author: Jones, C. J.,

text:
    John Turnbull & Michael Phyfe. versus Robert Trout.
    Dec. Term, 1828.
    Where the maker of a promissory note endorsed the same for his own benefit in the payee’s name, by virtue of a parol authority for that purpose communicated to him by the payee, it was held to be well endorsed ; and that the payee was liable upon such endorsement, in the same manner, as if it had been made by himself with his own hand.
    It is not necessary that the authority by which one person executes a written agreement for another and in his name, should be in writing also; although such written agreement may not be for the benefit of the party bound by it.
    Assumpsit brought by the holders of a promissory note against the defendant as endorser. The note purported to be drawn by one Richard H. Arnold in favour of the defendant, and to be by him endorsed. Plea, the general issue.
    Upon the trial, it appeared that the note was not endorsed by the defendant with his own hand, but his name had been written upon it by the maker, for his own benefit, with the assent of the defendant, and by virtue of a parol permission or authority, for that purpose communicated to him by the defendant.
    Under these circumstances, the counsel for the defendant contended, that a parol authority to endorse a note, given to pay the debt of another person, was void under the statute of frauds. But the presiding Judge (Hoffman) charged the jury, that if they believed that the defendant had given to the maker of the note authority to endorse it for him and in his name, that then the plaintiffs were entitled to recover, notwithstanding the authority was communicated by parol.
    The jury found for the plaintiffs and the defendant’s counsel took exceptions to the charge of the Judge.

      Mr. J. Anthon for the defendant now moved for a new trial and contended,
    I. That the authority to sign the name of the defendant as proved in this case, was void by the statute of frauds. The parol authority was void in itself; for it would be a most mischievous evasion of the statute, if the authority might be communicated by parol, while the statute requires the agreement to be in writing. [10 Ves. 311. 18 Ves. 509. 1 Esp. R. 106. 2 Cown. 203. 7 T. R. 207. 7 Mass. R. 233. 1 Marsh, R. (Kentucky) 436. 2 Stark, 606. 1 Sch. & Lef. 22, 27. 31.]
    II. The authority was communicated to a person not capable of exercising it: it should have been given to some third person, and not to the party who was to receive the benefit. [5 Barn. & Ald. 333. 2 Camp. 203.]

      Mr. W. H. Bell for the plaintiffs.
    This is not a case which falls within the statute of frauds, in any shape. It is not a collateral undertaking to pay the debt of another; but it is, in contemplation of law, a new and distinct promise from the endorser to the endorsee, for a proper consideration, to pay the note, if the maker did not. The undertaking of the endorser of a note, payable to order, is not to be considered as collateral, even if the endorsement were granted for the sole accommodation of the maker; for the note, when endorsed, is sent into the market, and becomes negotiable; while a mere collateral contract can have no such currency.
    The fallacy of the argument on the other side consists in supposing that this is a promise to pay the debt of another person. The payee of the note is supposed to have endorsed it for a consideration received by him of the endorsee, and he becomes the drawer of a new bill upon the maker. His promise to pay is con~ ditional, but not collateral: he stands not in the light of a mere surety, but as an original undertaker to pay the amount of the note, if the maker refuse.
    The maker of the note in this case, was the agent of the payee to endorse the same; and it is admitted by the counsel for the defendant, that if the authority given to the agent for this purposehad been in writing, it would have been sufficient.
    Now there is nothing in the statute of frauds relative to the manner in which a principal must communicate his power to an agent; and it is well settled that the authority may be imparted in any manner susceptible of explicit proof. Suppose it were proved that a merchant ivas in the habit of allowing his clerk to endorse and negotiate notes received by him in payment for goods; would he not be bound by such endorsement, unless the holder could prove that the clerk had an expresss authority for this purpose in writing 1—The argument for the defendant, when pushed to its consequences, proves too much, and it is evident, that a case like the present, cannot be within any of the objects of the statute.
   Jones, C. J.,

delivered the opinion of the court.

This is an action of assumpsit on a promissory note by the holders, against the endorsers. The note was made by one Richard H. Arnold, for the payment of $169 89-100, to the defendant ninety days after date, and dated January 19th, 1828.

It was admitted that the name of the defendant endorsed upon the note, was not written by the defendant himself, but by Arnold, the maker. And it was alleged, that the same was so written and endorsed by Arnold, with the assent and by the authority of the defendant, and proof was offered to show the authority.

One witness testified to the admission of the defendant, that he had authorized Arnold, the maker, to endorse his name upon the note, and that if it had been brought to him, he would have v - ten his name upon it himself. Some evidence was offered on .> part of the defendant tending to show that this conversation had reference to a different note: and evidence was alsoprroducetHiy the plaintiff, conducing to the conclusion that the maker had the authority of the defendant to make the endorsement. The question upon the testimony was left to the jury, who gave a verdict for the plaintiff, thereby establishing the fact, that the note was endorsed by the authority of the defendant, and the point on which the defendant now relies for his defence is, that a parol authority to endorse a note for the debt of a third person, which he affirms this to be, is void under the statute of frauds. This point was raised at the trial, and overruled by the judge, and it now comes before us on an exception to his opinion.

I state the exception in the terms of the case; but it is observable, that the facts disclosed to us do not bear out the position it assumes, that the note in question was given for the debt of a third person, within the meaning of the statute. On reference to the case, it appears that the note was drawn by Arnold in favour of Trout, the defendant, and passed by the maker with the name of Trout upon it, as endorser to the plaintiffs—for what consideration, whether in payment of an antecedent debt, or for value received upon the credit of the paper I'lcelf, at the time of the negotiation for it, does not appear. But it ic a negotiable note in the hands of an endosee, and in the absence of all proof to the contrary, must be taken to have been negotiated by the maker for value in the usual course of business, and the question will be whether payment of such a note can be successfully resisted by the defendant on the ground taken upon the argument.

In support of the objection, it is contended, I. as a general proposition, that the engagement of the endorser of a promissory note, is a collateral undertaking within the statute, to answer for the debt of another, and to be obligatory, must be in writing.

II. That the authority of an agent to endorse for his principal must also be in writing, as a parol authority would introduce the very mischief against which the statute is intended to provide.

III. If such parol authority is good, it can only be so when given to a third person, who is not to be benefitted by the exercise of the power; and from these premises the conclusion is drawn, that the authority in this case being by parol and to the person, whose debt the endorsement guaranteed, that authority was invalid.

I cannot accede to the views taken by the defendant’s counsel of the nature of the endorser’s engagement, nor to, the opinion, that the authority to endorse the note was void, because it was by parol. The only engagement of the endorser is for the payment of the note he endorses; and when he is the payee, (as, in the regular course of negotiating, the first endorser generally is,) the note is payable to himself, and is his own debt. When he transfers it to another by endorsement he assigns or passes over to his endorser the note or debt thus due, and payable to himself; and the legal effect of his endorsement is to superadd his own personal obligation as endorser for the payment of the note to the endorsee.

This is the process and legal operation of the transfer of the note by endorsement as between the maker, the payee and the endorsee of the note. And to this pure unmixed case of the note of a maker to a payee and endorsed by the payee to an en- . dorsee, who continues as the holder, we must look for the true nature and legal effect of the engagement of the endorser. In it no feature of an undertaking of the endorser to answer the debt of a third person within the meaning of the statute for the prevention of frauds, is discernable. It is the transfer in such cases permitted by law, of the debt (which the note makes payable to him,)by him to the transferee ; and the obligation the endorsement creates is, that the debt thus transferred by him to the endorsee, in case of the non-payment of the maker at the maturity of the note upon demand, shall upon due notice of the maker’s default be paid by him (the endorser) to the holder. There is no debt due, or owing, or about to be contracted by the maker of the note to the endorsee, for which the payee thus gives his en« dorsement. The first connection the endorsee has with the note is the negotiation and transfer of it to him, for the value he then ,o pays for it: and that value he gives for the endorsed note, as he receives it with all the engagements and liabilities of the parties to it—as well endorser as maker—for the payment of its contents.

Such was in effect the negotiation of this note to these plaintiffs. They received the note, it is true, from the maker, and not from the payee. But the payee having made the maker his agent for the negotiation of the paper with his endorsement upon it, the negotiation of it by the agent was the same as respects the defendant—his constituent, as if he had conducted the negotiation himself in person. Or, if the circumstance differs, the case it makes is still stronger against the defendant. It is in evidence that the note was endorsed by the defendant for the accommodation of Arnold the maker, by Arnold himself, as the agent of the defendant, and was negotiated with the name of the defendant upon it as endorser, by Arnold to the plaintiffs for his own benefit. The negotiation was necessarily of the entire endorsed note, for a consideration to the maker. The delivery of the note to, the plaintiffs gave it no vitality as operative negotiable paper. The only aliment for the promise of the maker, or the engagement of the endorser, was the consideration paid for the note by the plaintiffs. And the endorsement was, under such circumstances, emphatically an original engagement of the defendant, as endorser to the plaintiffs, for the payment of the contents of the note.

The case of Ulen v. Kittridge, 7 Mass. 233. was that of a guaranty by the defendant of his promissory notes, made by one Eliphalet Butman, for one hundred dollars each, payable to Alen or order. The plaintiff declared upon the guaranty, and averred, that in consideration of his forbearance (by his agent) to sue until his return from sea, the defendant promised to guaranty the payment of the notes. It appeared in evidence, that the notes had been left in the hands of an agent for collection during the plaintiff’s absence at sea; that after many fruitless applications to Butman (the maker) for payment, he was notified that the notes would be put in suit, unless they were paid, or the payment of them secured : that Butman and the defendant thereupon went together to the agent, when Butman offered the defendant as surety, and the defendant consented to become security for the money, on condition, that the agent would forbear to sue Butman, the maker, on the note, until the plaintiff’s return from sea. To this condition the agent acceded, and the defendant, for the purpose of the intended security, endorsed the notes. This, then, was a plain case of a guaranty or collateral undertaking of Kittridge, the defendant, to answer for the antecedent and subsisting debt-of Butman, for the consideration of the forbearance of that debt by the plaintiff, who was absent at the time, until his return from sea. It has no resemblance to the case now before us, which is purely the case of the' transfer of negotiable paper to the plaintiffs for value, in the usual course of dealing, by endorsement.

. The rule is too well settled to be now shaken, that a negotiable promissory note like the present,, in the hands of an innocent holder, who takes it in the usual course of negotiation, for a valuable consideration, without notice of any equity or secret trust to it, is obligatory and conclusive upon all the parties, whose names appear upon the paper, and cannot be affected by any of the considerations which belong to collateral engagements for the debts of third persons. Nor can the facts or circumstances (necessary to be shown for those considerations to arise) be inquired into or shown by the endorser in his defence against his endorsement.

But if the engagement of this defendant could be brought within the statute, its obligation could not for that reason be avoided; for it is in writing, and the sufficiency of the writing has not been drawn in question. The only view in which the application of the statute to the endorsement could be material, is the bearing it may be supposed to have upon the second point, which' predicates of an authority to endorse, that, it must be in writing, because the statute is supposed to require the endorsement itself to be in writing, and a parol authority to endorse would introduce the very mischief, against which the statute was intended to provide. But if the engagement of the endorser is not within the act, if the endorsement of the payee of a negotiable promissory note, (passed in the course of negotiation to an endorsee in good faith, and for a fair and valuable consideration,) is in judgment of law an original undertaking to which the provisions of the statute have no application, it must follow, that the special grounds insisted upon by the counsel (in the second point) for requiring the authority of the agent to endorse for his principal, to be in writing, (deduced from the provisions or policy of the statute,) must fail him, and the question will stand upon the general principles of law and commercial usage, applicable to the relation of principa land agent.

Tested by these rules, can there he a serious doubt on the point? In an anonymous case in 12 Mod. R. 564. it was expressly ruled by Lord Chief Justice Holt, that an authority to ci'CMjrse a bill of exchange, in another person’s name, may be by Kviol. This rule has often been recognized by judicial opinions, and its soundness has never, I believe, been questioned. But the principle of the rule is admitted. It is conceded, that the delegation by one person to another, of the power of contracting for him, and of signing the name of the constituent to the contract, may be by parol, except in cases to which the statute for the prevention of frauds is held to apply. If I am right in the views I have preeented of the case, that exception, if admitted, would be of no avail to the defendants. But I am not able to discover any solid ground for the exception. And whether the engagement of an. endorser is to be deemed an original undertaking to the endorsee, for a debt or responsibility of his own, or a collateral engagement to answer for the debt of the maker, and as such (within the statute) a parol authority from the endorser to the maker to endorse the note for him, would in either case be valid in law, and sufficient to charge the constituent with a liability as endorser of the note, however desirable it might be, that the authority of an agent, who acts for the principal in cases which fall within the statute, should be in writing. The 11th section of the statute, which relates to collateral undertakings for the debts of third persons, does not require it, and the uniform construction of the courts has been, that the power of the agent in such cases may be by parol.

In the case of Clinan v. Cooke, [1 Sch. & Lef. p. 22.] the leading question Was upon the sufficiency of a parol authority to enable the agent to bind his principal by an agreement for a lease, and the counsel for the defendant strenuously contended against its sufficiency, insisting that where an authority is given to another to enter into a contract of this description, it must bein writing. But the Chancellor observed, that there was no foundation for that position; that the words of the statute of frauds do not import any such thing, and that there are decided cases to the contrary. He referred to a case as a precise determination in point, which he said was decided in perfect conformity to the statute.

The case referred ’to by the Chancellor was that of Barry v. Lord Barrymore, before Lord Lifford, in Chancery, Michaelmas term, 1770, cited by counsel as furnished by Mr. Fitzgerald, from Mr. Malone’s Notes. In that case, the bill was for the specific execution of an agreement for a lease made by one Underwood, the agent of the defendant. The defendant put in a plea under the statute of frauds to this effect, that the defendant did not put in writing any contract or agreement for making the lease mentioned in thebill, nor lawfully authorise in writing Underwood or any other person as agent for him to make or sign any agreement in writing for any of the lands in the bill, or any memorandum or note for making any lease, otherwise than as the defendant had set forth. The Chancellor held the plea to be evidently bad, because the defendant said that he did not authorize “ in writing;” he held, that the statute does not require the authority to be in writing, and therefore the defendant was not within the statute.

The earlier case of Walker v. Hendon and Cox, [5 Vin. 524. Pl. 45. is to the same point. It was an appeal from the Rolls, in 10th Geo. I. (1724.) The case was, that Hendon, as agent for Cox, entered into a contract in writing with the plaintiff for the purchase of a college-lease, and the bill was against both the principal and agent for a balance due of the purchase money. The decree at the "Rolls was against both to pay the money, and in case Hendon should pay it, then he to be at liberty to prosecute the decree in the name of the plaintiff against the other defendant Cox, who was the principal. Cox appealed, for that he did not give any authority in writing to the defendant Hendon to buy the lease for him, and therefore, by the statute of frauds, he ought not to be held by the contract. But Macclesfield, Chancellor, affirmed the decree, holding that the authority to treat or buy for him, may be good without writing, though the contract itself must be in writing by the statute. The case of Mortlock v. Buller, [10th Vesey, 292.] and Deverell v. Lord Bolton, [l8th Vesey, 505,]citedby the defendant, are both cases of agreements of agents acting under a parol authority of the principals. They show that the agent must be fully and clearly empowered to bind the principal by the. contract, and must keep strictly within the line of his authority: but the Chancellor, in each case, distinctly recognizes and admits the rule that the authority may be by parol, though the agreement must be in writing. In the case of Clinan v. Cooke, before referred to, the question was fully considered in all its bearings, and received an unqualified determination, which fully settled the competency of a parol authority to enable the agent to bind his principal by his contract, and the obiter opinions of the two judges in the only case in which a contrary doctrine appears to have been advanced, were exploded and overruled.

In the case of Ulen v. Kittridge, [7 Mass. Rep. p. 233,] as we" have already seen, the defendant became'the guarantee for the payment of two promisory notes given by one Pitman to the plaintiff, by writing the name of him, the defendant, upon them after they had fallen due upon the consideration of the forbearance of the plaintiff to sue the maker upon them. It was objected that the indorsement or guaranty of the defendant being an undertaking to pay the debt of another, he could not be charged upon the promise because there was no consideration for the guaranty or agreement expressed in writing. To which it was answered, that the forbearance to sue was a valid consideration, and was sufficiently expressed in the agreement, and would be considered at the trial as if written over the defendant’s name, by the witness as his agent, authorized thereto by parol. And the court held, that the defendants signature upon the back of the note was the authority given by him to write over the signature a sufficient guaranty, and such guaranty being accordingly written pursuant to the authority, might be considered as a memorandum signed by the party, within the intent of the statute, as fully as if it bad been written in the, defendants presence, immediately after the sigtiature, and that a parol authority to the agent to fill up the blanks was sufficient in law, and parol evidence was admissible to prove such parol authority.

In the case of Merritt against Clason, [12 John. R. p. 102.,] it was conceded by the counsel, and assumed by the court, that the authorization of the agent under this section of the act, need not be in .writing. In that case, Townsend the broker, who was held, to be the agent of both parties, acted under a parol authority solely, and the sufficiency of his authority to bind the parties by his memorandum in writing, of the agreemeat was expressly admitted. In the case oí Coles v. Trecothick, [9 Ves. p. 249.,] and other equity cases, a written authorization of the agent to write out the contract for the principal, was held unnecessary, and this rule was recognized and sanctioned by the English Court of Common Pleas, in the case of Emmerson v. Heelis, [2Taunt. p. 46.,] and by Chancellor Kent in the Court of Chancery of this state, in the case of McComb v. Dwight, [4 John. Ch. Rep. p. 659.] In commenting on the case from Taunton, the Chancellor approves of the conclusion of the Court of Common Pleas, that the auctioneer is an agent .of the purchaser, and a contract signed by such agent is binding, and that an agent for the buyer need not be authorized in writing. The same rule of constructioi^must apply to the authority of an agent by whom the principal contracts,"and’ becomes answerable for the debt of another, which comes within the same section of the act.

These precedents exhibit a clear, strong and uniform current of judicial opinion for more than a century, in the English Court; and of those of this state, since its organization as such, in favour of the sufficiency of the parol authority of the agent to sign for his|pfincipal; and we cannot against such an unbroken series of decisions in support of it hold it invalid.

The remaining objection to the validity of the authorization in the present case, because it is given to the maker of the note, whose debt was to be guaranteed, is clearly untenable. The interest of the party in the endorsement does not disqualify him for the agency, if the principal is willing to trust him with the powers it confers. It was the intention and design of the defendant to lend the maker of the note the use of his name, as endorser of his paper, and it was but the further proof of his confidence in him, to confer on him the authority to make the endorsement. The agent at the same time he bound him as endorser, must bind himself as maker of the note, and thereby oblige himself to reimburse to the principal the money he might be compelled to pay for him as endorser. And the principal if he confided in the integrity and the solvency of the person he intended to befriend, might be willing to commit to him the charge of showing the extent of the liability. The interest of the maker of the note in the endorsment, and the temptation he would be under to abuse the power, if allowed to prove it, would be a strong objection, and perhaps conclusive against his competency as a witness to establish his authority to endorse. But in this case, his authority is proved by other testimony, and he is not called to establish it by his own oath. I see no solid reason against his capacity to act as agent under either a written or a parol authority. His interest in the endorsement cannot disable him, for the debt created by the indorsement continues against him as maker; and his authority is conferred upon him by the party himself, who alone is to suffer by the act.

The cases cited by the counsel to this point have no application. The case of Wright v. Wardle, [2 Camp. p. 200.,] was an action for the price of furniture supplied the witness, at the request, and on the credit of the defendant. The witness to whom the goods were furnished, and who was then the owner of them, was called to prove that the credit was given to the defendant, and it was objected, that she was not a competent witness without a release, as the goods were furnished to her, and she was prima fade liable for them, and hada direct interest to fix the liability on another. She was on that ground rejected.

Another point was made by the plaintiff on the argument which it may be proper to notice. It was contended that the subsequent assent of the defendant to the endorsement, and his promise to pay the note was a waiver of any exception that otherwise might have been taken to the sufficiency of the authority to endorse; and the cases from 2 Camp. p. 450., and 5 Esp.p. 180., were cited in support of the proposition. I incline to the opinion that this case comes within the principles of those cited by the counsel, and that the defendant ought upon principle as well as precedent, to be precluded from the benefit of a defence which appears from his own admission, not to be very meritorious, and which he so clearly appears to have waived. But my opinion being in favour of the plaintiffs upon the other points of the cause,, it will not be necessary to enter more fully into the consideration of this; therefore, the motion for a new trial must be denied.

Motion denied.

[W. H. Bell, AWyforplff. E. Anthon, AWy for deft. J

IfftTB;—Vide Shaw v. Jfndd, 8 Pick. Pep. 9.


source: Caselaw Access Project

author: Oakley, J.

license: Public Domain

text:
    Henry D. Sewall versus Henry Rodewald.
    Dec. Term, 1828.
    Although the general rule is, that demands growing out of partnership dealings, cannot be set off against individual demands on one of the partners, yet a special agreement for that purpose may of course be made which will be binding on the parties, and entitle the defendant to the set off claimed.
    This was an action of indebitatus assumpsit, brought by the plaintiff as the surviving partner of the firm of H. D. <$- C. B. Sewall, to recover a balance of account, due that firm from the defendant, or the amount of certain advances made by his order. The declaration contained the common Counts, for money paid, money lent and advanced, for goods sold, &c., and a count upon an insimul computassent. Plea the general issue.
    The cause was tried before Mr. Justice Oakley, on the 9'th day of October, 1828. At the trial it appeared, that the plaintiffs were merchants, residing in New-York, that the defendant was a merchant in Baltimore, and that he had a brother residing in Bremen, (Frederick Rodewald,) who was a commission merchant there, and with whom, both the plaintiffs and the defendant had extensive connexions of business. There was no general partnership existing between these parties, several shipments had been made by Frederick Rodewald from Bremen on the joint account of himself, his brother and the plaintiffs; and in the course of this business, the plaintiffs always gave credit to the defendant, for the net proceeds of the shipments made from Bremen on the joint account of all the parties.
    Frederick Rodewald was the owner of a ship called the Louise, and during the summer of the year 1826, he shipped a cargo, consisting-of sheep, rags, glass &c., on joint account, which was received by the plaintiffs at New-York: and one John C. Dunte, an agent of Frederick Rodewald, applied to the plaintiffs to make a return shipment to him by that vessel. This they did, and charged the amount of their advance for that purpose to the defendant.
    On the 26th of august 1826, the plaintiffs wrote to the defendant, and enclosed a copy of their account exhibiting a balance of $5,497. 79 due to them; on the 30th of the same month they drew upon him for $3000, and their bill was duly accepted. The defendant in reply, and in his letter of advice concerning the bill, desired the plaintiffs to send him “a statement of the account of the ship Louise, so as to enable him to make the necessary entries.” On the 6th and 8th of September following the plaintiffs drew, two bills on the defendant, one for $1240. and the other for $12 57, 99, the two together amounting to the exact balance of their, account.
    These bills the defendant refused to accept, but stated that he had written them on the 28th of August 1826, “in words which could not be misunderstood” that he “ would make provision to pay” the “ plaintiffs the whole amount of their purchases for the Louise at maturity in New-York.” He also added, that he had the more right to claim indulgence from the fact; that the plaintiffs had in their hands,” “ the goods per Louise, the proceeds of the sheep sold and those on hand as an additional security.” As to the drafts, he promised, “ that due payment should be made” to the plaintiffs “for them at maturity.”

      In reply to this letter, the plaintiffs stated, that “ the balance due on sheep, &c. by the Louise, after deducting expenses, would pe but triflingbut that as to the defendant’s claim, “ be'it what it might,” they “ were ready to make it good.” It appeared, during the progress of the trial, that on the 7th day of July, 1826, the plaintiffs and Dunte had settled their accounts with Frederick Rodewald by an agreement in writing, and that a balance of 4,499, 33-100 was admitted by the agreement to be due to the latter from the former. Dunte testified that he was induced to make this settlement in expectation of receiving the balance, and for fear that the plaintiffs would fail. He also testified, that some time before this, the plaintiffs had insisted that they were not interested jointly with the defendant and his brother, in the sheep, &c. by the Louise, and that he (the witness) had discharged them from all liability on account of that adventure.

    Upon this state of facts, the plaintiffs brought the present action. The defendant did not deny his liability to pay the whole amount of the plaintiff’s advances to purchase the return cargo of the Louise, but claimed that he was to be credited with the nett proceeds of the shipment of sheep, &c. which Frederick Rodewald had made by that vessel for the joint account of all the parties.
    The plaintiffs resisted this claim, upon the ground that their demand upon the defendant was for his own individual debt, founded upon his promise to pay the amount of their advances to purchase the return cargo of the Louise: that the adventure by that vessel was upon joint account, and being a partnership concern, could not be set off against the defendant’s individual debt. A number of letters, accounts, and statements were spread before the jury by the plaintiff and by the defendant, and several witnesses were called to substantiate the positions assumed by the respective parties. But the facts stated are supposed to be sufficient to a correct understanding of the points of law.
    The Judge charged the jury,
    I. That they could not set off the proceeds of the adventure by the Louise, against the claim of the plaintiffs, unless they found that they had made an express promise to credit the defendant with the amount of such proceeds. That they ought to be satisfied that there was an agreement to separate the cargo of the Louise from the general partnership accounts, or it could not be done.
    Secondly, that they were to consider whether such agreement, if made, was not altered or modified by any thing done subsequently by Henry Rodewald. If he had authorized the agreement made by Dunte, or afterwards assented to it, that then such offset could not be made.
    Thirdly, that if the set-off should be made, the account must be settled, for the purpose of ascertaining the amount of such set-off, in the same manner as if settled with the defendant, and Frederick Rodewald.
    The jury found a verdict for the plaintiff for six hundred and six dollars and forty-five cents.

      Mr. J. Blunt, and Mr. R. Sedgwick on behalf of the plaintiffs, now moved for a new trial and contended,
    I. That the defendant was bound by his express promise to pay the balance of the plaintiff’s account, as exhibited on the 25th of August, 1826.
    II. The supposed agreement or promise of the plaintiff’s mentioned in the charge of the Judge, to credit Henry Rodewald with the proceeds of the cargo of the Louise, was without consideration and not binding.
    III. There never was any agreement on the part of the plaintiffs, to separate the cargo of the Louise from the general partnership concern, and the verdict was, in this respect, without evidence.
    IV. In order to authorize the set-off claimed, it ought, at all events, to have been shown that there was an express or unqualified agreement that the same should be made, whatever might prove to be the state of the accounts to which Frederick Rodewald was a party or in which he was concerned.
    V. If any agreement was made it was waived.

    VI. After the agreement made with Frederick Rodewald, Henry R. had no right to interfere with the same, and he was bound by it, so far at least as F. R. was concerned.
    VIL After that agreement, Henry R. could not claim any thing on account of the partnership transactions, except in a Court of Equity.
    VIII. The debt claimed to be set-off was due if at all to Frederick R. and Henry R., it was not therefore a subject of set-off between the parties to this suit.

      Mr. J. Boyd for the defendants contra, contended,
    that the Judge’s charge was unexceptionable in point of law, and that the finding of the jury under the charge was fully justified by the evidence.
   Oakley, J.

The plaintiffs in this case were merchants residing in New-York; the defendant, a merchant at Baltimore; and Frederick Rodewald, a brother of the defendant, was a merchant residing at Bremen. F. R. owned the ship Louise, and several shipments had been made from Bremen by that and other vessels, on the joint account of the plaintiffs, the defendant, and F. R. There was no general partnership existing between them, but they were jointly interested in the particular cargoes shipped. In the general course of the business, the plaintiffs always gave credit to the defendant, for the nett proceeds of the shipments made by F. R. his brother, on the joint account of the then houses. In the summer of 1826, a cargo of sheep, rags, &c. by the Louise, was received at New-York by the plaintiffs, shipped by F. R. on joint account. One Dunte, the agent of F. R., applied to the plaintiffs to procure and ship a return cargo by the Louise to F. R., which they did, and charged the amount of their on that account to the defendant, and drew on him for the same at Baltimore. The first,draft was accepted; but a subsequent one was not. The defendant, however, promised to pay it at maturity, and not having done so, this action was brought on that promise, or for the monies expended by the plaintiffs in making the shipments to Bremen, they claiming to have made the same by the order of the defendant. The defendant admitted his liability to pay the amount of the draft, but claimed to be allowed, by way of set-off, the nett proceeds of the shipment made by the Louise from Bremen, then in the hands of the plaintiffs. The plaintiffs resist this set-off, on the ground that this demand on the defendant was for his individual debt due to them; and that the proceeds of the cargo from Bremen being on joint account, could not be set off against it.

The Judge at the trial ruled that such set-off could not be allowed, unless an express agreement was proved to have been made by the plaintiffs, to credit the defendant with the amount of the said cargo shipped from Bremen. The defendant offered evidence to establish such an agreement, and the jury found a verdict for the plaintiffs, for the balance due them, after allowing the set-off. The plaintiffs now move for a new trial. There appears to me no ground to question the correctness of the decision of the Judge. Though the general rule is, that demands growing out of partnership dealings, cannot be set off against individual demands on one of the partners, yet it was never doubted, that a special agreement might be made for such set-off.

In the present case, the jury have found, as I think upon sufficient evidence, that such agreement was made by the plaintiffs. The assent of F. R. to the arrangement for crediting to the defendant the entire nett proceeds of the cargo, may well be implied from the fact, that it had been the constant course of the business for the plaintiffs to credit to the defendant individually, the proceeds of all shipments made on joint account by F. R. The plaintiffs, after agreeing to give the credit to the defendant, could not retract it, without showing that F. R. had interfered to disaffirm such credit, of which there is no evidence in the case.

The jury, in framing their verdict, appear, by a reference to the accounts annexed to the case, to have given the plaintiffs credit for the balance of their account-current with the defendant» as stated by themselves, and to have charged them with the nett proceeds of the shipment from Bremen by the Louise. This was in accordance with the justice of the case, and the agreement of the parties, as the jury must have found it, on the evidence, and I therefore see no reason for disturbing their verdict.

Motion for a new trial denied>

[D. D. Field, Att’y for the plff. S. Boyd, Att’y for the deft.]


author: Jones C. J. Oaklet J.

text:
    Edward Lander versus Joseph W. Clark.
    Dec. Term, 1828.
    The owner of a ship has, by the general rules of law, a lien on the cargo for hia freight, although the vessel may be hired to another, provided he continues in the actual, or- constructive possession and control of it But if he part with his possession to a charterer, the latter is considered as the owner for the voyage, and the former has no lien for the freight.
    By covenant of charter-party, the owner of the brig Holly, let her to the plaintiff; for a voyage from Boston to the East Coast of South America, and back to Boston. The master of the vessel was to be appointed by the plaintiff; and he stipulated to pay the owner §600 per month for the hire of the vessel, to pay all port charges and pilotage during the voyage, and to “deliver the trig” on her return to Boston, to the owner or his order.
    The vessel proceeded to Rio Grande, and having delivered her cargo there, took on board another, partly the property of the plaintiff and partly on freight for New-York. She likewise received the defendant on board at Rio Grande, as master for the homeward voyage. He was directed to proceed to New-York, and there deliver such part oí the cargo as was taken on freight for that place; and then await the orders of the plaintiff. Among the articles taken on freight, was a quantity of hides, fyc., consigned to one Whitlock of New-York.
    Before the arrival of the vessel at New-York, the charterer became insolvent, and immediately on her arrival, the owner took possession. Whitlock paid the freight of the property consigned to him, to the defendant; and he, with full knowledge of the charter-party, and of the claims of the plaintiff, paid over the money to the owner of the vessel. Held, that the charterer might recover back the freight thus paid over to the owner, in an action of assumpsit against the master, the defendant. Held also, that the deviation of the vessel from the direct route from Rio Grande to Boston, for the purpose of delivering freight at New-York, could not be considered by the owner such a violation' of the charter-party, as would authorize him to treat it as a nullity, resume the possession of his vessel at New-York, and claim a right of lien, for the freight of the goods .found on board.
    This was an action of assumpsit for money had and received by the defendant to the use of the plaintiff. The declaration contained all the usual money counts, together with a count upon an insimul computas set. Plea, the general issue.
    The action was originally brought in the Supreme Court, but was transferred to this, by consent of parties, according to the provisions of the act.
    At the trial, a verdict was rendered for the plaintiff, by consent of the defendant, for the sum of $1,132,67 damages, and six cents costs, subject to the opinion of the court upon a case to be made. The material facts admitted by the parties were these.
    By a covenant of charter-party,- bearing date the third day of June 1826, Samuel Woods of Boston the owner of the brig Holly of that port, chartered his vessel to Edward Lander of Salem, the plaintiff, for a voyage from Boston to the “ East Coast of South “ America, and back to Boston.” By the terms of the charter-party, the owner of the brig was to keep her tight, staunch, and strong, and “pay the charge of victualing and manning” her during the voyage; but the master was to be appointed by Lander, the charterer. It was also stipulated that the latter, his agents or factors, should have the right of putting on board the vessel, both at Boston and Rio Grande, such merchandise as they should think proper, contraband goods excepted.
    Lander on his part, covenanted to pay Woods or his order, the the sum of $600 per month, (and in that proportion for a less time) in full for the freight or hire of the brig, in thirty days after her return to Boston. He also was to pay all port charges and pilotage during the voyage, and to deliver the brig, on her return to Boston to the owner or his order. There were also other conditional covenants, as to the purchase of the vessel, by Lander; but none of the stipulations in the charter-party are deemed material in the cause, except those already stated.
    Shortly after the execution of the charter-party, the brig sailed on her voyage, having on board one Brace as master; appointed to that station by Lander, the charterer. She proceeded directly to Rio Grande on the East Coast of South America, and there delivered her outward cargo, which was the property of Lander. At Rio Grande, a homeward cargo was put on board, partly belonging to Lander and partly on freight.' The vessel cleared for New-York and Boston; but was bound for New-York, at which place or Boston the goods were to be delivered. Brace remained at Rio Grande, and sent in his place as master, Joseph W. Clarke, the defendant in this suit.

    The brig left Rio Grande with orders from Captain Brace, to proceed to New-York, and there, after delivering the freight taken for that place, await the orders of Lander. Among the articles taken on board as freight, was a quantity of hides, hair, &c., shipped by one Richards at Rio Grande, and consigned to Win. Whitlock, Jun. of New-York. The freight of these articles, amounted to $1014,34. .
    Before the arrival of the vessel at New-York, the plaintiff became insolvent: and the owner of the brig never received any of the money due on the charter-party, nor had he any security therefor, except what he claimed to have from the freight of the hides, &c., shipped to Whitlock.
    Immediately upon the arrival of the brig at New-York, Woods the owner took possession of her. Whitlock, to whom the hides were consigned, paid the freight thereon to Clark, the master of the vessel and defendant in this suit. Clark, with a full knowledge of the charter-party, and of the tights and claims of the plaintiff paid over the said freight to the owner of the brig.
    Under these circumstances, this suit was brought to recover from the defendant, the master, the said sum of $1014,34, together with interest thereon, from the day when he received the same.
    With the case, the counsel for the parties, submitted the following points for the decision of the court.
    I. Whether the owner of the brig, had a lien on the goods shipped on board, for the hire of the vessel, in virtue of the charter-party.
    II. If not, whether in consequence of the brig’s going to New-York, without necessity, to carry freight there, the charter-party ceased to be binding upon the owner of the vessel, so that he had a right to take possession of her at New-York, and by that means acquire a lien, or right to freight on such merchandize, as he found onboard.
    III. Whether the defendant ought to account to the. plaintiff for the freight money received from Whitlock. The counsel for the plaintiff relied upon the case of Pickman v. Woods, recently determined in the Supreme Judicial Court of Massachusetts, [6 Pick

      ering 248.] and the course of reasoning adopted by Chief Justice Parker, in giving the opinion of the court in that case.
    For the defendant it was contended, that as the charter-party had been disregarded by the charterer or his agent, and a new voyage from South America, substituted for that specified in the charter-party, it ceased to be binding on the owner of the vessel. The brig had been sent to New-York instead of Boston; and Woods, the owner, never parted with the possession of his vessel for a voyage to New-York. He had a right, therefore, to consider Captain Clark as his captain, on a voyage not within the agreement, and could demand his freight, independent of the charter-party, for that does not now apply. Under these circumstances, the owner has a claim on the goods for his freight, and the captain ought not to part with the possession until that is paid. [ Burgon v. Sharpe, 2 Camp. 529. Lawes on Char. Par. 64. 74. 80, 203. Smith v. Wilson, 8 East. 437.]

      Mr. R. M. Blatchford, for the plaintiff.

      Mr. Wilkes, for the defendant.
   Jones C. J.

S. Woods of Boston, the owner of the Holly, chartered her to the plaintiff-for a voyage from Boston to South America and back to Boston, at a stipulated compensation or hire per month. The charter-party was an absolute demise of the ship to the plaintiff for the voyage, and transferred the whole ownership of her pro hac vice to the charterer. The brig made her outward voyage and was despatched on a return voyage for New-York or Boston, but took on board a shipment of a stranger on freight consigned to a house in New-York, to which port she proceeded. Lander the charterer, failed in business, and became insolvent before the arrival of the brig at New-York; and on her arrival at that place, Woods the owner, entered upon her and insisted on holding the goods he found on board for the payment of his charter-money; or at least upon his right to the freight of those goods brought in her for the New-York house on freight. This freight was received by the defendant, who was master of the brig and who thereupon delivered the goods; and this suit is brought for the recovery of the money so received.

On these facts two questions are made,—first whether the owner had a ken on the cargo of the chartered vessel, for his charter-money; and 2d, whether the deviation and departure of the ship from the voyage described in the charter-party, dissolved the contract and remitted the' owner to his original rights.

The case is submitted by the parties on written arguments, the one side relying chiefly upon an opinion of a distinguished jurist of our own state and the other upon a judicial decision of the Supreme Court of a sister state. On the first point they concur in opinion; and it is perfectly clear from the terms of the charter-party, that the owner could have no lien on the goods shipped by the charterer, or under his authority on board the Holly for his freight. The entire vessel was let to hire by the owner to the charterer for the voyage, at a monthly rate of compensation and the distinction which runs through all the cases is, that where the possession and control of the ship are retained by the owner, and lie covenants to carry the goods of the charterer in her for a stipulated freight, the lien for the freight remains. But where he transfers the ship to the charterer for the voyage, and the whole charge and control of her devolve upon the charterer, the owner can have no lien upon the cargo for the freight, but must have recourse to his covenant for hi#remedy in case of default of payment. Possession is essential to the existence of a lien. Here the plaintiff parted with his possession of the vessel, and he consequently, had no lien upon the cargo for his freight, but relied upon his covenant for his security.

The only material question is, whether the deviation or change of voyage dissolved the charter-party, or gave a right to the owner to re-possess himself of his vessel, and whether in either case he was remitted to his right as owner, and became entitled as such to retain the cargo as for freight. On this point the opinions laid before us disagree.

On the part of the plaintiff, it is contended, that the voyage for which the vessel was let to charter, has been changed, and that the owner is thereby discharged from the obligation of the contract; and it is said, that as the freight was payable on the return of the vessel from the voyage, and could by the change of voyage never become due, the owner shall be remitted to his original remedy by lien on the goods for the price of the carriage. The cases cited in support of the proposition do not sustain it.

The case of Cook v. Jennings, [7th D. & E. 381.] was an action on a charter-party for freight covenanted to be paid on the arrival of the vessel at Liverpool, partly in money and the residue by a bill at four months. The ship was prevented from performing the voyage by perils at sea, and the cargo landed at a port of necessity, and accepted by the freighter. Held, that no action would lie on the charter-party, because the delivery of the goods at the port of discharge was a condition precedent which had not been complied with. But in that case, delivery was prevented by causes to which the charterer was not accessary, and not by the act of the charterer. In the same case, Lord Kenyon, C. J., puts the case of a covenant by A to enfeoff B, (a stranger to the deed,) and states the law to be, as it clearly is, that A is not absolved from his covenant, though B will not accept livery of seisin, unless the act be frustrated by the act of the covenantee, thus taking the true distinction, that where the compliance with the condition precedent is prevented iy the party himself who seeks to take advantage of the non-peformance, it shall not avail him ; and upon that distinction this case differs from those cited.

In the case of Philips & Butler v. Rose, [8 J. R. 392.] the action was covenant on articles of agreement, by which the plaintiffs agreed to erect a frame of certain dimensions on a certain lot, for an oil mill, on or before the 15th of June following; and the defendant agreed to make the press and other machinery, and to complete the same, the plaintiffs finding the materials, and boarding the workmen, and when completed, the plaintiffs were to procure and lay in 4000 bushels of flax-seed, which the defendant was to make into oil, &c.

The declaration recited the agreement, and averred performanee, Sic. on the part of the plaintiffs as to erecting the frame of the mill by the 15th of June, and alleged a breach on the part of the defendant. The evidence was, that the frame of the mill had been erected, but not until the 15th of September following the 11thof June; and that the defendant declared afterwards, that it was immaterial whether the frame was erected by the 15th of June or not; and that its not being finished by that time, was no damage to him, as he had not procured the workmen or the money. The evidence was objected to, but admitted. The mill was not erected on the spot, nor of the exact dimensions specified in the agreement, and parol evidence was also admitted, to show that the defendant had consented to the alterations, and assisted in fixing the spot, and directing the workmen in erecting the building, which was objected to as not supporting the declaration, but admitted. The defendant had performed no part of his agreement. A verdict was taken for the plaintiff, subject to the opinion of the court on a case. ■

The court held, that the contract must be proved as it is laid, otherwise the defendant has no notice of what he is called upon to answer, and that evidence that the contract was enlarged by parol agreement, will not support the declaration.

In Keating v. Price [1 J. C. 22.] a special written agreement, whereby the defendant was to deliver to the plaintiff a quantity of staves, at a stipulated price, by a given day, viz : the 1st of May 1796. The defendant proved that the plaintiff in January 1797, admitted that he had agreed to extend the time for the delivery of the staves until the spring of 1797. A verdictwastaken for the plaintiff subject to the opinion of the court, on the question whether the time for performing the contract could be extended by a subsequent agreement between the parties, and whether testimony could be received to prove the admission of the plaintiff of such enlargement of the time. The court declared themselves of opinion that being originally a simple contract, it was competent for the parties by parol agreement to enlarge the time of performing it, and that parol testimony to prove the plaintiff’s declaration to that effect was admissible, an extension of the time being often essential to the performance of executory contracts, and there can be no reason why a subsequent agreement for that purpose should not be valid.

The question, however, did not arise here upon the form of the plaintiff’s pleadings, nor upon the competency of the evidence to support the declaration. The plaintiff proved his case by showing the agreement, and the failure of performance by the stipulated day, and the defendant was put to his excuse of the non-performance for Ms defence; and to sustain that defence, he introduced the testimony to show the agreement to enlarge the time for performance, and the question for the court was the validity of such an agreement, and what its operation was upon the previous written agreement. If the party to the contract, who obtained the extension of time to perform, had brought his suit upon the original agreement, having averred performance by the day, and had on the trial shown a performance after the day, and an agreement of the other party to extend the time, the question would have arisen whether his proof supported his pleading, and then the principle afterwards settled in Philips & Butler v. Rose, would have applied.

In Littler v. Holland, [3 Term R. 590.] the action was covenant on articles of agreement to build two houses on or before 1st April 1788; on the erection of which the defendant was to pay ¿£500. The declaration stated that the houses were built and finished by the time, according to the agreement, but that the defendant had not paid. The defendant pleaded that the houses were not finished at the time limited by the contract; on which issue was taken. On the trial it appeared, that the work was not completed by the 1st April, but that the parties had by a parol agreement, subsequent to the date of the articles, enlarged the time, and that the whole work was completed before the expiration of that enlarged time.

It was contended that this was a substantial compliance with the contract, and a case was cited in which Justice Buller was said to have ruled, that, where there had been an agreement to deliver a quantity of barley by a given day, and it was afterwards agreed, that the defendant should have a month longer to perform the contract; the subsequent agreement was only a continuation of the first contract, a forbearance by the plaintiff for a longer time, and that a performance within the month would have been a substantial performance within the meaning of the first contract; and it was insisted that though that was assumpsit and this covenant, the principle was the same and ought to govern the case. It was admitted, that the subsequent agreement by parol, could not vary the terms of the contract; but it was contended, that it might be offered as evidence, that after the defendant’s consent to enlarge the time, he was estopped from saying that it was not a substantial performance within the terms of the original contract. But Kenyon Chief Justice said the point was so clear, he was not inclined to grant a rule to show cause. The declaration charged that the parties had stipulated by deed to perform a specific thing by a certain day; then if the plaintiff who sues on the contract, be not bound to prove it as laid, the defendant has no notice of that, which he is called upon to answer.

In Roe dem. Gregson v. Harrison,[2d T. R. 425.] a lease contained a proviso that the lessee should not let without leave in writing, on pain of forfeiture; and a parol license to let was held not to discharge the lessee from the restriction of such a proviso. And in Brown v. Goodman, [cited in a note to 3d T. R. 593.] which was debt on an arbitration bond, in which the time was limited for the arbitrator to make his award, the declaration stated, that the time was, by mutual consent of parties, enlarged; and that the arbitrator made his award within the enlarged time; but Lord Kenyon held, that the defendant had bound himself, to abide by an award under a penalty, if made within a given time r but that could never extend the penalty to an award, made after that time under a new agreement.

The principle of this last case was recognized and confirmed by the Supreme Court in the case of Freeman v. Adams,[ 9th John. R. 115.] It was there held, that an action would notinsuch case lie on the bond, but that the remedy of the party is upon the submission implied in the agreement to enlarge the time. And the court advert to the case of Philips v. Rose, [8th John. R. 392.] as an authority to show, that if a contract be subsequently changed, you must declare otherwise than on the contract itself. And they observe, that there is a wide difference between the case of a suit to enforce the bond or contract, in consequence of such agreement, and a plea of a discharge by the obligee, from a strict and literal compliance with the obligation, according to the doctrine in Fleming v. Gilbert. [3 John. R. 528.]

The same rule applies to charter-parties, and the strict compliance with a condition precedent, has, upon the same principle, been dispensed with where the party who objects to the action for want of such compliance, was himself the immediate cause of it. And in the case of Hotham v. The East India Company, [1 T. R. 638.] sanctioned by the court in Smith v. Wilson, the only thing that stood in the way of the plaintiff’s recovering the allowance claimed for short tonnage, according to the terms of the charter-party, after having taken all proper steps on his part to obtain the necessary certificate to entitle him thereto, was the neglect and default of the company’s own agent in refusing to afford him such certificate.

In that case, the court ruled, that assuming the clause relating to the certificate to be a condition precedent, yet the plaintiff’s having taken all proper steps to obtain the certificate, and it being rendered impossible to be performed by the neglect and default of the company’s agents, it was equal to performance. And the court emphatically add, that if it were necessary to cite any case for this, which is evident from common sense, it was so held in Roll’s Abridgement, 445., and many other books.

In the case at bar, the charter was for a voyage from Boston to the east coast of South America, and back to Boston, where the vessel was to be discharged. And the covenant of the charterer is to pay for the use of her at the rate of $600 per month, in thirty days after her return to Boston. She arrived at Rio Grande, a port in the east coast of South America, and was sent from .thence by the agents of the charterer with a cargo to the port of New-York, with direction to the master, after disi barging the cargo taken on freíghfffor that port, to wait the orders of Lander, ’-he charterer, as to the uitenor destination of the brig. Thus the return of the vessel direct to Boston, which the terms of the charter-party are supposed to require, was rendered impracticable by the act of the charterer, whose agent sent her to the port of New-York. He therefore could not make it an objection to an action in this court for freight, that the return of the vessel to Boston was a condition precedent, which had not been performed. For it was an act which was to be done by himself, and his own breach of his implied covenant to return with the vessel direct to Boston, could not be 'set up or insisted upon by him as a defence against the action for the freight. If, then, it be admitted, that the neglect and default of the charterer in not returning with the vessel direct to Boston, was equivalent to performance, within the meaning and spirit of the cases, still the consequence could only be that, eo instanti, Iris wilful departure and deviation from the track of the voyage for which the brig was chartered to him, was consummate^ by conducting her to the port of New-York instead of Boston, he became liable to an action on his covenant for the monthly hire of the vessel, and the remedy of the owner against him was as complete as it would have been in case of her return to Boston.

The rule applied in cases of the capture of neutral vessels, rests on the same principle: for although the voyage is not completed, and consequently the whole freight not earned, yet as the captor has prevented its completion, his seizure shall operate to the same effect as an actual delivery of the goods to the consignee, and subject him to the payment of full freight. [The Copenhagen, 1 Robinson’s Admiralty, R. p. 289.] If, then, the charterer breaks up the voyage, or substitutes a different port of destination from that authorized by the charter-party, whereby he prevents the completion of the voyage, for which freight, or a gross sum as compensation for her use, was to be paid, will not his change of voyage have the same effect as the actual performance of the voyage thus prevented, and the actual return of the vessel to the stipulated port, and'subjecthimto the payment of full freight, or the entire sum contracted to be paid, for the use of the'brig 1 And will not this immediate right to his reserved freight or compensation for the vessel, and his right to her restoration, fully satisfy his just claims under the charter-party 1

But take another view of the case. Was the brig bound by the charter-party to return direct to Boston, or had she not by fair construction a latitude to touch at intermediate ports in the iter of the voyage, so that Boston was constantly kept in view as the ultimate port of destination ? The terms of the contract are, that she is to proceed to the east coast of South America and back to Boston, and on her return to that place to be delivered up*; and the charterer is to pay for the use of the vessel a monthly compensation for each month she should be employed in the service^ and not a gross sum for one entire voyage. There is no express covenant in the charter-party binding the charterer to return with her direct to Boston. And the provision for a monthly freight or compensation for the use of her during the time she should continue in the service, likens it more to a general contract upon time, allowing a latitude and range of employment, than a contract for a specific voyage to a designated port, and then directly back to the port of departure. And the subsequent agreements in the contract for the right of purchase and sale of the vessel at given period^on stipulated terms, strongly favours that construction. For it vested in the charterer a species of equitable ownership, and was calculated to impress on his agent the conviction, that he had a discretionary authority for her employment, and was at liberty so to order her return voyage, and to take such freight for the ports in the immediate route for Boston, as should best sub-serve his interest.

Malyne, in his Lex Mercatoria, states the case of a ship chartered by a merchant, who engaged the master and crew, equipped the vessel at his own cost, and by the charter-party engaged to pay the owner £20 for the use of her per month, until she should return into the Thames. The merchant loaded the ship for the straits, and to sail from port to port to different places; and after the expiration of two years she sailed from Barbary for London with a cargo, and was lost in a storm near Dover. The cargo was saved, but the merchant refused to pay the freight, because the ship had not returned into the Thames. It does not appear whether there was any legal excuse on his part or not; but Malyne pronounces the merchant wrong, because the freight was designated by the month, and the place of ultimate return was only specified in order to ascertain the time when the freight would be payable. So in this case, the freight was designated by the month, and Boston, the place of ultimate destination, is specified to ascertain the time when the freight would be payable.

But suppose the true construction of this charter-party to require that the brig should return direct to Boston. Did her touching at New-York to deliver the goods taken on freight for that port vacate and rescind the contract 1 Suppose the deviation to amount to a change of voyage, and conceding that it was the act of the charterer, could it absolve him from his covenant to pay the stipulated monthly rate of compensation 1 or would not the legal effect and operation of it, on the principles before stated, be to dispense with the return of the vessel to Boston, as a condition precedent to the right of action against him on the covenant for the charter money, and entitle the owner to an immediate action 1 But was the voyage on which the brig sailed anew or different voyage from that described in the charter-party 1 Or was her proceeding to New-York a deviation only from the voyage to Boston 1 The case states that she cleared for New-York and,Boston: part of the goods were deliverable at New-York, and the residue at New-York or Boston, and the instructions of the master were to proceed to New-York, and there deliver the goods shipped for that place, and then wait the further instructions of the charterer.

Her clearance and the instructions both show that she was bound to Boston, after touching at New-York for the delivery of a part or the whole of her cargo, according to the instructions of the charterer. It was not at New-York, but at Boston, that the voyage was to end, and to which she Was to return. The owner, by taking the possession and control of her at New-York, and divesting the charterer of all further power over her, prevented her return to Boston, and the fulfilment of the engagement to deliver her to.him.at that place. The charter-party did not require the brig to return to Boston with a cargo.

The only expressions in it, which intimate any such intention, are in the description of the voyage back to Boston, where she is to be discharged, and in the allowance of thirty days after her return to that port, for payment of the freight. But these provisions aptly apply to the case of her return with a cargo, which she had a right to do, and probably expected to do. But the Covenants, on the part of the charterer, for the payment of the charter-money, and the re-delivery of the vessel to the owner point to the return of the vessel and not to the discharge of the cargo. He stipulated to pay the hire of the vessel in thirty days after her return to Boston, and to deliver her to her owner on her return. She was on her way back to Boston, and but for the intervention of the owner, would, we are to presume have returned to that place. She was intercepted at the intermediate port, where she had touched, and was from that cause unable to complete and end the voyage. The orders to her master were not to terminate the voyage at New-York, but to wait there for the instructions of her charterer for the voyage. To what could these instructions refer 1 Clearly to the discharge of the residue of the cargo, which was shipped for the account of the charterer himself, and was to be delivered at New-York or Boston as he should direct. He might have directed the brig to proceed with that lading to Boston, and, even if his intentions were to direct her discharge at New-York, until his directions were given, her abandonment of the voyage was not complete. It continued a mere deviation from which the vessel might return or not, and as to-which her election was not yet made and could not be known; Nor did it follow, that she would end the voyage at New-York, even if she discharged her whole cargo there. She might, and most probably would, if unmolested, have returned to Boston, either with part of her lading, or in ballast, and in either case she might have satisfied the terms of the. charter-party. The owner had no interest in her returning to Boston with a cargo; for he would have no lien upon such cargo for his freight. He had taken the personal covenant of the charterer for his security, and trusted to his solvency. The only ground he could have to complain, was the deferring the payment by postponing the time of the return, from which the credit of thirty days was to commenee. But as an equivalent for that, the monthly payment of the hire would continue to run, up to the time of the arrival.

In the actual state of things, which was produced partly by the act of the charterer in deviating from the direct voyage to Boston, and partly by the owner, in dispossessing the charterer of the vessel, and taking her into his own charge, it cannot be known with certainty whether the vessel would have proceeded on to Boston, or the voyage have terminated at New-York; and credence must therefore be given to the documentary evidence which shows an intention to proceed to Boston. If so, the vessel did sail on her voyage to Boston, but with the intention first to stop on her way, at New-York, and which intention she carried into effect. Was this, in the legal acceptation of the term, a change of voyage or a deviation from the original voyage ? The criterion established by our courts for distinguishing between a change of voyage, and a deviation, is, whether the termini of the voyage are preserved or not. If the voyage, upon which a ship sails, have the termini of the voyage described in the contract, the indentity of the voyage is preserved; and if she touches or trades at intermediate ports in the course or track of the voyage, she deviates only, but does not desert the voyage. In all the cases the question of deviation or change of voyage turns on that distinction.

In the case of Henshaw v. The Marine Insurance Company, [2 Caines’ R. 274.] the principle was strikingly exemplified. That was the case of an insurance upon the vessel. The voyage described in the contract and for which the insurance was made, was at and from Newry, in Ireland, to New-York. Previous to her sailing, the master, in conjunction with the agent of the assured, entered into a written contract to land some passengers at Halifax in Nova Scotia under a penalty of ¿£500. She cleared for New-York, but sailed on her voyage by way of Halifax. She there landed her passengers and afterwards arrived safely at New York, the port of her ultimate destination. In an action on the policy for a loss, which happened before the vessel came to the dividing point, the court ruled, that the intention to touch at Halifax, did not make it a different voyage. The argument of the defendant was, that a settled plan and intention to alter the voyage destroys the contract; and that a voyage from Newry to Halifax, and then to New-York, coiild never be the same as a voyage from Newry direct to New-York. But the court held that the termini of the voyages being the same, neither the intention to touch at an intermediate port, nor the actual touching there, made them distinct voyages.

The same rule prevails in the English Courts. Thus where the captain, on a voyage from Pión duras to London, took a consignment of goods for Amsterdam, it was held not to change the voyage. And in Kewley v. Ryan, [2 H. Bl. 343.] where the ship was bound from Grenada to Liverpool, but was to touch at Cork, the identity of the voyage was not destroyed by the deviation. And in the Supreme Court of the United States, in the case of the Marine Insurance Company v. Tucker, 3 Cranch’s R. 375. where the voyage as described in the policy, was at and from Kingston in Jamaca to Alexandiia in Virginia, and the vessel took freight for Baltimore as well as Alexandria, intending to touch at Baltimore ñrst, and was captured while in the common track to both places, the court held, that as the final port of destination or terminus ad quern was not changed, the vessel had sailed on the voyage insured.

These cases all arose on policies of insurance, where the underwriter has no covenant of the assured to protect him, and must rely on a strict observance of the contract for his safeguard against abuse. Añd, if so much latitude is allowed to the assured in the construction of their contract with the insurers, the charterer ought not to be held to a stricter rule with the ship owner, to whom he is bound by personal covenant for his fidelity to his engagements, and is liable to damages for every deviation from them.

In 3 Lev. 41. we find the report of the case of Cole v. Mallett. It was arr action of covenant on a charter-party, by -which the master of the ship covenanted to sail with the first fair wind to Barcelona, and that the mariners should attend with a boat to re-lade the ship, and then to return with the first fair wind to London, and unlade and deliver the cargo; and the freighter covenanted to pay freight and demurrage. The master brought his action for the freight and demurrage. The defendant pleaded, as to the freight, that the ship did not return direct to London, but went to Alicant and Tangier, and made divers deviations, and by those delays the goods were spoiled : to which the plaintiff demurred, and judgment for the plaintiff, for that the covenants are mutual and reciprocal, upon which each shall have his action against the other, but shall not plead the breach of one in bar of the other; for perhaps the damages of the one side and of the other are not equal. In that case, the master kept the government and controul of the ship, and covenanted to carry the goods of the merchant: consequently the deviation was his act. And it was surely as much a change of voyage as this. The deviation from the track of the voyage from Barcelona to London, in going to Alicant and Tangier, was quite as material as that to New-York, from the track of the voyage from South America to Boston. Yet the deviation was held not to dissolve the contract.

In this case, the vessel was let to the charterer, who took the. exclusive possession and controul of her, appointed the master, and by his agents conducted the voyage, and received on board the freight for New-York. Then surely the breach by him of his implied covenant to return with the vessel direct to Boston, and there discharge, admitting it in its broadest latitude and fullest force, by taking freight for Ñew-York, and proceeding to that port to deliver it, could not operate to vacate or dissolve the charter, or absolve him from his covenant to pay the freight, nor give the owner of the vessel a right to re-enter, dispossess the master of the vessel, and hold the goods of the general shippers for the payment of the freight secured by the bills of lading to him as owner.

It must often happen, that a freighter who charters a ship for a distant voyage, will meet with unforeseen occurrences, which prevent the strict and literal observance of all the conditions of the charter-party, and impose on him the necessity or expediency of deviation from the voyage prescribed by the contract, as the only means of avoiding a ruinous sacrifice. His deviation, if not fully and entirely justified by the exigency of (he case, will expose him to damages for the breach of his covenant. Exit if he preserves the substantial features of the contract, and adheres, as far as reasonably practicable, to the general course and ultimate termination of the voyage prescribed to him, he cannot be said to forsake or abandon the charter-party.

In the case before us, the brig sailed from South America for Boston, by the usual and accustomed route, and the port of New-York, at which she was to touch, was in the course, and as it, were, the very iter of her voyage. Can she then be said to have forsaken or wholly disregarded the charter-party ? An advantageous and tempting freight offered for a port in the direct course of the voyage, and the immediate vicinity of the port of destination mentioned in the charter-party. The charterer, who by his controul of her, was the absolute owner of the ship for the voyage, and as the reward for the use of her was to pay a gross sum for each month she was employed in his service, agreed to take the freight for the intermediate voyage, but kept his eye steadily upon the port of destination to which he was bound by the charter to proceed. His voyage ivas for Boston, by w'ay of New-York, and the latter port being in the course of the voyage to the former, that voyage was not abandoned or superseded, but was preserved, and intended to be performed; and if the deviation from it, by touching at New-York, was not warranted by the contract, it was a breach of the implied covenant to proceed direct to the contract port of destination, and the charterer would be liable to the owner for all the loss and damage which that deviation might occasion. But that breach of covenant could not dissolve the contract or vacate the charter-party. It wrould be a most alarming principle to establish, that every breach of the covenants of a charter-party by the charterer, should annul the contract, and give the owners a right to resume the ownership of the vessel, and dispossess the charterer.

Suppose the brig, in the case of the voyage from Newry to New-York, in the case cited from Caines, or the ship in the Voyage from the West Indies to Alexandria, in the case cited from Cranch, had been under charter for tiróse voyages, and the master appointed by the charterers: could the owners have taken possession the vessels at Halifax, or Nrfolk, turned out the charterer, and his captain, and broken up the residue of the voyage 1 What was to become of the goods shipped in the one case for New-York, or in the other for Alexandria? The charterer was absolute owner for the voyage described in the charter-party, and had a right to contract with general freighters by bill of lading, to convey their goods in his vessel from the port of departure to the port of destination for freight. His charter-party was Ms title, and the shippers were bound to look no further for his right to contract with them. Could the contract be defeated by his subsequent deviation from the track of the voyage, to deliver goods subsequently taken on freight for others 1 Such deviation might give them claims to damages for any loss of insurance or other injury they might sustain by it, and it might also give a cause of action to the owners of the vessel; but it surely could not dissolve the charter-party.

But again. Could the owner, by possessing himself of the vessel against the will of the charterer, as for a breach of his own contract of hire, substitute himself for the charterer in Ms contract with the shippers, and enforce performance of them 1 The claim of the owner was to the gross monthly sum agreed to be paid for the hire of the vessel, and for that his remedy was against the charterer personally, and the charterer could not defeat that remedy by his own act in deserting the voyage prescribed by the contract, and substituting another in its place. What title, then, could the owner make to the freight payable by the sMppers % The contract of the shippers was with the charterer as owner pro hac vice, and they have no privity with the general owner. If he assumes the possession of the ship, as forfeited by the deviation of the charterer, he must surely take it subject to the contracts of the charterer. His claim for his payment must still be against the party with whom he contracted, and the obligation of the shippers to the party who contracted with them.

Suppose the freight had been paid in advance, would they be compelled to pay it over again ? Or if they had legal matter of set-off against the charterer, could their just rights be defeated'? It cannot be contended that the shippers, who are strangers to the charter-party, and never contracted with the owner, can be bound or their goods liable for the whole monthly hire of the ship. And yet that is the amount’ which, by his contract, he was entitled to demand.

But the ship-owner’s right to freight of the shippers’ goods, is placed on the ground of lien. How was that lien acquired 1 He had no possession of the brig at the time the goods were shipped, nor until after her arrival at the port where the goods were deliverable. The freight, which then became payable, was due to the charterer. How could the right to that freight be transferred without his consent to another 1 The ship-owner regained the possession of the vessel by his entry; but it does not follow, that the immediate ownership and right of possession reverted to him, or became revested in him by his re-entry, or that the right to the freight payable by the general shipper to the charterer, or the lien for it upon the goods, was tranferred or accrued by his entry and possession to him.

It has been my endeavour to show, that the personal covenant of the charterer contains the remedy of the ship-owner for the monthly sum or compensation stipulated by the charter-party for the use of the vessel, and that the further remedy he may have acquired for it, is an immediate right of action for the demand. And the views I have taken of the case, have resulted in the opinion, that the ship-owner, whatever his other rights in the premises may be, did not by his entry upon the charterer, and repossessing himself of the vessel, acquire or become entitled to a lien on the goods for freight, and that the plaintiff must have judgment.

Oaklet J.

The first ground on which the plaintiff’s right of recovering is resisted, is, that Woods, as the general owner of the vessel, had a lien for the freight on the goods found on board, when he took possession, notwithstanding the provisions of the charter-party.

It is well settled, that the owner of a ship has, by the general rules of law, a lien on the cargo for his freight, although the vessel may be hired to another, provided he continues in the actual, or constructive possession and control of it, His right of lien depends upon his possession. If that is parted with, the lien is lost. In Clarkson v. Coles, [4 Cowen, R. 470.] the Supreme Court lay down the rale to be, that when the general owner of a vessel parts with his ownership and possession, to a charterer, the latter is considered owner for the voyage, and the former has no lien for the freight. The court in that case, reviewed the principal cases on the subject, and they fully support the doctrine laid down. In Chandler v. Talbot, [18 John. R. 157.] Chief Justice Spencer says, “ the right to retain the cargo for the freight, has grown out “ of the usage of trade, and it does not exist where the parties have regulated the time and manner of paying freight, by “ stipulations in a charter-party; and especially if the cargo is “ deliverable before the arrival of the period of payment.”

These principles, which are well settled, furnish the rule of determining the validity of the first ground of defence set up in this case. It cannot be doubted, that by the terms of the charter-party in question, the entire ownership and possession of the vessel for the voyage, were transferred to the plaintiff. He was to appoint the captain, who of course became his agent; and an express stipulation is inserted, that he should deliver the vessel to the owner on the termination of the voyage. These provisions in the charter-party are altogether inconsistent with the idea, that the owner retained any possession of the vessel, or had any control over her, during the continuance of the voyage. It is also provided, that the freight reserved in the charter-party, shall not be payable until thirty days after the termination of the voyage. There being no stipulation that the cargo should remain on board during that time, it follows, in the language of Chief Justice Spencer, that the cargo “ was deliverable before the arrival of the “ period of payment,” of the freight.

The present case, as far as the first ground of objection to the plaintiff’s recovery is concerned, falls entirely within the principles of Clarkson v. Coles, and Chandler v. Talbot.

The second ground upon which the plaintiff’s right of recovery is resisted, is, that the vessel having touched at New-York, without necessity, on her return voyage, and having thus departed from her direct route, the charter-party was thereby violated by the plaintiff"; and that Woods, the general owner ot the brig, hadaright to consider it as abandoned, and to resume the possession of the vessel; and that having thus regained the possession, his right of lien for freight attached upon the goods found on board.

When the goods shipped at Rio Grande, and consigned to Whitlock, at New-York, were put on board, it is clear that the contract for the payment of the freight was made by the shipper with the plaintiff. The plaintiff being owner of the vessel pro hoc vice, had a right to take the goods on freight; and the shipper having contracted to pay the freight to him, was bound to do so, on the delivery of the goods to the consignee, at New-York; unless he was discharged from that obligation by the alleged violation of the charter-party by the plaintiff. I am at a loss to conceive how any such violation, if it took place, could authorize the shipper or his consignee to refuse to pay the freight, when it had been earned according to the terms of his agreement with the owner of the vessel.

It seems clear, that on the arrival of the vessel at New-York, the obligation to pay the freight to the plaintiff became complete on the part of the shipper, or his consignee: and if so, it is equally certain that he could be under no obligation to pay it to the general owner of the vessel. The freight might have been paid in advance to the plaintiff; or the payment might have been postponed by agreement to a day subsequent to the delivery of the goods; in either of which cases, it could not be pretended that the general owner of the vessel could have retained the goods, though the charter-party may have been abandoned, or annulled with the consent of the plaintiff. The terms of the agreement between the plaintiff and the shipper of the goods, could not have been affected by the interference of any claims, on the part of the general owner. And the trae ground, as it appears to me, on which the decision of the case ought to rest is, that as between the shipper, or his consignee and the plaintiff, the right of the latter to claim the freight, could not be questioned by the former; and that the consignee could not have paid it to Woods, the general owner, except in his own wrong. The payment to the defendant, who was the agent of the plaintiff in taking the goods on board, and in earning the freight, by the completion of the voyage, was equivalent to a payment to the plaintiff; and the money must be considered as paid for the plaintiff’s use, because it was paid in discharge of the contract made with him, by the shipper of the goods.

The case would stand thus, in my judgment, though it were conceded that Woods had strictly a legal right to take possession of the vessel, on her arrival at New-York. But had he such right 1 The position is, that by a departure from the direct route of the voyage' from Rio Grande to Boston, and touching at New-York, although with the intent to terminate the voyage at the latter place, the general owner of the vessel was authorized to dissolve the charter-party, to resume the possession of the vessel, and to demand payment of the freight of any goods he might find on board; not in pursuance of the terms of the charter-party, but as upon a quantum meruit. These are consequences which can scarcely flow from so unimportant a deviation from the direct line of the voyage.

The charter-party clearly continued binding on the plaintiff though the vessel touched at New-York, and would continue to operate until her arrival at Boston, unless the interference of the general owner, and the consequent breaking up of the voyage, discharged him from it. The owner, then, lost no security for his freight, in consequence of the touching of the vessel at New-York. He relied originally on the personal responsibility of the plaintiff and assumed the hazard of his becoming insolvent. He has no ground of complaint, unless it be that the voyage might have been somewhat lengthened, and the period at which the payment of freight, according to the terms of the charter-party, was to become due, might have been postponed for a few days. This consideration is of little importance, when it is recollected, that the freight is charged at a certain sum per month, during the continuance of the voyage: and that the voyage itself was therefore understood by the parties to be one of indefinite length. And indeed, the provision in the charter-party, that the voyage is to terminate at Boston, may justly be considered as inserted, rather for the purpose of fixing a period, from which the time limited for the payment of the freight may begin to run, than to confine the homeward voyage to the most direct route from Rio Grande to that place. If the deviation from the direct route of the homeward voyage can be considered at all as a violation by the plaintiff of the terms of the charter-party, the owner of the vessel may, probably, have his action for the damages, if any, which he may have sustained in consequence of it. But I know of no principle upon which the owner, under such circumstances, is justified in treating the charter-party as a nullity.

The preceding view of this case agrees with that taken by the S. C. of Massachusetts, in the case of Pichnan v. Woods, in which the same questions were involved, arising under the same charter-party. We have been furnished with a manuscript copy of the opinion delivered by C. J. Parker, in giving the judgment of the court in that case. It was an action of replevin for certain property, the proceeds of the cargo, shipped by Lander under the charter-party in question. The cargo was assigned by Lander to Pickman; and on the arrival of the vessel at New-York, Pickman claimed the property under his assignment, which Woods refused to deliver, unless the freight was paid. The same questions existed as in the present case. 1st. Whether Woods had a lien on the goods for the hire of the vessel, by virtue of the charter-party. 2d. If not, whether, in consequence of the vessel’s going to New-York, the charter-party ceased to be binding on Woods, so that he might resume the possession of the vessel, and acquire a right to freight on such goods as he found on board. Both these questions are examined at length by the Chief Justice; and he comes to the conclusion, that Woods, by the fair construction of the charter-party, had transferred the entire possession and control of the vessel to Lander, and could not claim a lien for the freight upon any goods taken on board by him ; and that the vessel’s touching at New-York, under the circumstances, did not authorize Woods to consider the charter-party as dissolved; and judgment was given for Pickman.

This is an adjudication of a court of high authority on the very points involved in the present case, and is entitled to great respect. I am entirely satisfied with the correctness of the de'cision, and with the reasoning on which it is founded.

The defendant, then, in the present case, having received the freight in question from the consignee of the goods, is to be held to have received it for the use of the plaintiff; and having paid it over with full knowledge of the plaintiff’s rights, he is liable to the present action. The plaintiff must have judgment for the amount of the freight, with interest, according to the stipulations of the case.

Judgment for the plaintiff.

fR. M. Blatchford, JtWyfor the plff. H. & E. Wilkes, JlWysfor the deftrj

       The defendant’s counsel had presented to the court a written opinion of the late Chancellor Kent.


author: Per Curiam.

text:
    Asahel P. Brittingham versus William Stevens.
    Dec. Term, 1828.
    A party giving a bill of particulars under a Judge’s order, is not held thereby to furnish evidence against himself; but is merely confined at the trial to the range of proof which he himself has chosen. And where referees allowed the plaintiff to resort to the particulars of the defenant’s set-off to establish a fact, the evidence was held to have been improperly admitted.
    Where referees certify to the court, that they have overlooked a circumstance connected with the accounts submitted, and request that the same may be sent back to them for re-examination, the court will set aside the award and send back the accounts to the same referees.

      Mr. J. Stevens in behalf of the defendant in this cause, moved to set aside a report of referees, to whom the accounts of the parties had been submitted under a rule of court.
    He read an affidavit setting forth, that in the progress of the investigation of the accounts before the referees, the counsel for the plaintiff read in evidence a bill of the particulars of the defendants set-off, which had been served upon the plaintiff’s attorney, pursuant to a rule obtained in the ordinary way, under a Judge’s order, for the purpose of proving the payment of a sum of money at a time. The counsel for the defendant objected to .the reacpng 0f the bill of particulars for the object stated; but it was admitted and received by the referees as evidence.
    A certificate signed by the referees was also read by Mr. Stevens, stating a request on their part that the accounts, might be again sent back to them for examination, upon the ground that “ a cir- “ cumstance connected with the accounts had been overlooked “ by them in mating their report.”
    The counsel for the defendant contended,
    I. That the referees ought not to have admitted the bill of particulars, as evidence against the defendant.
    II. That the mistake of the referees as proved by their certificate is sufficient to send the accounts to new referees on the merits. [He cited 2 Esp. N. P. C. 602. 2 J. R. 62.]

      Mr. T. C. Pinckney for the plaintiff contended,
    I. That a party is bound to confine himself to his bill of particulars. [14. J. R. 329. 15. J. R. 222. 2 Bos. & Pul. 243.]
    The case cited from Espinasse, was an action for the sale of some lottery tickets, and the particulars of the defendant’s set-off were produced as proof of the sale. But here the bill of particulars was offered for the sole purpose of establishing the time at which a certain payment was made. It was not used to prove the account, or support the declaration, or to show admissions in favour of the plaintiff. For the purpose of identifying the »ime of a payment the particulars of set-off were admissible in evidence. [1 Phil. Ev. 153-4., and the cases there cited.]

    II The certificate of the referees ought not to be received by the court: 1. because it is not under oath : 2. because “ the cir- “ cumstance connected with the accounts” which is said to have been overlooked, is not stated in the certificate. And thirdly, because parties are never permitted to introduce the certificates or affidavits of arbitrators, referees, or jurors to show a mistake. [6 Cowens R. 53. 2 John. R. 92. 2 Arch. P. 225., & 292.]
   Per Curiam.

The report of the referees in this case must be set aside, and the accounts referred back to them for re-consideration. The bill of the particulars of the defendant’s set-off, was not proper testimony to prove any fact; and is not to be viewed in the light of an admission. Its sole object js to point out and specify the party’s claims, and to restrict him at the trial to the range oí proof which he has himself chosen, so that the opposite party may be apprized of the charges which may be proved. A party giving a bill of particulars under a Judge’s order, is never held thereby to furnish evidence against himself; and it is in practice considered as a part of the pleadings.

The second ground assumed by the counsel of the defendant against the report is also well taken. It appears from a certificate furnished by the referees that a circumstance connected with the accounts was overlooked by them on their examination. What that circumstance was, we are not informed; but the court have a right to deem it an important one, since the referees themselves request that the accounts may be sent back to them for re-consideration. The affidavits of jurors cannot be received to show a mistake upon the grounds of public policy; because they may be tampered with. But the rule does not extend to referees. True it is, this certificate is not under oath; but that will not vary the case. If the court be satisfied that a mistake has been made by the referees, and that substantial justice requires it to be rectified, they have the power to set aside an award and direct a re-examination of the accounts. In this case, the referees themselves have declared that the matters laid before them ought to be re-considered ; and we therefore direct the report to be set aside, and that the accounts be again submitted to the same referees for reexamination.

[T. C. Pinckney, Att'y for the plff. T. Stevens, Att'y for the def’t.]