Volume 1 — Johnson's New York Cases

This was an action on an open policy of insurance, dated the 3d of May, 1797, upon “ all kinds of lawful goods and merchandizes,” on board the brig Hannah, from New York to the Havana. The sum of 16,000 dollars was subscribed by the defendant, as President of the United Insurance Company, at a premium of eight per cent.

This was' an action on a policy of insurance, dated the 5th day of November, 1795, effected by the plaint tiffs for M. Myers, of Norfolk, in Virginia, on the cargo of the schooner Paragon, at and from Aux Cayes, or any other port in Hispaniola, to any port in the United States warranted, American property. The plaintiff declared for a total loss, by capture, made by the British ship of war called the Argonaut.

This was an action on the case founded on a special agreement. The plea was the general issue, with a notice from the defendant, that he would insist on some special matters in his defence, which, with reference to the point decided by the court, it will be unnecessary to state.

This was an action of debt on recognizance, by which the defendants bound themselves to the plaintiff in one hundred pounds, conditioned, that a certain Jacob Jones, whom the plaintiff claimed and detained as his slave, and who had sued out his writ of homine replegiando, should “ prove his liberty, in the most proper and expedient way and means, and should, personally, appear in this court, and his suit, in that behalf, prosecute with effect.” The plaintiff, in his…

This was a feigned issue from the court of chancery. One P. S. filed his bill in that court, against Catharine, his wife, to obtain-a divorce for adultery,' pursuant tb the statute of the 30th of March, 1797. The fact being denied by her answer, the Chancellor directed it • to be tried on this issue.

In error on certiorari. It was specially assigned and relied upon, as error in this case, that the declaratión before the justice contained two counts, in which the plaintiff below stated two several causes of action, on different days, and each of them to the value of 10 pounds, and it was . contended that as the sums demanded in the two counts exceeded the1 value of 10 pounds, the justice had no jurisdiction, it being limited in amount to that sum.

Ti-ie plaintiff obtained a verdict some time since, on which judgment was not rendered until this term. The action was on a policy of insurance, upon which the plaintiff was entitled to interest on the amount of the loss sustained, from the time it ought to have been paid: The interest was accordingly included in the sum found by the jury, and calculated by them, agreeably to the practice of the court, down to the term subsequent to the verdict.

<p>The wife of a person attainted, under the act of the 22d October, 1779, is .entitled to dower out of the estate of her husband, which has become forfeited.-</p> <p>In dower : Palmer, the late husband of the demandant, was attainted, in pursuance of the act of the legislature of this state, entitled, “ an act for the forfeiture and sale of the estates of persons, who have adhered to the enemies of this state,” passed the 22d October, 1779, and tiis estate was there- : by forfeited to the people, of this state. The demandant, in this case, claimed to be endowed of the premises in question, Which are a part of the real estate so forfeited.</p>

The plaintiff’s attorney received notice from an attorney . for the. defendant, in July ; and in September following, received the like notice from another attorney ; the copy of the declaration was served on the first attorney, but not on the second, and a default entered for want of a plea, which the second attorney now moved to set aside.

Before the return of the capias issued against the de- ' féndant, as bail, application was made to a judge, after April. term, 1798, for a committitur of the principal, who was confined in prison in Herkiner county, on a charge of felony which was refused. In September following, the principal was convicted and sentenced to the state prison for life. A rule to show cause why an exoneretur should not he entered, was afterwards obtained.

There were eighteen different suits on one policy of in- . surance. In July term last, the plaintiff having refused to enter into the consolidation rule, the court granted imparlances in all the causes but one, and did the same, in October term: and Boyd, for the defendant, now moved for further ' imparlances.

<p>On error córam vobis; amendment of the record allowed by entering a suggestion of the death of one of the defendants, pending the original action.</p>

A motion was made for judgment, as in case of nonsuit, for not proceeding to trial, on the usual affidavit; but no copy had been served on the opposite party.

<p>Practice on attachment against a sheriff.</p>

A motion was made to amend the fieri facias in this cause, after it had been returned satisfied, by correcting two mistakes which appeared in the writ. Sir T. Jones, 41, was cited.

<p>Taxation of costs.</p>

<p>Costs in suits by or against attorneys.</p>

<p>This was an action of ejectment, brought to recover a lot of land and a storehouse, situate in the town of Kinder-hook, in the county of Columbia. The cause was tried before Mr. Justice Lewis, at the circuit in that county, when a verdict was found for the plaintiff. From the report of the judge, which contained all the evidence in the cause, the following may be stated, as the most material facts in the case.</p> <p>It appeared, that Lowrens Van Alen, under whom the lessor claimed,, had been in possession of the premises in question for thirty years, and upwards, previous to his death; that a daughter of Van Alen had married one John C. Holland; that Van Alen frequently declared that he intended to leave the premises to his daughter, after his [*34] ' death ; that Holland often applied to him for a deed *of the premises, which was refused, probably on account of Holland’s being addicted to the intemperate use of liquor, and he did not choose to put the property in the hands of Holland. At length, however he said to Holland, “ well, you may take the kraal, (meaning the premises,) and I will deduct 602. from your wife’s portion,” but no deed or writing for the premises was executed to Holland or his wife. This offer by Van Alen, was made before the store on the premises was built. Shortly thereafter, in the year 1785, while Van Alen was still in possession of the premises, having a crop growing thereon, Holland made a lease of the premises to one M’Mechan, for nine years, in consideration of which, M’Mechan, among other things, covenanted to erect a storehouse on the premises, which he accordingly did. Van Alen was, at first, dissatisfied, when he heard that Holland had made the lease; but he afterwards declared himself satisfied, saying it would benefit Holland’s children.</p> <p>A witness on the part of the plaintiff proved, that before the date of the above leash, M’Mechan informed him, that he was going to take a lease of the premises,from Holland, and erect a storehouse upon them ; upon which the witness ob-. served, that the land did not belong to Holland, but to the old gentleman, (meaning Van Alen) who, he did not believe, would give a deed for it, and McMechan replied, that it was all in the same family, and that Holland must make good his damages, if he should sustain any.</p> <p>After the first lease expired, to wit, on the 25th August, 1794, Holland made a second lease of the premises to M’Mechan, for a farther term, to continue until the 1st June, 1796, reserving an annual rent of 302. When Van Alen heard of the second lease, he was much dissatisfied, particularly when he found that the rent would be at the disposal of Holland, and would not be secured to his children, and frequently talked of taking the property into his own hands. He made his will on the 19th June, 1790, and thereby devised the premises to [*35) ■ his widow, the lessor *of the plaintiff, during her widowhood, with remainder to his two sons, in trust for his daughter, the- wife of Holland,, and her heirs, and died' in May, 1795.</p> <p>It also appeared, that Holland, on the 1st October, 1790, had made another lease of part of the premises to one Ely, for 999 years, reserving an annual rent of 8s., that on the 1st November, 1793, Ely made a sub-lease of the hay-scales, parcel of the premises, to Ludlow & Spencer; that on the 13th September, 1794, M’Mechan assigned the second lease made to him to- P. Yan Schaick, to secure the repayment of a sum of money, advanced by him- for the use of Holland ; that on the 5th October, 1794, Holland gave a written permission to the defendant and C. Silvester, to occupy a barn on the premises,, which had been before occupied by M’Me- . chan, until the 1st May, 1795, reserving a rent of 32s. and on the 22d June, 1795, he gave a like permission to the defendant, to occupy a part of the same barn, for the term of four years, reserving an annual rent of 32s. Holland died in January, 1797, and the defendant held the premises under M’Mechan, The demise in the declaration was laid on the 1st June, 1795, and there was no proof of any notice to the defendant to quit.</p> <p>On the trial, a motion for a nonsuit was made on the part of the defendant, on two grounds ; 1st. That there was not sufficient evidence of a possession in Yan Alen for twenty years, to. enable the plaintiff to recover on the strength of any title derived from. him.</p> <p>2d. That Holland and the defendant who claimed under him, were tenants from year to year, and as such, entitled to notice to quit; or Holland was a disseisor,- and the devise of Yan Alen to the lessor therefore void, and so the plaintiff could not recover in this- action.</p> <p>This motion was overruled, and the judge submitted it to the jury to determine, whether Holland had any interest in' the premises, instructing them that if he had, it could not exceed a tenancy at will, and if he was a tenant at will, his lease for years to M’Mechan was not a disseisin, *but [*36] at the election of Yan Alen; for that Yan Alen might consider him as his agent or attorney, or might elect to consider it a disseisin or dispossession. He said, that there was no evidence of Van Alen’s having made any election, as to the second lease to M’Mechan, except what might be inferred from his acquiescence under the first, and his taking no measures to defeat the second, and that, as far as the lessor , of the plaintiff was concerned, she had by bringing her ejectment, elected to be dispossessed; that if they should be of opinion that Holland had made the second lease, under which the defendant held, without the approbation or subsequent acquiescence of Van Alen, the plaintiff ought to recover.</p> <p>The jury found a verdict for the plaintiff.</p> <p>A motion for a new trial was made, and argued by Vesburgh, Spencer, and Burr, for the’ plaintiff; and Hopkins,</p>

<p>This was an action for goods' sold and delivered. The defendant pleaded non assumpsit, and payment. Under the second plea, the defendant gave notice, that he would set off a negotiable note; made on the 1st August, 1792, by the plaintiff, to one Sullivan, for 3106 dollars, and endorsed to the defendant, payable in four months after date.' On the trial before Mr. Justice Kent it appeared in evidence, that, the plaintiff being insolvent, on the 16th January, 1793, made an assignment of all debts due to him,- to R Knox and others, as trustees for the benefit of all his creditors; that the plaintiff’s account was presented to the defendant in April, 1797, stated in the names of the assignees, and payment demanded, to which he replied, that there was no objection, to, the account, but he wanted time to pay it, and mentioned also that he had a note to set off against it.</p> <p>In an answer to a bill filed against the defendant in chancery, he stated that hé purchased the note in question, *some time in the year 1793, (the month unknown) [*52] at the rate of twelve shillings in the pound, and for the purpose of setting it off against the present1 demand. The defendant, however, denied in his answer, that he had any actual notice of the assignment made by the plaintiff to the trustees above mentioned at or before the time of making the purchase. ■ '</p> <p>■ Under the circumstances of the case, the judge at the trial, was of opinion, that the set-off oughfmiot to be admitted, and it was accordingly disallowed.</p> <p>The defendant applied for a new trial on the ground of the misdirection of the judge on this point.</p>

This was an action of covenant. The plaintiff declared, that by a certain deed, bearing date the 15 th of June, 1797, it was recited, that one John Baker, on the 17th October, 1795, made a promissory note, for the sum of 833 dollars, 33 cents, payable the 1st April, 179?, to William Hooker, or order; that the defendant was possessed of the said note, and had sold the same to the plaintiff, to be collected by him, “ at his own risk, and costs, as it respected the ability of…

.The defendant, on. the 3d of January, 1792, gave th,e plaintiff a promissory note for 9209 dollars and'44 cents, payable in 90 days. The plaintiff endorsed the note, and, it was further negotiated. It wás not paid when it became due, arid the defendant was afterwards ' discharged under the irn solvent act. At the time of his discharge, the note belonged ' to one Mercer.

<p>Under the act of the 21st of March, 1783, suspending the statute of limitations during the war, and the act of the 26th of February, 1788, saving the plaintiff’s right of action where the defendant is out of the state ; "in an action on a promissory note, dated the 17th December, 1777, it was held, that the maker, being within the British lines during the war, and departing with the British at the close of the war, was to be deemed as out of the state during that time, and the cause of action being considered as accruing on the 21st of March, 1783, the plaintiff having brought an action within six years after the return of the maker to the state, the latter could not avail himself of the statute of limitations.</p>

This was an action of ejectment for lands in the county of Rensselaer.

This was an action of ejectment, forlahds iriGermantpwn, in the county of Columbia. The cause was tried before Mr.. Chief Justice Yates; at the Columbia circuit, in October, 1795. A special .verdict was found, which contained the following facts: 1.

This was an action of assumpsit, brought against .the defendant, as endorser of a promissory note, dated the 5th September, 1797, made by Miner & Servat to the defendant, and payable to him or order, six months after date, and endorsed by him to the plaintiffs.

In error on certiorari to a justice’s court. In this case several causes were assigned for error, but the following were' principally relied upon, and no other was noticed by the court. 1. That- the plaintiff in error, who was defendant below, pleaded two pleas in the action before the justice, to one of which the plaintiff below did not reply, and no issue was t’aken upon it. 2.

The plaintiff having recovered less than fifty dollars, the defendant now moved to set off the costs against the sum recovered. -Theattorney for the plaintiff objected, because the whole of his costs were due, and the plaintiff had become insolvent.

<p>An executor plaintiff, who was nonsuited for a variance between the declaration and the writing declared upon, was held not liable for the costs.</p>

The plaintiff in this cause had proceeded to outlawry. One of the attorneys of this court gave notice of a retainer to the plaintiff, which notice was signed for, or on behalf of the defendant, and he declared' verbally, that he did not mean to appear as attorney. At the last term', however, he obtained a rule to set aside all the proceedings.

Application was made to take the depositions of certain witnesses, before one of the commissioners for taking affidavits, on the ground that they were so aged and infirm that they could not personally attend court on the trial of the cause. It was objected, that the cause was not at issue; and that ' the practice- was unprecedented.

At the last court of oyer and terminer, in Dutchess county, the defendant was convicted of. perjury. Before judgment he absconded, and afterwards voluntarily surrendered himself, but no judgment was pronounced. The judge before whom the prisoner was tried, reported to this court, that the verdict was given against evidence.

This was an action of debt on a judgment féndered in the state of Georgia. The declaration contained but- one count. The defendant pleaded, 1, Nul tiel record, and 2, Nil.debet, with notice of special matter to be given in evidence.

A judgment by confession was entered against the defendant on a bond, executed by him to Ter Bush, by virtue Of a warrant accompanying the bond, and directed to any attorney to confess judgment thereon. It was moved to set aside the judgment on the ground that the defendant after giving the bond, and before the judgment was entered up, became insolvent, and obtained a discharge under the act for the relief of insolvent debtors, passed the 13th April, 1786.

This was an action of debt on an arbitration bond, and the only question was whether the bond was necessary to be stamped.

<p>Where one of a set of three bills of exchange on London, was protested for non-payment; it was held, that an action might be maintained here against the endorser, on one of the set not protested, with the protest of the other ;</p> <p>That a proceeding against the acceptor under a commission of bankruptcy in London, did not discharge the right of action against the endorser ;</p> <p>That where a bill, remitted to pay an antecedent debt, is returned protested no damages are recoverable.</p>

This was an action on the case, brought to recover from the defendant, the amount of a bill of exchange, of which the plaintiffs (who were merchants residing in London) were the holders, and which was remitted by them to the defendant, who resided in New York, to be collected on their, account.

This was an action of ejectment for the recovery of certain premises situate in the seventh ward of the city of New York. On the trial before Mr. Justice Radclif, at the New York circuit, in March 1799, both parties deduced theii title from Stephen M’Crea, late of the said city deceased ; and it was-proved that he died in possession of the premises sometime before the commencement of the action.

This was an action on a promise of marriage. Plea the general issue. The cause was tried before Mr. Chief Justice Lansing, at the last sittings in Albany.

<p>In an action on an open policy of insurance on goods at and from Baltimore to the Havana, the insured recovered for a total loss ; and it was held, that the plaintiffs were entitled to recover the invoice price of the goods, without any deduction for the drawback allowed on exportation.(a)</p> <p>^a) Minturn cf* Champlin v. Columbian Ins. Co. 10 Johns. 75.</p>

This was an action of trespass quare clausum fregit,- &c. turning the plaintiff out of possession, and reaping and carrying away a crop of wheat, and other injuries. Plea, the general issue. The cause was tried before Mr. Justice Lewis, at the last September circuit, in the county of Ulster.

This was an action of ejectment, brought to recover certain premises in the possession of the defendant, situate in the town of Bethlehem, in the county of Albahy. The cause was tried before Mr. Justice Benson, at the last sittings in Albany.

This was an action of debt on a bond. The defendant pleaded infancy at the time of executing the bond, to which the plaintiff replied, and issue was taken on that fact. The cause was tried before Mr. Justice Lewis, at the last Duchess circuit, when the defendant supported his plea by proving, that at the time of giving the bond, he was no more than 20 years and some months old.

This was an action of slander. The plaintiff in the declaration was stated to be a justice of the peace, and the slanderous words were charged to have been spoken [*130] of him *in relation to his office.

This was an action on a promissory note by the plaintiff, as endorsee, against the defendants who were the endorsers. - On the trial it appeared that the note was protested for non-payment on the 17th June, 1797, on which day it fell due; that afterwards, on the same day, the maker called on the plaintiff and paid him 300 dollars in part satisfaction of the' note.

In error on certiorari to a justice’s court. The principal error assigned was that the suit before the justice was an action in the case for a malicious prosecution

The plaintiffs declared in this action by the name and style of' the “ president, directors- and company of the bank of the United States.” The defendant pleaded in .abatement, that the plaintiffs had exhibited their bill, &c., and had -not set forth any act incorporating the hank, of shown the name of the president, directors and company, &c. The plaintiffs demurred to this plea, and the defendant joined in demurrer.

This cause was at issue in July vacation, 1798, and an inquest by default was regularly taken against the defendant early in July, 1799, on which a rule for judgment had been entered at this term. The defendant obtained a discharge under the act for giving relief in cases of insolvency, on the 9th February last, and being surrendered by his bail, moved to be discharged from custody, and that the proceedings against him subsequent to his discharge might be set aside.

Hopkins moved, on an affidavit, stating that Gephard had been removed by the court of common pleas of the county of Delaware, from the office of an attorney of that court, for a rule, that the judges of that court show cause by the first day of the next term, why a mandamus should not issue commanding them to restore him to his office.

<p>If the defendant put in a frivolous demurrer, he cannot, afterwards, withdraw it, to plead the general issue though he has merits.</p>

<p>Where the plaintiff took an inquest by default, after regular notice of an intended application to move at the next term for a commission, it was set aside.</p>

<p>A service of notice must be on some person in the office or house where the attorney of the opposite party resides ; and it must be shown that everythin has been done to bring it home to the party.</p>

An application was made for a habeas corpus to bring up one Husted, detained in custody by a captain in the army of the United States, who claimed him as a soldier enlisted under the authority of the United States.

Monro, endorsee, of a bill of exchange drawn by M’Kinley & Co., sued out an attachment against them as *absent debtors, under the act “ giving relief against [*138] absent and absconding debtors,” passed the 4th April, 1786, and a vessel belonging to them was seized under the attachment.

Thís was an action of assumpsit, brought by the plaintiff as' endorsee of a promissory note, made by the defendant to one Lloyd, and payable to him or order, dated at Suffield in the state of Connecticut. The plea was the general issue. On the trial, before Mr. Justice Kent, at the sittings in New York, after July term, 1798, the plaintiff proved the hand-writing of the maker and endorser, and there rested his cause.

This was an action on a policy of insurance on goods, “ at and from New York to any port or ports in Jamaica,! and twenty-four hours after the goods, as named in the margin, are landed in Jamaica.” The policy was against the-usual risks, and also against the risk of contraband and illicit trade. The plaintiff declared for a total loss by seizufe for illicit trade.

This was an action of assumpsit for goods sold and delivered. The declaration contained also a count upon an insimul computassent. The defendant pleaded non-assumpsit and payment, with notice of a set-off.

<p>A deposition taken de bene esse in a.cause, after the writ was returned, but before the declaration was filed, and on the same day that an order of a judge had been obtained for that purpose, was allowed to be read, the witness being unexpectedly about to depart from the state, on a distant voyage, under circumstances which did not admit of delay, and notice having been given to the opposite party to attend his examination.</p> <p>The insured may abandon on,receiving information of the capture of the vessel, and though it afterwards appear that the vessel was restored at the time of the abandonment, but unknown to the insured, the abandonment will be valid.</p> <p>And when once rightfully made, it is definitive, though the vessel was after-wards released and arrived at her destined port in safety.(S)</p> <p>(b) See Slocum v. United States Ins. Co. infra, p. 151. Murray v. United States Ins. Co. infra, vol. 2, p. 263. Livingston v. Hastie <j- Patrick, infra, . vol. 3, p.293. But see contra, Church v. Bedient, and Hallettv. Peytbn, 1 Caines’ Gas. in Err. 21,43.</p>

This was an action on a policy of insurance, dated the 26th January, 1799, on a cargo of the schooner Goliah, from New York to New Orleans. ■ The cause was tried before Mr. Justice Kent, at the last circuit in the city of New York, when it appeared in evidence, that the vessel, on the 14th February, 1779, while proceeding on her voyage, was taken by a British privateer and carried into New Providence.

The plaintiff declared in debt oil bond, and the defendant among other things, pleaded two pleas of payment, one before the day, the other, payment at the day.

This was an action of ejectment. The cause was tried before Mr. Justice Letois, at the last Montgomery circuit.

<p>A judgment was obtained by the plaintiff against the defendants, which was docketed, and the roll filed on the 22d March, 1799.</p> <p>The defendant White on the 12th of the same month had become insolvent, and on the 23d he assigned and conveyed all his estate, real and personal, to Waddingtón and others, in trust for the benefit of all his creditors. The conveyance was stated in the case as intended to be bona fide, and was executed at the dwelling-house of White, and a silver cup was delivered by him to the trustees in the fiameof all the property. The trustees did not. remove any of the goods so assigned to them; but advertised them for *sale at [*157] auction on the 30 April following, at the house occupied by White. On the same day, to wit, on the 30th April, a fi.fa. in this cause was delivered to the sheriff, and before the hour of sale was levied on part of the goods. Upon this, the trustees paid to the sheriff a certain sum of money, and the fi. fa. was withdrawn, and they, proceeded to sell, subject to an agreement that the money in the hands of the- sheriff should, be paid to the plaintiff, or returned to the trustees, as the court should direct,</p>

This was an action of ejectment, for a lot of land in the city of New York. The cause was tried before Mr. Justice Kent, at the New York circuit, in March last. The plaintiff proved that his lessor was in possession of the premises for one year and upwards, before the defendant came into possession, and that the defendant claimed to hold under or through the lessor.

The plaintiff declared in trespass quare domum fregit, and for ah assault and battery on his daughter and debauching her, per quod servitium amisit, &c. On'the trial the plaintiff obtained a verdict with ten dollars damages.

This was an action of ejectment. The jury found a special verdict which in substance stated, that S. Ellis died seised of the premises in question; that the lessors are his heirs; -that the said Ellis in the year 1794, made his will and devised the premises to a person under whom the defendant claims; that.he also thereby devised to one Riley, a lot of land, not part of the premises, for life, and bequeathed to him a legacy of 100Z. and devised another part of his estate to…

This was an action brought by the plaintiff as endorsee of a promissory note made by the defendant to one Clark, dated 5th December, 1796, and payable to him or order, in three months.

<p>In error from s court of common pleas, the plaintiff may proceed by a rule on the defendant to join in error or by a scire facias ad audiendum errores•</p>

This was an action of assumpsit, for goods sold and. delivered. The defendant pleaded in abatement that the plaintiff, and G. R. Webster, and G; Webster, were partners in trade at the time of making the supposed contract, and that the promises charged in the declaration, were made by the defendant to the said partners jointly, and not to the plaintiff severally.

This was an action of debt on a-bond, conditioned as follows: “ Whereas the above named James White did on the 19th day of September, in the year of our Lord, 1792, purchase of Michael Gratz, of the city of Philadelphia, a certain tract of-land situated in the county of Otsego, for the sum of 11627 10s. lawful fnouey of the state of New York, arid for securing the payment thereof, mortgage the said premisés to the said Michael Gratz.

<p>This was a special action on the case in which the plaintiff declared as follows : '</p> <p>“1. For'that, whereas, on the 3d of July, in the year of our Lord 1795, at the city of New York, and in the ' fifth *ward of the said city,' and within the’county of [*175] New York, in consideration that W. L. in his lifetime, at the special instance and request of the said defendant had caused to be delivered to the said defendant, divers goods, wares and merchandizes of him the said W. L. to be transported, carried, and conveyed by the said defendant, in a certain ship or vessel, whereof the said defendant was then master and commander, from the port of New York to Bourdeaux, in the- republic of France, and there, to wit, at the port of Bourdeaux. aforesaid, to be sold by the said defendant for the said W. L. (the perils and- dangers of the seas duly excepted,) for a certain price or reward therefor, to be paid by the said W. L. to the said defendant, he the said defendant, then and there undertook and faithfully promised the said W. L. in his lifetime, safely and surely to transport, carry and convey the said goods, wares" and merchandizes, from the said port of New York to Bourdeaux, in the republic of France, and there, to wit, at the port of Bourdeaux. in the republic of France to sell and dispose of the said goods, wares and merchandizes, to and for the use of the said W. L., and although the said defendant afterwards, to wit, on the same day and year aforesaid, at New York, at the city, ward, and county aforesaid, had and received the said goods, wares and merchandizes : and although the said defendant did afterwards, to wit, on the 1st day of October, 1795, arrive with the said goods, wares and merchandizes, on board the said ship, whereof the said defendant was then master, at Bourdeaux, in the republic of France ; yet the said defendant not regarding his said promise and undertaking, did not sell or dispose of the said goods, wares and merchandizes, for the said W". L. in his lifetime though often requested so to do by the said VV. L. in his lifetime and by the plaintiff since his death, afterwards, to wit, on the 1st day of May, 1797, at the city,ward and county aforesaid; but the defendant always refused and still refuses so to do.</p> <p>“ 2. And whereas, the said Tv. L. in his lifetime, to wit,' on the 3d day of July, 1795, at the city, ward and [*176] county ^aforesaid, at the special instance and request of the said defendant, shipped in good order, and well conditioned, in and upon the . good ship called the Iris, whereof the said defendant was then master, then riding at anchor in the harbor of New York, the goods and merchandizes following, to wit, sixty boxes of turpentine soap, of the value of 1000 dollars, current money of New York, from thence to be transported in like good order and condition,-by the said defendant, to the port of Bourdeaux, in the republic of France, (the dangers of the seas only excepted,) he, the said W. L. paying therefor, at the rafe of six pounds sterling, (which is equal to 26 dollars and 66 cents, current money of New York,) by the ton, with primage and average accustomed ; and there to be sold by the said defendant for the said W. L. the said defendant receiving for his trouble the usual commissions in such case ; the said defendant, in consideration of the premises, afterwards, to wit, on the same day and year aforesaid, at the city, ward, and within the county aforesaid, assumed upon himself and to the said W. L. in his lifetime, then and there faithfully promised that he, the said defendant, the said goods and merchandizes last mentioned) from thence, would transport in like good order, and well-conditioned, (the dangers of the seas only excepted,) and on his, the defendant’s arrival at Bourdeaux, in the republic of France, would sell and dispose of the said goods and mei> chandizes last mentioned, and account with the said W. L. for the same ; and although the ship aforesaid, with the goods and merchandizes aforesaid therein loaded, afterwards, to wit, on the first day of October, 1795, at Bourdeaux, in the republic of France, to wit, at the city, Ward, and within the county aforesaid, safely arrived, and although the dangers of the seas did not hinder; and although the said W. L. in his lifetime, and the plaintiff, always since his death hitherto, were ready to pay the said defendant, according to the rate aforesaid, and his said commissions, with primage and average, for the transportation, and selling of the goods and merchandizes. Nevertheless the said defendant contriving and intending the said W. L. in his lifetime, and the plaintiff, after the death of the said W. L. to ^deceive [*177] and defraud, the goods and merchandizes aforesaid did not sell or dispose of, nor did he account to the said W. L. in his lifetime for the same, or to the plaintiff, after the death of the said W.L. although the said defendant was often requested by the said W. L. in his lifetime, and by the plaintiff, since his death, to wit, on the 1st day of May, 1797, but to account for the same the said defendant hath hitherto, altogether refused, and still doth refuse,” &c.</p> <p>The third count varied from the second only in stating that the defendant undertook to invest the proceeds in the article of brandy, and to remit the same to the plaintiff.</p> <p>To these the common money counts were added. Plea the general issue.</p> <p>■ The action was tried before Mr. Justice Hobart, at a circuit court held in the city of New York in December, 1797, On the trial the plaintiff gave in evidence a bill of lading signed by the defendant, in the words following;</p> <p>“•Shipped in good order and well-conditioned, by William Lawler, in and upon the good ship called the Iris, whereof is master, for the present voyage, John Keaquick, now riding at anchor in the harbor of New York, and bound for Bourdeaux, to say, sixty boxes turpentine soap, No. 1, to No. 60, being marked and numbered as in the margin, and are to be delivered-in like good order and well-conditioned at the aforesaid port of Bourdeaux, (the danger of the seas only excepted,) unto the said John Keaquick, or to his assigns, he or they paying freight for the said sixty boxes soap at the rate of six pounds sterling per ton, with primage and average-accustomed. In witness whereof, the master or purser of the ship hath affirmed to three bills of lading, all of this tenor and date, the one of which bids being, accomplished the others to stand void. Dated in New York .the 3d day of July, 1795.</p> <p>“ Signed John Keaquick ” The plaintiff then produced a witness who testified, that the defendant had told him that' he arrived in safety [T78] *with the soap mentioned in the bill of lading at ■Bourdeaux, but could not sell it there, and therefore left it for sale with a Mr. Jones, a merchant at that place.</p> <p>The plaintiff then offered to prove the price of soap of the like quality at the city of New York, at the time of the shipment, as the measure of damages which he was entitled to recover, which evidence was objected to on the part of the defendant, but was admitted by the judge, and the value in the market at New York was accordingly proved.</p> <p>The defendant moved for a nonsuit On the general ground, that the evidence did not support any of the counts contained in the declaration,, which motion was -overruled; and the judge charged the jury that the defendant, having accepted the office of factor generally 'was guilty of a default in not disposing of the goods at Bourdeaux, or returning them to the plaintiff; that he was properly chargeable in this form of action, and that the price of the article at. the port of New York,, was1 the just criterion of damages, - •</p> <p>The jury found accordingly for the plaintiff, with damages equal1 to the value of the article in the market at New York, without any deduction.</p> <p>On a motion for a new trial, the following points' were argued: ■</p> <p>1st. Whether the defendant had incurred any default so as to render him at.all liable to.the plaintiff?■</p> <p>2d. Whether -the value of the gooffs at New York or Bourdeaux, ought to constitute the rulé of damages?/'</p> <p>3d. If the value at Bourdeaux be the proper rule, whether primage, average and freight, ought not tobe deducted?</p>

<p>The court of sessions being a court of inferior jurisdiction, lias no pbwerto .grant a new trial, after- a verdict on the meritsand a mandamus was awarded, to compel: them to enter judgment.</p>

Hopkins, at the last term, obtained a rule on the judges and assistant justices of the court of common pleas of the county of Delaware, to show cause why a mandamus should not issue, commanding them to restore Philip Gephard to the office of an attorney of that court, from which he had been removed by them.

This was an action on a policy of insurance on goods, on board the vessel, called the Hull Packet, on a voyage from Wilmington, in North Carolina, to Falmouth, and at and from thence to a port of discharge in Great Britain. The sum insured was 5500 dollars, and the loss was averred to have happened by the perils of the sea. The cause was tried before Mr. Justice Kent, at the sittings, in August, 1798, in the city of New York.

<p>.This was an action of assumpsit for money had and received by the defendant to the use. of the plaintiff. Plea • non assumpsit.</p> <p>*The cause was tried at the last March circuit in [*206] the city of New York, before Mr. Justice Kent, when a verdict was. taken for the plaintiff, subject to the opinion of the court, on the following case, with liberty for either party to turn the case into a special verdict.</p> <p>Dixon, Williams & Co. merchants, of Exeterj in England, purchased goods of the plaintiff to a considerable amount, with orders to have them shipped from New York to Madeira ; and they appointed one Green as their agent to receive the goods, and see them shipped. Green, in March, 1791, went from New York to Madeira, and soon after his arrival there, disposed of two cargoes, on account of Dixon, Williams & Co., which were shipped by the plaintiff, and delivered to him (Green) as the agent of Dixon, Williams & Co.</p> <p>Dixon, Williams & Co. being largely indebted to Barings, Short & Collyns, bankers in Exeter, on the 4th June, 1791, made an assignment of all their wines, goods, wares and merchandizes in Madeira, and the proceeds thereof to C. Baring, towards payment of the debt due to Barings, Short & Collyns. In consequence of this assignment, C. Baring fitted out a vessel, called the Minerva, and appointed one William Baddon master, with orders to go to Madeira, and receive the wines so assigned, and carry them to Jamaica or to Philadelphia, for the account of C. Baring.</p> <p>Baddon, before he sailed from England, received a power of attorney from Dixon, Williams & Co. to act for them according to circumstances, as he should think fit. Baddon arrived at Madeira, received the wines from Green, and shipped them on board" of the Minerva for Jamaica. Previous to the delivery of the wines to Baddon, it was agreed and stipulated between him and Green, that the wines should not be delivered by Baddon, unless upon condition that the sum of 1500Z. sterling should be paid to the plaintiff out of the first proceeds of the wines, and thereupon, Baddon executed a bond.or instrument in writing, dated the [*207] ,11th July, 1791, by which, after- reciting *.that he . , acted in behalf of Dixon, Williams & Co. of Exeter, being b.y them fully empowered and authorized by letter pf of attorney to do and act as to him might appear necessary' for their- interest, and setting forth the particular inducement to execute the bond, he promised and. covenanted, in behalf of Dixon, Williams & Co. not to deliver thé wines under his care until the payment -of 1500Z. sterling to the plaintiff or his order, was first satisfied or directed out of the -first proceeds of the wines, either at Jamaica or Philadelphia.</p> <p>Raddon proceeded with the wines to Jamaica, where he " delivered them to the defendant, who was also the agent of Dixon, Williams & Co.,- to whom Raddon showed a copy of the instrument or paper he had .executed. Sixty pipes of the wines, were landed at Jamaica, and the residue .sent to the brother of the defendant at-Philadelphia, who, the defendant in a letter to the plaintiff, dated the 22d October, 1791, said, was by. the nature of the bond, to pay the plaintiff out of the first proceeds, if his whole demand was not satisfied in England; and the defendant in his letter, added, “that he had promised Raddon to hold the wines until accounts were received from England ; that Raddon’s conduct in signing the paper was approved, which accounts he had received a few days .since.” The defendant, afterwards, acknowledged the receipt of an order from Raddon, in favor of the plaintiff, but said, that he had orders, from Dixon,- Williams & Co. to hold the wines-subject to the order of Charles Baring, and that he understood - that his brother in Philadelphia had settled the.demands of the plaintiff, and that by the orders'of Baring he had already sent him a great part of the proceeds of the wines, and that he"should pay them to no other person. The brother of the defendant at Philadelphia wrote to the plaintiff on the 21st October, 1792, that he (the. plain tiff-) need not- fear ' eventually getting his 15001 sterling, and that he might depend that he, and his brother (the defendant) would detain so much that the plaintiff should be no loser. . '</p>

This was an action of ejectment for lands lying in the county of Columbia, in which, by consent of parties, a verdict was taken for the plaintiff, subject to the opinion of the court on the whole of the evidence.

Burr moved to amend the jurata and distringas, in several particulars, so as to correspond with the actual proceedings in the cause.

At the last January term, the defendant was exonerated as special bail, on payment of costs, which not having been paid, the plaintiff proceeded.

This was an action of ejectmentfor lands belonging to ‘f The Holland Company,” in the county of Ontario. The proceedings were as for a .vacant possession.. It appeared .that the company had surveyed the lands, and erected buildings on some part of the tract.

This was an action of assault and battery, in which a verdict was found for the plaintiff, at the circuit, for six cents damages and six cents costs. A certificate was given by the judge before whom the cause was tried, to entitle the plaintiff to full costs, but it was not given at the trial.

The plaintiff obtained a judgment against White & Stout, which was docketed, and the roil filed, on the 22d March, 1799. On the 12th of the same month, White became insolvent; on the 23d, he assigned and conveyed in due form of law, and bona fide, all his estate, real and personal, to trustees, for the benefit of all his creditors.

This was an action on a policy of insurance on goods shipped on board the Anne and Mary, at and from New York to Madeira. The plaintiffs declared for a total loss, by the perils of the sea.

In error on certiorari to a justice’s court. The principal error assigned was, that the defendant, who was plaintiff below, sued in the capacity of an executor, and that a justice has no jurisdiction in any case in which an executor is a party.

<p>This was an action of debt on a bond. Plea, the general issue.</p> <p>The cause was tried before Mr. Justice Kent, at the last August sittings in the city of New York.</p> <p>The plaintiff proved the hand-writing of the subscribing witness to the bond, and that both he and the obligor were dead.</p> <p>On this evidence a verdict was taken for the plaintiff, subject to the opinion of the .court, whether it was sufficient to authorize the verdict.</p>

This was an action of ejectment, brought to recover certain lands in a tract called Warrensburgh, in the county of Montgomery, on a’demise from Lord Southampton and his wife, and the several demises, of the other lessors.

<p>In an action on a writ of right, the tenants are entitled to a view of the premises as a matter of right, in all cases, except .those in which jt is restrained by the statute.</p>

This cause had been referred to referees, who; repbrted in favor of the defendant, and delivered their report to the defendant’s attorney, which was not yet filed.

After verdict for the plaintiff, a case was made on which to found a motion for a new trial, but the defendant omitted to obtain a certificate that there was probable cause to stay the proceedings, and the plaintiff entered judgment on the verdict.

Emott, for the defendant, moved to change the venue from the city and county of Albany to the county of Chenango. The motion was founded on an affidavit of the defendant, stating that the action was brought on a special agreement made in the latter county, and that the cahse of action, if any, arose in that County, and not elsewhere, and also stating that eight or ten witnesses, whose testimony would be material on the trial, resided in that county.

The plaintiff was under a previous stipulation to try this .baüse at the last sittings in New York, On the first day of the present term, Riggs, for the defendant, moved for a rule for judgment as in case of nonsuit; having given six days notice of the motion, and no person appearing to oppose it, it was granted of course. ,

On certiorari from a justice’s court. The exception relied upon for the plaintiff in error was, that it did not appear from the justice’s return, that he held his court at the place appointed in the summons.

<p>In-an action before a justice, the plaintiff declared by a different name from the. one mentioned in the summons, but the identity of the person was ascertained ; the defendant did not appear, but suffered judgment by default; it was hey, that he should have appeared and taken the advantage of the variance before the justice,, but could not avail himself of it afterwards.</p>

Troup nioved to set aside a default, entered in this cause for not pleading, on an affidavit by the defendant, that a copy of the bill filed therein, had ndt been served on him, nor had at any time come to his hands.

This was an action on a bond given to the sheriff, pursuant to the act of the 5th April, 1798, for regulating the liberties of jails. The defendant pleaded five pleas. 1. Non est factum. 2. Performance of the' condition. 3. That the escape was by casualty, and there was a return of the prisoner before the action was brought. . . 4. That the penalty of the bond was for more than double the amount for which the prisoner was confined, atid so not agreeable to the act. . 5.

A judgment as in case of nonsuit had been entered in a former cause, for not proceeding to trial. The plaintiff then commenced a second suit, for the same cause of action, without paying the costs of the first. A plea was put' in, and the cause noticed for trial.

Emott moved to amend the declaration after plea pleaded, which. was granted. A question - then, arose Whether the: defendant was entitled both to an imparlance and to costs. The following cases, were cited, 1~ Sir. 950; 1 Dallas, 494.-2 Black. Rep. 785.. -

Eight days notice of tria] was given in this cause, for .the last circuit in New York. . ■ ■ . x . ■ The defendant being more than forty miles from the place of trial, considered the notice given as void, and paid no regard to it. An inquest was taken by default, and the defendant now moved to set aside the verdict.

The writ in this- cause was not returned on the quarto die post, and the demandant obtained a rule, that the sheriff/return the writ sedente curia, or show cause, why an attachment should not issue against him. On the service of this rule, the writ was returned.

<p>Special bail was put in, in this cause, and the plaintiff neglected to enter any exception on the bail-piece,"but brought an action on the bail-bond.</p> <p>A motion was now made to set aside the judgment on the bail-bond, on the ground that the plaintiff, by not excepting to the special bail, was precluded from an action on the bail-bond.</p>

■, This was an action of assumpsit, for work, labor- and services. Held: and after-wards- continued to be held and enjoyed in common among them. After this evidence on the part of the plaintiff,, the defendant’s counsel moved' for a nonsuit, which was overruled by the judge. ■ .

This was an action of debí, for 4000¿. being, the penalty of a certain agreement, made between the plaintiff and defendant, bearing date the 23d May, 1795.

This was an action for money had and received. Pled the general issue. On the trial before Mr. Justice Rad-¡cliff, at the last November circuit in the city of New. York, the plaintiff’s, counsel having opened, the case, and stated the testimony of the witness, Hervey, as hereafter mentioned the defendant’s counsel objected to the admission of the witness on the ground of interest.

This was an action of ejectment, tried before Mr. Justice Benson, at the last July circuit in the county of Westchester. The plaintiff having proved his title, gave evidence to show the defendant in possession of the premises in question, and there rested his cause/ The defendant insisted, that he was not in possession of the premises at the time when the action was commenced ; and called one Vredenbergh as a witness, to prove that he,.

<p>. This was an action of debt against the defendants, suggesting a. devastavit by them, as the administrators of M. Smith, deceased. The declaration stated a. judgment recovered by the plaintiff against the defendants,, as such administrators, by default, upon a scire facias issued upon a former judgment obtained against the intestate,, in his lifetime, that a writ offieri facias had issued on the said judgment against these defendants, directed to the sheriff of New York,'in which county the venue was laid, commanding him to levy the damages recovered of the goods apd chattels of the intestate in the. hands of the defendants to be administered, and that the said writ was returned nulla bona. The declaration also alleged, that divers goods and, chattels, which were of the intestate to the amount of the damages-recovered, had come to the hands of the defendants as administrators as aforesaid, which they had “ sold, eloigned, wasted; converted and disposed of to their own use,” by which an action had accrued to the plaintiff, to demand and have the damages, of the defendants, &c.</p> <p>The. defendants pleaded,</p> <p>1. Plene administravit, except as to the sum of 50 dollars, to which amount they admitted assets.</p> <p>2. That-the defendants had not, sold, eloigned, wasted, converted or disposed of, td their own use, any of the goods and chattels which were of the intestate, &c.</p> <p>The plaintiff replied,- and took issue on both pleas.</p> <p>On the trial, the. plaintiff gave in evidence the judgment ^ recovered against, the 1 defendants on the scire facias, the writ of fieri facias issued thereon, and the sheriff’s return thereto of nulla bona, and there rested.</p> <p>The defendants offered no proof; and a verdict was taken for the plaintiff.</p> <p>*A motion was made for a new trial, on the gene- [*277] ral ground that it was competent for the defendant, in this action, to deny the devastavit, and incumbent on the plaintiff to prove it by other evidence.</p>

This was an action of slander. The declaration' charged the defendant with speaking of the plaintiff and others, the following words: “ John Keating is-as damned arascal as ever lived, and all who joined1 his party and the procession on the 4th July, (meaning .the said John Yan Rensselaer and the party and procession, in which the said John' Keating acted as captain on the said 4th day of July) are a set of blackhearted highwaymen, robbers,, and murderers.” The words were…

This case had been submitted to referees, who reported in favor of the defendant, A motion was now made to set aside the report, on the ground, of mistake of the referees, as to the principal, facts in evidence, and the law arising upon them. The case presented a mass of testimony, which was discussed at much length, but is unnecessary to- be detailed here, in regard to the ground on which the opinion Of the- court was founded. :

This was an action of trespass, brought for the recovery ' of the mesne profits of a lot of land, with a store-house and ■other buildings thereon, situate in the county of Columbia. • The cause was tried before Mr. Justice Lewis, at a circuit held in the county of Columbia, on the 30th October, 1799.

. This was an action of ejectment, brought to recover the possession of a road through a farm, owned by the defendant, in the seventh ward of the city of New York. The cause was tried before Mr. Justice Kent, at a circuit court held in the city of New York, in March, 1799.

The plaintiffs brought an action of debt on a judgment obtained in the superior court of the state of Connecticut. The defendant pleaded nul tiel record, on which issue was joined.

Metcalf moved for a mandamus to the court of common pleas of the county of Montgomery, commanding them to proceed to judgment on a verdict obtained by the plaintiff against the defendant, in June term, 1796, of that court. He founded his motion on a copy of the minutes of that court, certified by its clerk, by which it appeared that the verdict was set aside in the same term, on the merits, and that in February, 1798, a new trial was had, and the- plaintiff was nonsuited,

<p>This Was an actiorqon a policy of insurance on the ship Astrea, from New York-to certain ports in the East Indies, with liberty to touch at several intermediate places. The plaintiffs declared for a total loss by the perils of the sea. Plea the general issue.</p> <p>The cause was tried before Mr. Justice Radcliff, at the last March circuit, in the city of New York. The policy, the plaintiff’s interest, the preliminary proofs, and an abandonment of the ship to the defendant in due season, after notice of the loss, were admitted.</p> <p>It appeared in evidence, that the ship sailed from New York, on the voyage insured, on the 7th February, 1796, and, about the 13th of the same month, was overtaken by a violent storm, in which she became so much injured, that she was obliged to seek the first port, and put into Martinique, where she arrived on the 3d day of March, following. There it became necessary to. overhaul her cargó, of which the greater part, in .value, consisted of claret and porter. The ship was found to be considerably injured, but the cargo remained unhurt. The wine and porter were there sold, because from the heat of the climate, and the necessity of exposing them to the sun, and of rolling them over a hot beach, these articles were in great danger of perishing. As they composed the most valuable part of the cargo, the necessity of selling them, occasioned the loss of the voyage which, for that reason, was given up. The ship was sufficiently repaired to return to New York, and might have been repaired to perform the voyage intended, at an expense of less than half her value.</p> <p>Much' evidence was also given, on both sides, on the question, whether the ship was seaworthy when she sailed on the voyage insured. This evidence is not' detailed here, as the question depended on the weight of evidence merely, without involving any important principle in the discussion,. *and was decided by the jury in favor of [*294] the plaintiffs, and their verdict, in this respect, was considered by the court as justified by the evidence. ,</p> <p>The principal point in controversy was whether, admitting the ship to have been seaworthy, the plaintiffs, under the circumstances. of the case, were entitled to recover for a total or a' partial loss only.</p> <p>The judge, at the trial, was of opinion, that the situation ■of the cargo, which remained entire, could not affect the . policy on the ship, and that the ship being in a condition to be repaired, at an expense less than half her value, and in a capacity to perform her voyage, it was not a case in which the plaintiffs had a right to abandon and claim a total loss, and that they ought to recover for a partial loss only. ■ The jury, nevertheless, found a verdict for the plaintiffs, as for-a total loss.</p>

This was an actibh for money had and received, brought to recover back. the premium, which had been paid by the plaintiff to the defendants, for insuring the brig Norge and lier cargo, from St. Thomas to New York. The cause was tried before Mr. - Justice Radcliff, on the 20th day Of November, 1799, at a ¡circuit court held in the city of New York. - .

This was an action on a policy of insurance, on the ship Grand Turk, from New York to any port or ports in the East Indies, and back to New York. The policy was dated the 5th of May, 1795., The cause was tried before Mr. Justice Radcliff, at the sittings in New York, on the 14th November, 1799, when the jury found a verdict for the plaintiff, subject to the opinion of the court on a c'ase made, With liberty to either party to turn the same into a special verdict.

This was an action of covenant, in which the plaintiff declared; “ for that whereas by a certain article of agreement made at the town of… Held: by his clerical brethren; all the above, and each párt thereof, we do hereby promise to perform, and testify to have agreed to, with the said Rev. Mr. John Frederick Ernst, in the háme of the above said óur.congrégátions, signed with bur hands and sealed with our seals, this eighth day of October, in the year of our Lord, one…

<p>A plea of privilege, by an attorney, in abatement, concluding his plea to the jurisdiction of the court, ought not to be treated as a nullity, but must be demurred .to. ' . ^</p> <p>Such a plea does not require an affidavit, and it may be put in after special bail has been entered. .</p> <p>The defendant, being an attorney of this court, was' sued and arrested as a common person.</p> <p>He appeared and entered- special bail, and'pleaded his privilege in abatement, and concluded his plea to the jurisdiction of the court, and not in abatement of the bill: The plea was not verified' by affidavit.'</p> <p>The plaintiff entered- an interlocutory judgment, regarding the plea as a nullity.</p> <p>It was now moved to set aside the judgment as irregular.</p>

This was an action by the plaintiff, as the endorsee .of a promissory note, against the defendant as the endorser. A verdict having been obtained by the plaintiff, a motion was made in arrest of judgment, on the grounds, that it was stated in the declaration that the notice to the endorser was given on the same day on which the demand was made of the maker, but after such' demand and a default of payment by the maker.

<p>If the bail surrender the principal, within eight days in term, after the return of process against them, it is sufficient; and the exoneretur may be entered afterwards.</p>

This was an action of slander, in which a general ver» diet was found for the plaintiff. The declaration contained several counts, and the plaintiff being sheriff of the county of Rensselaer, the words were alleged in the declaration to be spoken of him in relation to his office of sheriff.

<p>Service of a notice of "a motion, .by leaving it at the lodgings of an attorney is not sufficient. It must be served personally, or be left in his office, or place of business.</p>

The plaintiffs were holders of a promissory note given by the defendant for the purchase money of lands in this state, bought by him from the payee, under a title derived from the state of Connecticut. The note was endorsed to the plaintiffs after it fell due, who brought this action, in which the defendant had confessed judgment.

On the trial of this cause a verdict was taken for the plaintiff, subject to the opinion of the court on certain points which were reserved.(a) No case having been settled, Miinro moved for judgment on the verdict.

In error on certiorari. By the justice’s return, it appeared that the plaintiff in the action before him, who is the defendant in error, declared in assumpsit, with two counts, in each of which he stated that the defendant below was indebted to him in 27 dollars and 50 cents, but concluded the declaration to his damage of 25 dollars only.

The ■ defendant was sued as the special bail,- or manucaplor of I. S. and the. capias against him, on which he was taken, was .returnable on the last day of the.preceding, term, - .

This cause was referred, by consent to referees, and' the rule was special, requiring them to hear the parties, and report within a specified time. The referees heard the parties, and, afterwards, two of them, subsequent to the time limited in the rule, and without notifying the third, convened, and made their report in favor of the defendant. Previous to making the report, the plaintiff also, by writing, revoked the authority of the referees.

<p>WRere on a'writ of right, a special imparlance is granted, to the first day of the next term, the tenant is bound to plead on that day, and is not allowed, un-. til the quarto die post.</p> <p>The demandant is entitled to have a view of the premises, as of course.</p>

This case came up oil a motion for a new trial, after a second trial, on which the jury had given a verdict for the plaintiff as before, upon evidence substantially the same. (See ante, pi 184.) ' On the part of. the plaintiff it was insisted, that this was a second verdict on a question of fact, and ought to conclude.

This was an action on a policy of insurance, dated the 2lst of February, 1798, upon all kinds of lawful goods in the ship Minerva, on a voyage from New York to Guadaloupe, valued at 5500 dollars. The premium was ten per cent, and besides the usual risks enumerated in printed policies, it was declared, by a clause in writing, that the insurance was to be “ against all risks The policy contained no warranty.

This was an action on a policy of insurance “ on the American ship Minerva,” on a voyage, from New York to Guadaloupe.

This was an action on a policy of insurance on goods) on hoard the schooner Daphne, from Philadelphia to Havana. - , ' The facts were these: On the 26th of January, 1799, “ Mr. William Thomas, for account of Philip U. Duguet, a citizen of the United States,” opened the policy in question. The vessel and property were warranted. American, and the defendants subscribed the sum of 2500 dollars.

<p>This was an action on a policy of insurance, upon all kinds of lawful goods, on board the ship ,Hope, from New York to two ports in the island of Cuba. In the declaration, it was averred, that the properly belonged to the plaintiffs and one Daniel Hawley; there were also two counts for money had and received to the use of the plaintiffs, and for money, paid, &c.</p> <p>The cause was tried before Mr. Justice Kent, at the circuit in the city of New York,- the 25th of July, 1799, when a verdict was found for the plaintiffs, subject to the opinion of the court on the following case.</p> <p>[*364] *The policy and loss, as stated in the declaration, were admitted; it was also admitted, that the plaintiffs and Hawley had property on board to the amount insured, and that an abandonment was duly made. At the. time the policy of insurance was effected, Hawley was a native American citizen, and resided at the Havana, in the island of Cuba, in quality of a consuluf the-United States. No information was given to the defendants, that Hawley, or any other person than the plaintiffs, was interested in the cargo. The vessel was described in the. policy, as “ the good American ship called the Hope.” At the foot of the policy was the following written clause : “ Warranted American property, proof whereof, if required, to be made in New York only.” The Hope, while prosecuting her voyage, was taken by a British cruiser, and carried into New Providence, and there libelled in the vice-admiralty court, on the ground, that the ship and cargo belonged to Spain, or to persons being subjects of, or residing within the territories of Spain. The ship and a part of the cargo were released, but the residue, belonging to the plaintiffs and Hawley, was condemned as good and lawful prize to the captors.(b)</p>

<p>Where an instrument executed by the chief justice of the state, appointing trustees pursuant to the act for relief against absent and absconding debtors, for all the creditors of certain persons trading together under the firm of the “ American Iron Company,” and absent debtors, in mentioning the names of the individuals composing the company, stated some of them to be trustees for others, and some as executors, &c. these additions were considered merely as words of description, so as to support the validity of the appointment, and the proceedings under the attachment; more especially after a lapse of time, and the acquiescence of the parties interested.</p> <p>The act relative to absent and absconding debtors, does not authorize proceedings against persons acting as executors, trustees, or in a representative character.</p>

This was an action for money had and received. Plea the general issue. It was tried at the last July circuit, in the city of New York, when a verdict was found for .the plaintiffs, for 1167 dollars, subject to'the opinion of the court on the following case : The ship Josiah' Collins was insured by the plaintiffs, at and from Bangor, in Wales, to New York. .

In November last, the defendant’s attorney gave notice to the plaintiff’s attorney, that special bail was filed in this cause: and the plaintiffs, relying upon the information, and not intending to object to the bail, proceeded to enter up judgment in January term last; but afterwards discovered that special bail was not filed until the 24th of January.

The declaration in this cause was filed on the 28th of January, and a copy thereof, with the notice to plead,'was served, by affixing the same in the clerk’s office: The default was entered on the 19th of February, after the^ expiration of twenty days, no attorney having been employed by the defendant. Á motion was now made to set aside the default, on the ground, that -as no attorney was employed, the copy of the declaration should have been put up in the clerk’s office,…

A motion, was made to change the venue in this cause; which was an action oí assumpsit, for goods sold and deliveréd, on the usual affidavit.

<p>On affidavit of the tenant in ejectment, that one of the lessors of the plaintiff was dead, at the commencement of the suit, the demises from such lessor were ordered to be struck out of the declaration.</p>

This was an action of assumpsit on a promissory, note. The defendant was arrested on the 20th of August, 1799, by virtue of a capias ad respondendum, tested in July term, and returnable in October .term. The note on which the , suit was commenced, did not become diie until the 21st of-August, and Was payable on the 12th. . A verdict was taken for the plaintiff, subject to a case con taining the above facts.

<p>A point reserved by the judge at N. P. is like a special verdict, and the plain- " tiff must prepare the case, and open the argument.</p>

<p>Costs were granted for not proceeding to trial according to notice, though the ' defendant’s objectionto the jury process was the reason why the cause was not brought on, the defect in the process being the consequence of a mistake of the plaintiff’s attorney.</p>

A consolidation rule had1 been entered in this and several other causes ; and. a .judgment having, been entered.in one Of the causes, a question now arose, whether the plaintiff might enter up judgment in the other causes immediately.

The defendant, at the last October term, obtained a rule to stay the proceedings on the bail bond, no person appearing to oppose the motion. At the last January term, application was made to vacate the rule of the preceding term, on the ground of a want of notice; and because one of the plaintiffs was not truly named in the bail-piece, which had been filed in the original cause, and the,bail had not justified.

This was an action on a promissory noté, by the endorsee against the endorsers. The defendants pleaded in abatement a former suit by the same plaintiff against them, on the.‘same note, to which he had pleaded in abatement, that one Francis Child was a partner, and ought to have been joined with them, which suit was pending at the commencement of the present action, and is still pending.

This was an action of ejectment. At the trial of the cause at the last circuit in the city of New York, the following facts were either… Held: in trust. [*401] - *The words used in the release were: “ John S. Hunn hath remised, released, and for ever quit claimed, and by these presents doth remise, release, and for ever quit claim unto the said William Culverhouse, and to his heirs and assigns, all the right, title, interest, property, possession, claim and demand of him…

<p>' This was a feigned issue, directed out of the court of chancery, and tried before Mr. Justice Kent, at the circuit in New York, on the '24th July, 1799. The issue was, “ whether a certain deed alleged by the said Richard Roe, to have been made, executed, and delivered by one Cornelius Cozine, the. elder, deceased, in his lifetime, whereby he did give "and grant, bargain, sell, release, and convey unto his two sons, Cornelius Cozine, the younger, and. Balm Johnson Cozine, and their heirs and assigns, all that certain tract. of land, <fcc. at Bloomingdale, was made, executed, and delivered, or not.”</p> <p>On the trial, the following facts appeared: Cornelius Cozine, the elder was in possession, and reputed to be the owner, of the farm in question. Some years before his death, he removed to the city of New York, where he chiefly resided, until his death, in 1765. When he *removed to the city, his wife and daughter, and his [*403] two sons above named, remained on the farm which he occasionally visited. His wife died during the American war, and his two sons, Cornelius and Balm, after the removal of their father, continued to reside on the farm, and to cultivate it as their own, until his death.</p> <p>One of the witnesses testified, that he had heard Cornelius Cozine, the elder, declare that the farm belonged to his said sons, and that he was sorry that they had not made a better use of it. Cornelius Cozine, the younger, died in 1773, and Balm Johnson Cozine died during the American war, and they both continued in possession .of the farm until their deaths respectively. In 1771, B. J. Cozine built a dwelling house on the farmland about the year 1773, he caused a barn to be built upon it.</p> <p>The counsel for the defendant then offered in evidence, the original record of a deed, purporting to bear date the 23d April, 1759, and to have been duly executed by Cornelius Cozine,, the elder, to his two sons above mentioned, by which, in consideration of one 10007 he conveyed the farm in question to them, as joint tenants in fee simple. The deed appeared to have been recorded in the office of the clerk of the city and county of New York, on the application of Cornelius Cozine, of Bloomingdale, on the 10th December, 1761, in consequence of the following proof and certificate endorsed thereon, to wit:</p> <p>“ City of New York, ss. Thomas Clement of the city of New York, scrivener, malceth oath, that he wrote the within instrument as a clerk, and was present, and saw the within named Cornelius Cozine, sen. sign, seal, and deliver the within instrument as his act and deed, for the uses therein mentioned, and that he saw at the. same time, the within named Nathaniel Holmes and Henry Green sign their names as witnesses thereto, in the presence of the said Cornelius Cozine, and also Of this deponent, and further this deponent saith not.</p> <p> “ Thomas Clement. </p> <p>“ Sworn, 9th December, 1761, before me,;</p> <p>“ William Smith."</p> <p>[*404] *“Be it remembered, that, on the 9th day of December, in the year of our Lord 1761, personally appeared before me, William Smith, one of his majesty’s council for the province of New York, the above named Thomas Clement, of the city of New York, scrivener, and made the affidavit, above mentioned ; and I, having perused the within instrument, and finding therein no erasures or interlineations, do allow the same to be recorded, and to take effect, as the law requires.</p> <p>“ William Smith."</p> <p>Thé original deed was not produced, and the defendant’s counsel said, that they could give no particular account of it; and the judge refused to let the above record be read to the jury, in evidence of the deed alleged to have been made, executed, and delivered by Cornelius Cozine, the elder, to his two sons above named, unless some proof could be given of the loss' of the original deed : and a verdict was thereupon found for the plaintiff.</p> <p>On a case made, containing the above facts, and also on affidavits of the discovery of new and material evidence since the trial, a motion was now made to set aside the verdict, and for a new trial.</p> <p>The affidavits stated, that one Forman, the father of the deponent, had in his possession, before the late war, several papers belonging to Cornelius Cozine, and Balm J. Cozine, and among them a deed, said to be from Cornelius Cozine, the elder, to his two sons, for the farm at Bloomingdale, which were lodged with the said Forman, for safe keeping, and were kept in a wooden box; that a number of the papers were destroyed, by the rats having eaten through the box, and that three or four years ago, the top of the box was off; that having searched the box the day before, and made diligent inquiry in the'family, no papers belonging to the Cozines could be found.</p>

<p>If one of'two partners in trade purchase goods for -both, and one of them dies, an action of indebitatus assumpsit may be brought against the survivor, without taking notice of the partnership or the death of one and the survivorship of the other.</p>

This was an action of trover, for a quantity of indigo.' Plea not guilty. The cause was tried at the last circuit before Mr. Chief Justice Lansing. The plaintiff gave in-evidence a written note, without date, from the defendant to the plaintiff, in the words following: ■ . “ Sir and Friend, “ You may rely on my diligence to make the most of your .indigo, of which you have a cask and six barrels and a half, weighing nett 1373 pounds.

This was an action on a-policy of insurance, made upon the brig called the Leonard, on a voyage from Boston to Surinam. The cause was tried at the last November circuit, in the city of New York, before Mr. Justice Radcliff.

This was an action of debt, on a bond dated 14th January, 1799, conditioned to execute a certain deed therein mentioned. The defendant pleaded a release given to him by the plaintiff, dated the 23d September, 1799, of all suits, debts, bonds, &c. The plaintiff replied, that on the 18th January, 1799, he assigned the bond to Adams & Parish, of which the defendant. had due notice. To this replication there was a general demurrer and joinder.

- The capias in this cause was returnable at the last April term. The declaration was filed de bene esse, on the 6th of May. On the 11th of June the plaintiff received notice of special bail, and on the 13th excepted to the bail. The rule for bringing in the- body of the defendant having expired on the 11th of July, the .plaintiff refused tó accept of additional bail, unless they would justify.

Judgment in this case had been entered by default, for want of a plea, though a plea was sent by the mail, and the attorney for the defendant swore that he believed it was received by the plaintiff’s attorney,

A motion was made, in behalf of the defendant, to stay-' the proceedings on the recognizance of bail, and for leave to enter an exoneretur on the bail-piece. It appeared that the defendant was arrested, in this suit, on the 17th of April; that he fell sick on the 21-st of April, and continued ill for ten days ; and the principal was surrendered on the 26th, by an agent of the defendant, he being unable to attend for that purpose.

The declaration with oyer in this cause, was. served on the defendant’s attorney. The declaration being afterwards discovered to be incorrect, was amended, and served de novo, without a new oyer.' The defendant’s attorney refused to receive the amended declaration, without a new oyer,, and the plaintiff proceeded and entered a default.

The defendant in this cause moved to be discharged from the arrest, on the ground that, being a member of the assembly, he was arrested within fourteen days after leaving the legislature, but he did not state whether he had reached his home or not, at the time of the arrest.

An application was made in behalf of the insolvent, who was in prison, that he might be discharged under the “ act for the relief of debtors, with respect to the imprisonment of their persons. It was objected, 1. That notice had not been served on a particular creditor residing in the state of Massachusetts, nor an affidavit made that he could not be found. 2. That the sum for which the prisoner was charged in execution, was not mentioned in his petition. 3.

The appellants (the complainants in the court below) exhibited their bill in chancery, against the respondents, and sixteen other defendants, therein named, in which [*416] *they set forth, that governor Sir Henry Moore, on the 2d February, 1768, purchased from the native Indians a tract of land, containing 25,000 acres, then in the county of Albany, but now in the county of Montgomery, for the ■use of Peter Lewis, Moses Ibbit, Peter Lewis, jun. Samuel Runyons, Peter Millar,…

The appellants filed their bill of complaint in the-court of chancery; against the respondent, and the other parties, stating, among other things, that on the 25th of March, 1768,.

<p>On the 13th of April, 1795, the respondents, as factors of the appellant, sold to Isaac Lopez, M. Lopez, jun. and Abraham Rivera, merchants, under the firm of Gomez, Lopez & Rivera, about six hundred bales of cotton, at 371 cents per pound, and 12,000 weight of indigo, of the Isle of France, at two dollars per pound, amounting to 122,415 dollars and 36 cents; for which the purchasers gave their promissory notes, payable in one year, with interest after 60 days. A written contract, by direction of the appellant, was entered into between the respondents and the purchasers, and among other conditions of the contract, it was stipulated, that the proceeds of the articles in France or elsewhere, should be first applied towards the payment of the purchase money; and further, that the respondents 11 might have it in their option to receive the whole or a part of the amount of the said notes, at Havre de Grace, or at any other port, the ship carrying the property for the purchasers, might discharge at in Europe.”</p> <p>A few days after, the goods were shipped on board, and the vessel sailed for Havre de Grace, in France, where she arrived about the 1st July, 1795, from thence, by direction of Gomez, who was on board, she sailed to Hamburgh, and there landed the goods, which were afterwards, by order of Gomez, reshipped to London, and there sold.</p> <p>[*437] ' *The appellant made repeated applications to the respondents, or their ngents, to make election to receive the purchase, money out of the proceeds of the articles in Europe, and tó give an authority, by which the appellant might receive the surplus thereof, after the respondents had retained a sufficient sum to indemnify them for all their advances and responsibilities on account of the appellant. The respondents declining to follow this direction and to make the election, the appellant considered them as having thereby substituted themselves in the place of the purchasers, and become liable for the purchase money, and thereupon brought an action at law in the supreme court, and obtained a final judgment against the respondents for the amount.</p> <p>A writ of error was afterwards brought by the respondents to this court, to .reverse that judgment, when it was affirmed.(a)</p> <p>*Before the trial at law, two of the purchasers, (the [*438] other refusing to join,) on the 11th October, 1796, filed a bill in chancery against the appellant, the respondents, [*439] *and Lopez, the other purchaser, praying relief, on' the ground of fraud in. the sale; alleging, that the -appellant had represented the cotton-as of the growth of the Isle of *France, whereas it was in truth of the growth [*440] of Surat; and the indigo as of two descriptions, Flo-tang and Violet Copper, when a small part only was of one .[*441]' of those descriptions, *and the remainder of different kinds, and that the appellant had produced samples agreeing with his representation ; that the articles proved to be of inferior quality to *those for which they were [*442] sold, and brought in London, 20,000 dollars- less than they would have done, had they been of the description and quality represented.</p> <p>[*443] *The appellant, in his answer to this bill, on the 23d February,-1797, fully and positively denied all the allegations of the complainants on which -the charge of fraud *was founded. On the 9th May, following, [*444] the respondents put in their answer to the bill, declaring that they did not know that the appellant had prac[*445] tised any fraud or Misrepresentation in the sale, and on the 20th June following, Lopez, the other purchaser, put in his answer, which agreed in substance-with that of the appellant, and *exculpated him from all [*446] the allegations of fraud or misrepresentation.</p> <p>A -few days after the-affirmance of the judgment in the [*447] 'supreme.court, to wit, on the 20th March, 1798, the respondents filed a. bill in the court of chancery against the appellant, stating the sale of the cotton and indigo, the *suit brought by Gomez &■ Rivera in chan- [*448], eery, and that they had obtained an injunction on the ground of fraud, on the part of the appellant, and that the [*449] suit remained ^undetermined ; and praying that the appellant might be enjoined from suing out execution on the judgment obtained by him against the respondents in the supreme court, *as it would be unjust to [*450] permit him to receive the money, until it was ascertained whether he had been guilty of the fraud alleged by [*451] the purchasers. The bill concluded with, *praying an injunction and relief. An injunction was accordingly issued.</p> <p>On the 7th Jane, 1798, the apppellant put in his answer *to the bill of the respondents, in which he [*452] set forth the bill filed by Gomez & Rivera, and his ■answer to that bill, in which he explicitly denied every allegation of fraud.</p> <p>[*453] *To prevent any risk or inconvenience tothe appellant, the chancellor ordered the respondents, to pay the amount of the judgment into the bank of New York ; and the plaintiff was permitted to draw *out, unconditionally, about 53,000 dollars; the re- [*454] sidue ivas received by him, on giving security to refund, in case it should become necessary, by the decree of the court.</p> <p>[*455] * After publication had passed, the chancellor, on the 1st March, 1799,. directed that an issue should be tried in the supreme court, to determine whether there had been *any fraud in the sale of the cotton and indigo, [*456] and ordered the trial to be before a special jury, at. the next circuit court in the county of Dutchess.</p> <p>[*457] *A previous question having been reserved by the counsel on both sides, to be determined as preliminary to the trial, namely, “ whether the respondents were precluded *by the antecedent circumstance, from [*458] insisting on the alleged fraud as a ground of relief,” the chancellor decided that they were not precluded, and [*459] confirmed the *order for the trial of the issue. From this order, the present appeal was entered to this court.</p> <p>The evidence given in the. court of] chancery on the part •of the respondents, was in substance as follows: [*460] That the appellant in his conversations with Gomez, Lopez, and Rivera represented the cotton as of the growth of the Isle *of France, and the indigo as of [*461 i two qualities, Flotang and Violet copper ; and that he produced samples agreeing with this representation; [*462] that the purchasers wished to delay *the conclusion ' of the bargain for a few days, in order that they might examine the articles, but the appellant objected, saying the delay was unnecessary, as he would warrant *the [*4b3] articles, and if allowed, the drawback would be lost, as the time for exportation with that privilege was nearly expired; that the purchasers were ignorant of the nature [*464] *of the articles, but relying on the promise of the appellant to execute a waranty, they concluded the bargain without further examination, and left the shipment of the *articles to the direction of the appellant; that the ap- [*465] • pellant and a person who was his broker, produced letters from France stating, that cotton like the sample exhibited *was worth there from a dollar to a dollar [*466] and a half, a pound, and indigo five dollars a pound ; • that it was discovered in London,, that the cotton was of the [*467] growth *of Surat, and the indigo of five different kinds, a small quantity only being of the qualities represented ; that in consequence of this discovery. Gomez, who was present, ^abandoned the articles to [*468] the agents of the respondents in London; that the cotton sold for seventeen pence sterling, and theindigo at four shil[*469] lings and six pence, and five Shillings a pound; but had they been of the qualities represented, the former would have sold for three shillings and three pence, [*470] and the latter for eleven shillings or eleven *shillings and six pence sterling, a pound ; that after the omission of the warranty in the contract of sale, application was made to the appellant to have it inserted, which *he [*471] declined, alleging as a reason, the controversy between him and the respondents, but said that it should be done soon; that all the partners were concerned in [*472] and privy to *the purchase; that the market price in New York, at the time,, for Surat cotton was 22 cents a pound, and for copper indigo, 94 cents a pound*</p> <p>*On the part of the appellant, his answer on oath, [*473] denying all the allegations of fraud, and that there were any representations of fraud as stated by the witnesses of the respondents, *was relied on. It [*474] also appeared to be confirmed by the evidence'of Moses Lopez, one of the purchasers, and Abraham Gomez, juh. [*475] *It appeared further, that the first application for the purchase; was made to Gouverneur, one of the respondents, in consequence of an advertisement in the gazette of *the 9th March, 1795, stating, “ 600 [*476] bales of cotton to he sold by the respondents, on favorable terms, which they offered as a good speculation for [*477] France that when the *bargain was concluded, no persons were present, except the purchasers and the appellant, and A. Gomez, jun;, that no means were [*478] used by the appellant to prevent a free *examitiation, of the articles; that Gouverneur, one of the respondents, told Lopez and Rivera, that the cotton was from the Isle of France, of the description of Aumude *cotton, [*479] producing a sample, and asking for it three shillings or three shillings and six pence a pound, with the advantage of the drawback ; that Rivera informed his partner,. [*480] *Gomez, of the result, and(sho wed him the sample; thatGouverneur told them, that there was a quantity of indigo which must go with the cotton, and showed samples, demanding *eighteen shillings a pound ; the indigo [*481] was stated to be of the Isle of France. Gomez said that he understood, that Amoude cotton was the same as [*482] Surat, but that he had *no personal knowledge of the article, and relied on the representation of Gouverneur, one of the, respondents, who assured him, that the indigo would probably sell in France *for three dollars, and [*483] the cotton for one dollar a. pound; that A. Gomez showed a price current from France, which stated the prices [*484] to be as- mentioned by Gouverneur : that *the cotton was deliveredfrom the store of the respondents, where it was weighed and might have been examined.</p> <p>Several witnesses testified, that Amende was the best *Surat cotton, and the difference between it and [*485] that of the Isle of France was too striking to be mistaken ; and that the external appearance of the bales showed [*486] it to be Surat *cotton, and that some of them were opened. There was various other evidence, in cor-' roboratióñ Of what is here stated, which it is unnecessary to detail.</p> <p>*Three questions were raised by the counsel for [*487] the appellant, for the consideration of the court.</p> <p>1. Whether, inasmuch as previous to the trial at law, *between the appellant and respondents, they [*488] had full notice of the pretended fraud, by the bill exhibited by Gomez and Rivera, they were not bound, if they [*489] meant to *avail themselves of that defence, to do it upon that trial, and, consequently, whether they Were not precluded from urging it. to impeach the judgment against them ?</p> <p>*2. If not precluded, whether, from the nature of ■ [*490]' the testimony in the cause, it was proper that there should be an issue to be tried by a jury 1</p> <p>[*491] 3. * Whether this court, being regularly in possession of the cause, with all thé evidence, will not decide the whole controversy between the parties ?</p>