment, say, that the injury fell upon the plaintiff.
    But, if we suppose the words to be actionable per se, then the plaintiff was not bound to state any special damage, and the general allegations would have been sufficient. If stated, he was under no obligation to prove the special damage, but might have treated that part of his declaration as a nullity, and have passed it by. But the complaint is here. The plaintiff has attempted to allege special damage, and has stated it incorrectly: under these circumstances, he ought not to have been permitted to prove it. We object, not to the statement of the special damage in the declaration, but to the proof which was let in. under the improper or imperfect allegation. The evidence thus offered, must have had a serious effect upon the minds of the jury; for it brought down a general charge to a point, so that the plaintiff’s loss was made certain and tangible. Witnesses testified, that the New-York Insurance Company refused to underwrite upon the plaintiff’s property in consequence of the defendants’ imputations. They went farther, and showed that the plaintiff’s credit was so injured thereby, that he could not pay for the vessel which he had contracted to purchase.
    The damage thus proved was special in every sense of the word, and that proof had a powerful tendency to produce a verdict against the defendant. Had he known before the trial that it was the New-York company, which refused to effect the insurance, then he might have come prepared to explain the circumstances under which the charge was made, and the motives, which induced him to make it.
    In the second count, the damage is laid more broadly than the charge will warrant, and it may be deemed defective for this; But we rely upon the general proposition, that the evidence was improperly admitted. [2 Starkie Ev. 870. pt. 4. 1 Chit. Plead. 389. 1 Saund. 243. b. n. 5. 10 John. Rep. 283. 1 Siderfin, 396. 1 Roll’s Abr. 58. Bull. N. P. 7. 2 Phil. Ev. 108. Starkie on Slan. 322.]
    II. Evidence of the plaintiff’s general character was also improperly admitted. The action of slander, it is true, puts the plaintiff’s character in issue as to this: it exposes it to the defendant’s general attack. If a person has spoken slanderous words of another, whose character is infamous, that general character may be proved by the defendant at the trial, to show that the plaintiff is not worthy to receive damages. But if the defendant abstain from any such attack, then he admits the plaintiff’s general character to be good, and the latter will not be permitted to inflame the minds of the jury by introducing evidence of his general rectitude.
    The reason is this : the evidence must be confined to the issue. If the issue be as to a particular fact, then the testimony must be confined to that, because the verdict must be rendered from the facts, and not from the plaintiff’s general character. A person of spotless general reputation, may be guilty of the particular act laid to his charge, and the minds of the jury are not to be drawn away from the facts relative to the charge by any extraneous proof.
    Evidence of the plaintiff’s rank and condition in life may, in some instances, be given for the purpose of graduating the damages by a proper standard. So in some cases the plaintiff may give evidence of his conduct'where that is the subject matter of the charge. For instance, if a captain of a vessel were charged with improperly carrying too much sail from drunkenness, he might give evidence of his general conduct in that particular. But the rule is inflexible, that the plaintiff can never give evidence of his general character in an action of slander, until it is put in evidence by the defendant himself. [1 Camp. R. 460. Fowler v. The Ætna Ins. Co. 6 Cowen R. 675. Stow v. Converse. 3 Con. Rep. 325. 345. Larned v. Buffington. 3 Mass. Rep. 546. 2 Bos. and Pul. 284. ]
    [The counsel for the defendant also went into an elaborate examination of the third and fourth points, and of the motion in arrest of judgment. But as the court gave no opinion upon these points, the arguments are omitted.]

      Mr. J. Anthon for the plaintiff, contra.

    I. The words in all the counts being introduced with a colloquium as to the plaintiff’s profession or calling are actionable per se; and if so, then the averments of special damage will not vitiate the declaration. Where the words are not actionable in themselves, but the special damage is the gist of the action., then the averments of that damage must be precise. No matter how humble the calling of an individual may be, words spoken of him in relation to that calling, which have a tendency to injure him in it, are held to be actionable. [1 Lev. 115. Demarest v. Haring, 6 Cowen’s Rep. 76. Mott v. Comstock, 7 Ib. 654. Burtch v. Nickerson, 17 John. R. 217.]
    If the words used by the defendant are actionable when applied to a ship-master, then the colloquium sufficiently connects itself with the averment. The first count states, that the injurious words, were spoken with an intent “ to cause it to be believed” “ that the plaintiff was dishonest and unworthy to be trusted with 4‘the command of a vessel as captain thereof.” It then avers that the words were uttered in a conversation concerning the plaintiff and "his calling” and concerning a certain voyage then lately made by hint as master of a certain ship. Can there be any doubt then, that such words, thus uttered, must naturally be deeply injurious to the plaintiff in the line of his calling 1 If so, then they are actionable per sc, without any allegation of special damage; and the special damage is merely in aggravation of the general damage, and it need not be so precisely stated as where it forms the gist of the action.
    As matter of aggravation, the special damage is averred with sufficient precision. If the averment is defective in form, then the defendant should have demurred, and he could not take advantage of the defect at the trial.
    He is now driven on that point to his motion in arrest of judgment. But the matter alleged in aggravation, was a natural result of the slanderous words, and as the jury might, under a general count, have been called upon to infer it, it was admissible in evidence without averment. The matter in aggravation was not merely the refusal to insure, but the consequences resulting from the refusal: viz. the loss of freight by persons refusing to ship, when they could not insure. The plaintiff at the trial, abandoned this matter of aggravation ; having only proven the refusal to insure, he went into no proof of consequential loss of freight.

      But the second count is good beyond all doubt, and the defendant’s counsel admit that it is. The words in that count are 0f then^elves actionable, and where that is the case, the averment 0f special damage will not prejudice the declaration ; [Starkie on Slan. 365.] and it need not be averred with any precision. [Stark. on Evid. book 4., p. 871.] The verdict being general, one good count is sufficient to uphold it, and if nced.be, the Judge’s notes can be referred to, for the purpose of directing the judgment to the second count. [7 Cowen’s R. 728.]
    As to the evidence of special damage, it was confined to the testimony of Thompson, and the refusal of the New-York Company to insure. The refusal to insure was no damage per se. The court will, therefore, sustain the verdict if possible, without inferring that the jury gave damages on that score. [1 Bin. Rep. 185. McMinney v. Birch.] There is a fallacy in the supposition that the defendant did not come to the trial prepared to meet the very proof of special damage which was offered. The declaration stated that certain Insurance Companies refused to insure, and the defendant well knew where his attack upon the plaintiff had been made. He in point of fact could not but have known, that it was the New-York Company which refused to insure, and he was not taken by surprise.' The court will not infer that the verdict was given by the jury for the special damage, but on account of the general aggravation of a charge, maliciously made, which they believed to be untrue-. The defendant has not, therefore, any real cause of complaint on this ground, and the court will not grant him anew trial unless, substantial justice requires it.
    II. The proof as to the general character of the plaintiff was not offered until after the defendant had.gone into his justification, and charged the plaintiff with dishonesty amounting to a felony. It was therefore admissible, first to' rebut the charge, and second, to aggravate the damages. The plaintiff had a right to offer the evidence, after the defendant’s proof, for the purpose of showing to the jury, that it was in no wise probable, that any man of good character would descend to the contemptible conduct with which he was charged ; especially where the whole of the defendant’s evidence was controverted, and the facts charged against the plaintiff were left in doubt.
    In an action for a libel, where the defendant justifies, the plaintiff may offer his character in evidence, before he is attacked at the trial; especially where the defendant’s charge imputes a crime to the plaintiff. The very imputation takes away the presumption of good character, and the plaintiff ought upon every principle, to be permitted to show what his true character is. [Stark. on Ev. 367 370., Book 4. King v. Waring, 5 Esp. R. 13. 3 Mass. Rep. 546. Harding v. Brooks. 5 Pick. Rep. 244.]
    III. The damages are such as the Judge contemplated and charged the jury to give, if they disbelieved the testimony of Hughes and should come to the conclusion that the slander was circulated by the defendant to put down the plaintiff’s rivalry in trade, and this matter was entirely within their province. Besides this, the evidence was sufficient to warrant them in coming to (hat conclusion.
    IV. No new trial can be granted for excessive damages, unless they are so flagrantly excessive as to evince corruption or prejudice on the part of the jury. [Townsend v. Hughes, 2 Mod. R. 150. Beardmore v. Livingston, 2 Wil. 248. Sharpe v. Brice. 2 Sir W. Black. R. 942. Gilbert v. Bertinshaw, 1 Cowp. 231. 4 Term R. 651. Coleman v. Southwick, 9 John. R. 51. Southwick v. Stephens, 10 Ib. 443. Grant on new trials.]
   The Chief Justice

in delivering his opinion, observed, that a new trial ought to be granted upon the ground, that the evidence as to special damage was improperly admitted: that the averments in the declaration were not sufficiently definite to allow such evidence to be given on the part of the plaintiff. The first count alleges, that the defendant with the intent to cause it to be believed, that the plaintiff was dishonest and unworthy to be entrusted with the command of any vessel, “ and to prevent certain Insurance Companies in the city of New-York from under-. “ writing goods,” &c., uttered the words complained of. The fourth count sets forth, that the defamatory words were uttered anc) published in .the presence and hearing of the President, Secretary and Directors of divers Marine Insurance Companies in the cjty. 0f New-York, by means whereof the said Marine Insurance Companies refused and declined to insure a certain vessel called the Bunker-Hill,' &c.

Now these general allegations, it is obvious, would give the plaintiff at the trial the range of all the Insurance Companies in the city of New-York, as to his proof of special damage. But the' defendant would be wholly unapprised of the particular company, which the plaintiff intended to prove to have refused to make the insurance, and of course would have no opportunity to prepare himself to rebut or explain the evidence, which might be offered against him.

The rule is well settled, that no evidence can be given in an action of slander, of any special damage sustained by the plaintiff) unless it be particularly set forth ' in the declaration. The object of the rule is to prevent the defendant from being taken by surprise. In the present case, the plaintiff was permitted under this declaration, (which refers in general terms to certain Insurance Companies,) to prove that the New-York Insurance Company, refused to insure the plaintiff in consequence of information communicated by the defendant to their president. The defendant being unapprized of the particular company referred to by the plaintiff in his declaration, had no opportunity of showing the circumstances under which his information was communicated, and of course, may have been taken by surprise. The averment of the special damage was altogether too loose, and general to admit the proof, and for this reason there should be a new trial.

The Chief Justice further remarked, that he should give no opinion upon the other point, as to whether the evidence of the plaintiff’s general good character was admissible under the circumstances or not. But that the evidence admitted by the Judge of special damage, being improperly received, he was of opinion that there must be a new trial, the costs to abide the event of ' the suit.

Hoffman, J.

This was an action of slander, tried before me at the last December Term of this Court. The defendant moves in arrest of judgment and also for a new trial, on the ground that improper testimony was admitted. I do not consider it necessary to determine the first question, as, after much reflection, and an examination of the authorities cited oh both sides, I have arrived at the conclusion, that a new trial ought to be granted.’ The declaration sets forth the situation of the plaintiff as a ship-master", the uttering of the slanderous words by the defendant, and that by reason of the same, “ certain Insurance Companies in the “city of New York, refused to insure any vessel commanded by ’“ the said plaintiflj as such ship-master, or any goods laden on “ board any vessel by him commanded.” The plaintiff produced as a witness to support his right of action Alexander Thompson, who testified, that the words charged in the declaration were spoken by the defendant in the office of the New York Insurance Company, of which office he is the Inspector ; and that the said company refused .to insure the plaintiff, in consequence of the information given by the defendant, until the plaintiff should clear up his character ; and that the vessel so refused to be insured was the Bunker Hill, &c. To this testimony the counsel for the defendant objected.

It appears to be a well settled rule of law, “That no evidence “shall be received of any loss or injury which the plaintiff has “ sustained by the speaking of the words, unless it be specially “ stated in the declaration [1 Saunders, 243, note 5.] Nor is it material whether the words be actionable per se, or not. Formerly less particularity was required, when the words were actionable per se, than when they were not; but Williams, in his .notes to Saunders, to which I have referred, observes, “that “ modern practice does not warrant the distinction, and that it “ is now fully established, that the special damage in each case “ must be alike particularly specified in the declaration.” ' This rule has been sanctioned by all the decisions in the English courts, and by the decisions in our own, as far as I have examined them. In confirmation of the principle, I refer to the cases cited by Williams, in his notes to the case of Craft v. Boite, to I. Chitty on Pleading, 385, 386, and to the case of Herrick v. Lapham, 10th John. 281. If this rule be correct, (and that it is I have no doubt,) let us apply it to the particular ,case before us. Under the general allegation, that certain Insurance Companies refused to insure, the plaintiff was admitted to prove that a. particular Insurance Co., to wit, the New York Insurance Co., refused, &c. The reason of this rule is an obvious one. The particular persons by whom the plaintiff was injured, in consequence of the defamatory words, must be within his own knowledge, and they must be so particularized in the declaration, as that the defendant may have notice of the cause of complaint, and be enabled to meet it, if the charge be false, &c. [I Chitty, 857.] If the New-York Company had refused to insure, the plaintiff must have known the fact, and he had no right to conceal that knowledge, and throw the burthen upon the defendant of preparing his defence, by making inquiries of every Insurance Company in .the city of New-York, under the' uncertainty to which particular company the plaintiff might direct his proof.

The counsel for the plaintiff, however, contends, that as the words were actionable per se, this particular testimony became unimportant. This undoubtedly would be a good objection to a demurrer to the declaration, upon the generality of the averment of the special damage; but the objection here, is not to the pleadings, but to the proof, which was admitted under the pleadings. And I have already shown, that the rule is as inflexible, when the words are actionable, as when they are not. A further answer is offered by the counsel for the plaintiff, that the refusal to insure, as proved by captain Thompson, did. not amount to any proof of special damage, ás they did not follow it up by showing, that in consequence of such refusal the plaintiff lost any freights or other advantages. The question, however, still recurs, why' or for what purpose did they offer it 1 If. it could .amount to nothing, why did they persist in offering it, after the objections of the counsel for the defendant ? ‘ If the testimony was not authorized by the pleadings, and the law by which those pleadings are tobe governed, it ought to have been rejected as irrelevant. But it cannot be denied, that with a jury in a commercial city, and composed in part, at least, of commercial men,that the injury or damage that would result from a refusal to insure by a respectable company, on account of charges made against an individual making the application, is so immediate and apparent, that it must and would have a decided influence upon their minds in the verdict that they would render. It would be considered by them as an injury done to him, and the proof of such injury would be admitted, in violation of the rule, “ That no evidence of any loss “or injury shall be received, unless particularly stated in the declaration.” [1 Saunders, 243. note.]

But even if this answer of the plaintiff’s counsel should be admitted to have force, as respects the testimony of captain Thompson, does it apply to the testimony of Henry and John Austin, who were also produced by the plaintiff, subject to the objection of the defendant’s counsel 1 Henry Austin testified, that the plaintiff commanded the Bunker Hill; that he purchased her, but that the bill of sale was not delivered on account of the difficulty with the defendant, and that the company having refused to insure, the plaintiff could not procure sufficient credit to pay for the vessel, that the witness and dthers who had been concerned in the purchase were injured as well as the plaintiff. John Austin testified that he applied to the New-York Insurance Company for insurance on the freight of the Bunker Hill; that the president refused to insure on account of the statements of the defendant; that the Bunker Hill had been bought by the plaintiff, but the bill of gale had never passed. He could not remember the names of the applicants for freight, nor who had refused to give it, because the office would not insure until the plaintiff’s character should be clea^d up.

This testimony is to be taken in connection with the previous testimony of captain Thompson, who hud proved, that in consequence of the alleged slander of theplaintiK,.the N. Y. Co. had refused to insure. And U. A.ustm testifies, that hr consequence of this refusal, the plaintiff was prevented from consummating a contract which he had entered into for the purchase of thq Bunker Hill, and that no bill of sale was delivered to the plaintiff, because, on account of such refusal by the company, he could, mot procure sufficient credit to pay for the vessel. This testimony appears to me not only to make out an injury sustained by the plaintiff; but amounts to proof of a clear technical special damage sustained. The ordinary cases in which special damage is alleged to support words not in themselves actionable, are those in which, by reason of the words, the plaintiff lost the benefit of some contract which he would otherwise have had. It is so, “ When a communica- “ tion or treaty of marriage is alledged, and the marriage was “ lost by reason, of speaking the words.” [Moody v. Baker, 5 Cowen, 353. Opin. of Woodworth, J.] It is so in the usual cases of slander of title, although in these latter, the plaintiff is prevented from selling, on account of the slander: and the general rule undoubtedly is, “ that when the plaintiff is prevented from “ succeeding to any preferment, benefit, or advantage whatever, “ by reason of the slanderous words, he may maintain an action “for the special damages.” [Starkie on Slander, 160.]

The law would therefore presume that this contract for the purchase of the Bunker Hill wouldhave been a gainful contract to him, and even if it did not, H. Austin’s testimony removes all doubt, by clearly proving that the plaintiff, as well as the witness and others who were concerned in the said purchase, were expressly injured by the purchase not being consummated. Had the plaintiff consummated the purchase, as he might have done, had it not been for the slander, he would have been entitled to the freight of the Bunker Hill; and J. Austin proves that applicants for freight refused to give it, 'because.“ the offices would not insure.” By what averment in the declaration was this testimony covered l So far from being particularized, there is hardly a general averment that would embrace it; and if the rale he as I have stated it, the particular persons with whom the contract was made for the purchase of the vessel, ought to hare been named ; and unless so named, the testimony ought n»i to have been received. If not admitted to prove special damage, it was not admissible to aggravate the ■damages by pawing a particular damage or injury in addition to the general one that the law infers. I am therefore of opinion, that I erred upon the trial in admitting the testimony I have referred to. J may be permitted to sav, that the testimony was admitted by me with strong doubts, which I expressed upon the trial at the time, and in the absence of all authorities. Subsequent examination, and the arguments of counsel, have satisfied me that I was wrong, and I am free to retract the error.

The second point on which the defendant relies is, that the plaintiff was allowed to prove his general character, without any impeachment of it by the defendant, except so far as the particular facts proved in justification, imputed dishonest conduct to him. The plaintiff insists that he had that right, as the justification of the defendant, and the evidence offered under it, directly charged the plaintiff with dishonest conduct, and that the plaintiff might therefore show his general character for honesty and integrity, to rebut the specific facts proved by the defendant, or the inference to be drawn from them. To sustain this position, the plaintiff relies upon the practice in criminal proceedings, where the person indicted is allowed to meet the specific proof of the charge laid in the indictment by evidence of his general character. This, however, is an exception to the general rule, and is recognized as such exception in all the books. The case of The Attorney General v. Bowman, cited in the note to 2 Bos. and Pul. 532, is in point. That was an information, proceeding against the defendant on a charge of corrupting officers and keeping false weights. The very essence of the proceeding was founded upon proof of corruption on the part of the defendant; but the prosecution" was for the penally, and not for the crime. To meet this proof, testimony was offered of the general character of the defendant, to show that he was incapable of committing such a crime. But the testimony was overruled. Eyre Ch. B. says, I cannot admit it in a civil suit: in a direct prosecution for a crime, such evidence is admissible. If such evidence is admissible in this case, it would be necessary to try character in every charge of fraud. The rule that prevails in criminal cases, does not therefore apply: and to the decisions in civil cases in similar and analagous ones must we refer for the true rule to govern us in this particular cause.

The circumstance of a justification being pleaded, can be, Í should apprehend, of no farther Importance, than as it affects the right to introduce tlxe testimony on the part of the defendant, tending to prove the charges against the plaintiff: for if by the rules of pleading, he had been allowed to do it under the general issue, the principle would still be the same; and that principle, if it be correct, must be, that when the defendant is allowed, under the pleadings, whatever they may be, to prove substantive facts of fraud, on the part of the plaintiff, that the plaintiff may meet those facts by proof of general character. I do not find that this principle has ever been sanctioned, except in the case cited from 5th Esp. p. 13. (King v. Waring and wife,) which is a solitary case—a nisiprius decision—and is contrary to the general spirit of all the cases governing similar circumstances.

A contrary principle is recognized by Lord Ellenborough in Bamfield v. Massey. [1 Camp. 460.] by our Supreme Court in Fowler v. Ætna Ins. Co. [6 Cowen, 673.] In this last case, the defendant, offered evidence of fraud on the part of the plaintiff, and the plaintiff met this charge by proof of his good character for integrity. Chief Justice Savage says the testimony was improperly admitted, and observes that every man must be answerable for every improper act, and the character of every transaction must be ascertained by its own circumstances, and not by the character of the parties. This principle I conceive must be equally applicable to a case of slander, except that in such action the defendant is allowed to impeach the general character of the plaintiff, (a question thatis now settled, although upon it formerly the court were divided; and when that is done upon his part, the plaintiff is allowed to meet such general impeachment by proof of general good character on his part.

But a case very similar to this, has been expressly decided by the Supreme Court of Errors of the state of Connecticut. [Converse v. Stow, 3 Conn. 325.] That was a case of libel, charging the plaintiff with dishonest practices. The defendant justified, and in answer to his proof, the plaintiff offered his general good character in evidence. The court decided that the testimony was inadmissible, and the opinion is not only entitled to weight as the decision of a court of a sister state, but also from the general reasoning and able opinion of Chief Justice Hosmer in support of it.

I have gone more at length into the examination of these questions, than I should otherwise have done, from the circumstance, that the cause was tried before me, and that it was through my ruling that the testimony was admitted. I think the defendant is entitled to a new trial.

[After delivering this opinion, Judge IIoffman remarked, that the case of Harding v. Brooks, [5 Pickering's Rep. 244.] had just been put into his hands by the counsel for the plaintiff. That he had examined the case with care, and found some principles laid down in it, which apparently conflicted with the opinion he had formed, and the cases he had cited. That, although he entertained the highest respect for the decisions which emanated from that tribunal, yet he could not subscribe to their correctness in the case referred to, where they differed from the opinions of this court upon the same subject, especially as no authority was cited by the learned Judge in Massachusetts in support of his posy tiene.]

Oakley, J.

This was an action of slander, in which the plaintiff obtained a verdict. The defendant now moves for a new trial on two grounds: 1st. That evidence of special damage was admitted, and 2ndly, that the plaintiff was suffered to give evidence of his general good character, when it was not impeached by the defendant.

It appears to be the established rule, that no evidence can be given of any loss or injury sustained by the plaintiff, unless it be specially stated in the declaration, and this, whether the special damage be the gist of the action, or whether the words be actionable in themselves, [1 Saun. 243. b. (n. 5.) 2 Phil. Ev. 108.] In the present case, proof was given that one of the Insurance Companies in New-York had refused, ih consequence of the words spoken by the defendant, to insure a vessel belonging to the plaintiff; and that he thereby sustained a special injury. This proof was not admissible under the pleadings, the averment of special damage, being altogether insufficient. It is impossible to say what influence this evidence may have had upon the verdict of the jury.

The plaintiff was also allowed to give evidence of his general good character after the defendant had gone through with his defence, without impeaching it. This also strikes me as inadmissible. The general rule, as laid down in elementary writers, [2 Phil. Ev. 107.] is, that the plaintiff cannot give evidence of the fairness of his character until it is attacked. It is presumed to be good, until the attack is made, and the plaintiff must rely on this general presumption, until he is assailed. Such has always been the practice at nisiprius, as far as my observation has extended. The defendant may, under the plea of not guilty, assail the general character of the plaintiff, and the latter is bound to be always prepared to repel the assault. But, if the defendant relies on a justification of the charge, by proving the plaintiff’s guilt by direct evidence, it would operate as a surprise on him, to permit the plaintiff to repel that evidence by proof of general character.

In the case of Harding v. Brooks, [5 Pick. 244.] the Supreme Court of Massachusetts have held, that the plaintiff may give evidence of general good character, to repel the proof offered by the defendant under the plea of justification. This case is opposed directly to the conclusion which I have adopted; but I cannot consider it as a controlling authority. The uniform practice in this state, has been otherwise, and I think it the safe and correct rule.

JVeto trial granted.

[H. M. Western, Att'y for the plff. D. Graham, Jr. Att’y for the deft.]


author: The court

text:
    Jonathan Lawrence versus John Titus, Jr., Daniel Y. Townsend, & Richard Ellis.
    Feb. Term, 1829.
    In actions of trespass against an officer and persons acting in his aid ; where the defendants appear by the same attorney, but sever in their defence, and are suc- ■ cessful; the officer is entitled to double costs, and each of the lay-defendants, to single costs for all items not allowed to the officer.
    This was an action of trespass, de bonis asportatis, brought against the defendants, (one of whom was an officer) for seizing property under an execution against one Charles Lawrence, which the plaintiff claimied as his own.
    The defenants severed in their defences, and gave distinct pleas. The officer pleaded not guilty. Each of the other defendants, pleaded not guilty, and gave special notices, that they were plaintiffs in the executions under which the officer acted, &c. Verdict for the defendants.
    Their case was submitted to the court for directions to the taxing officer.

      Mr. J. Jlnthon for defendants, insisted,
    I. That each defendant was entitled to double costs: the officer, as expressly protected by the statute and the other two defendants, as acting in his aid.

    II. If the lay-defendants are not entitled to double costs, then they claim full bills of single costs, and the officer claims double costs.
    For the defendants were cited the statute [1 R. L. 155.] and the case of Row v. Sherwood, [6 John. R. 109.]

      Mr. Wm. S. Sears for the plaintiff contra contended.
    I. That the attorney for the defendants in this cause was entitled to but one retaining fee : the same attorney having appeared for all the defendants.

      II. That the attorney for the defendants is entitled only to single costs, except for the separate plea of the defendant, Ellis ; ^ whole proceedings in the cause having been conducted jointly by the defendants, in the name of the same attorney. He cited, Wales v. Hart & Dowd. [2 Cowen, 426.]
   The court

directed,

I. That the officer should be allowed a full bill of costs, doubled.

II. That the other defendants should be allowed single costs, for all items, not allowed to the officer.

[Mr. E. Anthon, Att’y for the plffs. Mr. W. S. Sears, Att’y for the defts.]


author: The Court,

text:
    Lewis K. Bridge versus The Niagara Insurance Company.
    Feb. Term, 1829.
    All losses and expenses necessarily, prudently or reasonably incurred in respect to property saved from shipwreck, from the time of the shipwreck, to the time when the property can be directly transported to the place of its ultimate destination, are proper charges upon the property so transported and are, where the property has been insured, to be borne by the Insurers.
    Sums paid for transporting the master and crew, and for their support during the same period, while they are guarding and protecting the property, are also to be borne by the insurers. The master and seamen, after becoming disconnected from the vessel by the shipwreck, are entitled to compensation as labourers or salvors for their services in transporting and saving the property, to be allowed according to the nature of the services.
    Where dollars taken by the master and crew from a stranded vessel, carried on shore and buried in the sand, were afterwards stolen before they could be reclaimed, they were not considered as landed in “good safety” and the loss was held to fall upon the underwriters. But the expenses incurred by the master in searching for the dollars are to be apportioned on the dollars alone.
    Where the adjustment of a loss is referred to a referee by a stipulation in a case, the referee is to he satisfied as to the character of the charges in such manner as he may think reasonable ; and in case of difficulty, application is to be made to the court for directions.
    This was a motion to set aside an adjustment of the loss in this case, made by O. H. Hicks, Esquire, to whom the adjustment was referred under a stipulation in the case. [See page 247. ante.]

    On the trial, the plaintiff did not prove any abandonment, nor the delivery of such preliminary proofs, as showed the defendants with exactness, the amount of the property lost: some part appearing to have been saved. The court had, thereupon, decided, that the defendants were liable only for a partial loss and that without interest. On a reference of the testimony to the adjuster, he declared, that he could not state the loss on the testimony at the trial and needed other papers, (which he named) from the plaintiff. The plaintiff furnished these, (objecting however to going out of the testimony on the trial) accompanying the same. with copies of a letter of abandonment, of all the preliminary proofs rendered, and also of the documents upon which the referee finally adjusted the loss: all which he alleged to have been given before action brought. The property saved, consisted of dollars, gold dust, and doubloons. The crew, after the wrecking, landed at first from their boats, at a desert part of the Musquito Shore, and were obliged to bury the dollars, and proceed south, in search of some place of safety. After a few days, two of the crew gave out, declaring that they could proceed no further, and were abandoned by the rest, who proceeded along the coast, carrying the treasure about their persons, and exposed to extortionate charges from the Indians, for services rendered until they arrived at Corn Island. There a small vessel was procured, and sent for the dollars which had been buried; • but on arrival at the place, the dollars were not. found, but had been stolen, and probably by the two men who had separated from the rest of the crew. The vessel returned, and the crew proceeded with the gold from Corn Island to St. Juan de Nicaragua, whence the captain took passage, with the treasure in his charge, to New-York, where he arrived with it in safety. He accounted for the balance (deducting the expenses) to the assured, under a consent from the assurers. Among the charges which the captain deducted, were the following:
    Cash paid sundry Natives, from the time We fell in with them on the Musquito Shore, for transporting us, &c. until we arrived in Corn Island - - -  710 00
    Amount of charter of schooner Sea Gull, to proceed in quest of the specie, &c. buried in the sand per charter party - * 300 00
    Paid J. R. for proceeding to Pearl Key Lagoon, and the adjacent coast, in quest of the same  150 00
    Paid for my board in Corn Island - - - † f 49 50

      “ Passage, myself and crew, from Corn Island to St. Juan de Nicaragua” - - - - - † 60 00

      “ To crew, to compensate them for their services, tranpovting t.he gold from the Mosquito Shore to St. Juan de Nicaragua ------  355 24

      “ Captain’s expences in St. Juan - - - † 16 “
    66 “ passage from St. Juan to New-York - f 120-“
    On the trial, to a question by the plaintiff’s counsel to one of the witnesses, as to what had become of the property saved, the witness answered, that the amount of the cargo received by the plaintiff from the captain, was $3,661 only. Theinvoiceat the time of shipwreck, was proved on the trial to have been $10,983. At the trial, Mr. Hicks was produced as a witness by the defendants, and gave in evidence a statement of the loss as made by him. By the report of the referee, the only items allowed out of the above as charges on the insurers were the two items of $300 and $150, for going to search for the specie.
    The motion now made, was founded upon an affidavit setting forth the delivery in season, (and previously to commencing the action,) of the notice of abandonment, and of the accounts, from which the items and correctness of all the charges on and loss of the shipment appeared. The affidavit also set forth the statement made at the trial by Mr. Hicks, and that it was only referred to him for adjustment, because there was no time for the plaintiff’s counsel, to examine the calculations, and that it much exceeded his present report.
    An affidavit of Mr. Hicks was read by the defendants, stating, that in his judgment, it was impossible on the testimony contained in the case, to adjust the loss on the principles of a partial loss, and that the statement by him produced at the trial, was made on the principles of a total loss.
    Upon these facts and papers Mr. Lord for the plaintiff, contended,
    I. That the adjustment must be upon the testimony given at the trial.

      Evidence was then given as to the amount saved : if this were imperfect, it should have been then objected to : not being objected to, the parties had a right to go to the Jury on it. Besides, there was an unqualified statement produced by the defendants at the trial, proved by their own witness, upon which we had a right to go to the j ury.
    If the adjustment now made had been produced at the trial, we should have given other evidence. A reference to adjust, supposes an adjustment on the facts proved at the trial; it is not to he supposed that we meant to substitute the referee for a jury, or permit him to inquire into facts not proved at the trial, in any way he might think proper.
    By the referee’s goingout of the testimony at the trial, it happens, that while on the trial and argument, we are turned from a total loss with interest to a partial loss without interest; yet on the adjustment, we are met with papers to reduce our loss; the knowledge of which came to the defendants, by our delivery, before the suit, and which delivery, if proved, would have given us interest at least, if not a total loss.
    II. If, however, the court thinks that the adjustment may be upon other testimony than that at the trial, then the cause ought to be open to both parties, and the plaintiff to be permitted to show the abandonment and delivery of preliminary proofs, entitling him to interest. It now appears, that the defendants, who refused to admit an abandonment, actually made out a statement limiting the recovery against them, as for a total loss: and they have not denied the receipt of the letter of abandonment, or the other papers. They had the statements showing all the items of the loss, of which they deny us the benefit at the trial, and enjoy the benefit themselves on the adjustment.
    III. But upon the papers on which the referee acted, lie has rejected sundry charges which ought to fall on the assurers, as a diminution of the property saved, and as parcel of the loss. The policy covers the goods from the time of lading until landed 24 hours, in goodsafety,” and all expenses, charges, aiullossesbefalling the property, directly resulting from the perils insured against, are to be borne by the underwriter. [See Mumford v. Commercial Ins. Co. 5 John. R. 262. Jones' arguendo.] Here the property was not in safety when the crew landed, nor when they proceeded on the deserts of America with the specie about their persons. Their expenses were really salvage charges ;—expenses accrued in bringing the property to safety, and resulting solely from the disaster. The crew were also entitled to an allowance for their services ill transporting the treasure as salvors. [Two Catharines, 2 Mason R. 335.] The loss ought to have been settled as a salvage loss. [Stevens on Average, 76.]

      Mr. G. Griffen contra for the defendants.
    I. This is an attempt, after the court have decided that the case is to be settled as a partial loss, to turn it into a total loss. If the plaintiff is willing to take a new trial, we are willing to have one; but this is not his wish or application, and this is all which the court have the power to do in this respect.
    II. It is impossible to adjust the loss on the principles of a partial loss, on the testimony at the trial. That merely shows what the plaintiff received from the captain, not what the plaintiff ought to have received and the captain to have paid. The captain was the agent of the plaintiff there having been no abandonment : and the defendant’s liability is not for that, which the captain omitted or refused—perhaps unjustly—to pay to the plaintiff. Besides, an adjustment, (where an attempt to recover on the principles of a total loss, ends in a recovery on the principles of a partial loss,) must always involve questions of amounts which could not be settled on a trial; which must be shown from other examination and testimony; and in the present case, the plaintiff cannot complain, since the adjustment has "been made upon papers delivered by him.
    The court cannot refer it to any other person than the referee .object to whose adjustment the verdict was taken.

      III. As to the charges rejected—they were properly rejected by the referee ; they were expenses incurred by the master and crew in getting home, and must have been incurred equally whether they had had the treasure in their hands or. not. The gap01:g were not to have a present of $¡355 made to them by the captain at the expense of the insurer. ' The captain’s board and passage home, are also improper charges, and were properly re- , jected. Besides, there was no evidence before the referee as to the actual disbursement of these sums. Again,- the referee has allowed the plaintiff the specie buried; this was a land plunderage, not a loss by sea perils.
    (Jones C. J. That specie was never landed in good safety: it is the same as if it had been sunk in the sea: it was' buried in. the beach on landing.)

      Mr. Lord in reply.
    As to the charges for the salvage the expense of the crew and captain while transporting the gold, they were charges to which the property became exposed by the shipwreck. Neither principles of humanity nor the circumstances in which the captain and supercargo stood to the crew, as to physical strength, permitted them to prevent the crew from continuing with them and using the gold for the purposes of their common return. The necessities of the crew would have compelled the captain to allow such use of the treasure. Besides, in their numbers there was greater safety, greater probability of transporting the whole property, and it was actually saved by this' means. Policy and justice, as well as law, require the allowance of these charges. As to the evidence of them, it is exactly the same as that upon ‘ which the referee allowed the expenses for going after the specie; and as to those expenses they chiefly differ from the rejected charges in, that the latter resulted in the safety of the property, and the former resulted in a disappointment. Those which were fruitless are allowed, those which were successful rejected.

       Rejected by the referee,

       Allowed,

       Rejected by the referee.

   The Court,

after taking time to advise upon-this case directed the following order to be entered.

On hearing the report of O. H. Hicks Esquire, the referee in this cause, and the affidavits and documents presented by the parties: and after hearing the counsel of the parties, it is ordered, on motion of Mr. Lord for the plaintiff that the said reports with the documents annexed, be referred back to O. H. Hicks Esquire, with these directions of this court in relation to the matters in question.

That all losses, charges, and expenses necessarily, prudently or reasonably incurred in respect to the property saved, from the time of the shipwreck to the time when the property could be directly transported to its ultimate destination are proper charges,, upon the property so transported and ought to-be borne by the assurers. That the sums paid for transporting the master and crew, for their support, board, and lodging and passages during the same period, are also proper charges upon the property, and ought to be borne by the assurers. That the master and seamen-also, after becoming disconnected from the vessel by the shipwreck are. entitled to compensation as labourers, or salvors for then-services in transporting and in saving the cargo; to be allowed according to the nature of the services. That the sums for going after the dollars buried as allowed by the referee, were properly allowed and properly apportioned on the dollars, alone. That the loss of the dollars, was rightly allowed against the assurers. That the referee is to be satisfied of the character of the charges, and the payment thereof, in such manner as may be reasonably thought fit by him, and reference may be had to either of the Judges of this court for directions.

[D. Lord, Att’y for the plff. G. W. Strong, Att’y for the defts.]