Volume 2 — Hall's New York Superior Court Reports

Assumpsit to recover the amount of a bill of repairs upon the ship Concordia. The declaration contained the usual counts for work, labour, and materials; a count for goods sold and delivered ; the money counts; and a count upon an account stated. Plea, the general issue. The cause was tried before Mr. Justice Oakley.

<p>The plaintiffs loaned to the defendant Searle, $15,000 upon goods on board the brig Ocean, whereof S. was master, and received from the defendants a respondentia bond as security for that loan. The vessel was bound from New-York to Calcutta, and from thence back to New-York, with liberty to touch at Madeira on the outward passage. By the first condition of the bond the vessel was to proceed with all convenient speed on her voyage, which was to terminate -within 18 months ; II. She was to have on board during the whole voyage the stipulated amount of property ; III. The voyage was to be performed without deviation ; and by a further condition the defendants were to pay the g 15,000 on the return of the vessel, or at the expiration of 18 months from the date of the bond, whichsoever should first happen.</p> <p>The time stipulated in the bond being expired and the vessel not having returned, the plaintiffs brought an action of debt on the bond, to which the defendants (with the exception of Searle, who was not arrested,) pleaded that after the brig -sailed on her voyage, and before she arrived at Calcutta, the plaintiffs, in consideration of an additional premium of $300, agreed with the defendants, as sureties for Searle, that the vessel should have liberty to proceed from Madeira to the Canaries, and a port or ports in South America, India or elsewhere, and from thence to a port in the United States. That the vessel proceeded from Madeira on the voyage last mentioned, was then prosecuting it with all reasonable dispatch, and had not returned to the United States at the time the action was commenced.</p> <p>Upon demurrer to these pleas it was held that the new agreement made with the sureties, did not vary or alter the terms of the original contract any further than to preclude the plaintiffs from taking any advantage of a deviation from the voyage prescribed in the condition of the bond. It authorised a change in the course of the voyage hut did not extend the time for its performance, and the plaintiSs had judgment on the demurrer.</p> <p>As the new contract was not under seal, quere, whether the terms of the bond could be varied by the parol agreement 1 And if so, whether the pleas themselves are good ?—</p>

This was was an action of assumpsit tried before Mr, Justice Hoffman, to recover the balance of the proceeds of a certain consignment of Brandy made by the plaintiffs to the defendant. For the facts of the case, the reader is referred to the opinion of the Chief Justice (where they are fully stated) and to the preceding marginal note.

This was an application for a new trial on the part of the defendant. The action was originally brought to recover the amount of a bill, for work done and repairs made upon a certain steam engine and steam boat belonging to the defendant; the declaration containing merely the common counts in assumpsit for work, labour and materials. The cause was tried before the Chief Justice.

<p>This was an action of indebitatus assumpsit, brought to recover from the defendant, (who was a pawn-broker,) the sum of nine hundred and fifty-two dollars and eighteen cents, which had been paid to him by the plaintiffs, in order to redeem certain articles of plate, linen, &c., which had been pledged to the defenc[an£ ag secUHty for loans made by him thereon, but which the plaintiffs insisted belonged to them, and were not the property of the pawner.</p> <p>The declaration contained the common counts for money, and a count for goods sold and delivered. Plea, the general issue.</p> <p>The action was brought in this form in order to try the title to the property, and the defendant gave a receipt, wherein he acknowledged that the sum claimed by the plaintiffs, had been paid to him, by them, as the amount due on the goods pledged, which were surrendered up to the plaintiffs. The receipt further stated, that the defendant insisted that the property redeemed belonged to the person who pledged it, but that the plaintiffs claimed it as their own, and the parties, in order to avoid the necessity of an action of trover, had agreed to take this course without prejudice to the legal rights of either.</p> <p>The cause was tried before the Chief Justice on the second of February, 1829; and the counsel for the plaintiffs, in stating then-case to the jury, observed, that they did not wish to impeach the conduct of the defendant in relation to this transaction in any way, it having been, so far as they knew, frank and fair; but that the claim which they interposed to the goods, was founded upon a legal right, which it was the object of this action to assert and maintain.</p> <p>They then introduced a bill qf sale under seal, bearing date the 13th of November, 1826, executed by Samuel G. Ogden to the plaintiffs, together with an inventory or schedule of goods thereby assigned, which was annexed to the deed. This assignment purported to be for the consideration of the sum of $5000 paid by the plaintiffs to Ogden, and on its face conveyed to them absolutely the goods, chattels, and household furniture mentioned in the schedule. But in connexion with this instrument, the plaintiffs produced a declaration of trust made by them under seal, bearing even date with the bill of sale, and the due execution of both instruments was admitted.</p> <p>The declaration of trust recited, that Samuel Gf. Ogden was indebted to the United States of America for duties on certain goods before that time imported into the city of New-York by him, and for which he had given two bonds for the sum of $1644 each, which he was unable to pay. That Thomas W. Ludlow, of the said city, had agreed to advance and provide the funds and means for taking up and paying those bonds, and had further agreed to advance monies for the contingent and family expenses of the said Ogden from time to time, as might be required and that Ogden had conveyed all his household furniture) together with the furniture of his counting-house, in Wall-street, (as per schedule, &c.,) and a certain indenture of lease for an unexpired term of the house No. 41 Warren-street, in the city of New-York, to the plaintiffs. That although said bill of sale and assignment were in terms absolute and unconditional, yet they were in fact made in trust, to secure and pay to Ludlow, on or before the first day of May, 1827, the amount of the said two Custom-house bonds, which he had agreed to take up; and also such further and other sums as might be paid by him as aforesaid” together with interest on such payments. The plaintiffs in the declaration of trust, then further stipulated with Ludlow that they would hold the said property and premises for the purposes mentioned, and that if the money advanced by him to take up the Custom-house bonds, and for the contingent and family expenses of the said Ogden, together with interest thereon, should not be refunded to him on or before said first day of May, that then the plaintiffs would forthwith sell and dispose of the property assigned, either by public or private sale, as should be deemed best, and out of the proceeds, reimburse Ludlow all such sums as he might advance, together with interest, &c.</p> <p>It was admitted by the defendant, that the goods pledged to him and surrendered up to the plaintiffs under said stipulation, were a part of the articles transferred to the plaintiffs by Ogden and mentioned in the schedule annexed to the bill of sale.</p> <p>It appeared at the trial that Samuel G. Ogden was a merchant, resident in the city of New-York, who had been engaged in extensive transactions of business in France, and that having become embarrassed in his affairs, it became necessary for him to visit * that country, in order to bring his business to a close. To accompijgh this purpose, he obtained a letter of license from most of his creditors, but wishing to make provision for the payment of the bonds mentioned in the bill of sale, and also to furnish funds for the support of his family during his absence, (which, it was supposed, would not be extended beyond the first of May, 1827,) he made application to Ludlow for assistance; and that Ludlow, in order to befriend Ogden, agreed to furnish the means of paying the two bonds mentioned in the bill of sale, together with other funds for the family of Ogden; but his advances were not to exceed the sum of four thousand seven hundred and fifty dollars. For the purpose of making Ludlow secure, the furniture and lease mentioned in the bill of sale and declaration of trust, were transferred to the plaintiffs ; but the expectation then was, that Ludlow would borrow the money upon his own notes, and that Ogden would be able to provide the means of taking them up as they fell due, and of reimbursing Ludlow before the first day of May, 1827, whereby there would be no necessity of enforcing the trust, or of selling the property transferred.</p> <p>Owing to various embarrassments, the absence of Ogden was prolonged in France far beyond the period contemplated, and Ludlow was consequently compelled to pay his own notes when they fell due. Ludlow, on the 15th of January, 1827, had advanced to the plaintiffs as trustees the sum of $474012 : viz., on the 13th of November, 1826, $2350; on the 6lh of January, 1827, $1669 48; and on the 15th of January, $720 64.</p> <p>It appeared that Ogden, previously to his departure for France, had been arrested for a debt due to Brainerd & Kimberly, and that the plaintiffs became his bail. This debt (amounting to $415 18) was paid by the plaintiffs out of the money received of Ludlow, after Ogden’s departure for France. His attorney had stated to him the necessity of providing for this debt before his departure, and he answered, that the plaintiffs would be protected by the assignment.</p> <p>Ogden, at the date of the bill of sale, was indebted at the Custom-house on other bonds besides those mentioned therein; and on one of them, (which was for the sum of $134 13) one of the plaintiffs, (G. L. Lewis,) was surety. This bond, together with another for $1,644, and one for $1,814 93, the plaintiffs paid, when they fell due, out of the money received of Ludlow.</p> <p>This last bond, it appeared by the testimony of Ogden himself, was one of the bonds which the parties intended to describe in the bill of sale, and which was to have been protected by it; but the defendant contended, that the plaintiffs were not justified in paying either this bond, or that for $134 13, or the debt upon which Ogden was arrested; because they were not embraced in the bill of sale and declaration of trust. The plaintiffs also paid to the family of Ogden the sum of $706 during his absence, and no more; but the defendant alleged, that the whole sum received of Ludlow, beyond the amount of the two bonds mentioned in the bill of sale, ought to have gone to Ogden’s family.</p> <p>Under these circumstances, the family of Ogden, during his absence, became distressed for the want of the means of support. They applied to the plaintiffs for money, but received nothing beyond the sum of $706 before mentioned. They were therefore under the necessity of pledging to the defendant various articles of plate, linen, &c., embraced in the bill of sale, in order to raise money for their support, and the defendant advanced upon specific articles at various times, between the 5th of May, 1827, and the 7th of March, 1828, the sum for which this action was brought, and received the goods into his possession.</p> <p>Ogden, before his departure for Europe, had given to one of his sons (S. G. Ogden, Jr.) a full power of attorney to act in his behalf upon all necessary occasions; and for the purpose of procuring money of the defendant, another of Ogden’s sons (Morgan L. Ogden) pledged the property in question with the approbation of S. G. Ogden, Jr., and of his mother, who resided with the family during her husband’s absence.</p> <p>Morgan L. Ogden, it appeared, when he went to the defendant for money, acted openly and without disguise. Upon obtaining the first loan, (which was on the 27th of April, 1827,) he himself carried the articles pledged to the defendant, and the pledges were all made in the day time, but the defendant’s clerk went to the house of Mr. Ogden for many or most of the articles -n 0j ¿/lg evm{ngt The goods pledged were all marked with the initials S. G. O., and Ogden’s name was on the door of his house at full length. The defendant did not however ask Morgan L. Ogden any questions as to his right to pledge the articles, nor did the latter ever communicate to the defendant any thing relative to the mortgage. The defendant’s clerk saw some of the members.of Mr. Ogden’s family when he went for the articles pledged, but no inquiry was ever made after Ogden himself. When the defendant sent for the goods in the evening, he selected that time for his own convenience merely, and the business appeared to have been conducted in the usual manner.</p> <p>The defendant, • it appeared from the testimony, took it for granted that Morgan L. Ogden had a right to pledge the articles upon which the loans were made, and he never made any inquiry as to that right, either at the house of Ogden or elsewhere.</p> <p>When Ogden departed for Europe, the furniture was all left in the hands of his family for their use and convenience in his house in Warren-street, and it remained there until the 26th of April, 1828, (except such articles as were pledged to the defendant,) when the plaintiffs were compelled to sell the same in order to discharge their trust and repay Ludlow. At the time of the execution of the bill of sale, however, there was a symbolical delivery of the furniture to the plaintiffs, in the presence of witnesses, by delivering one article in the name of the whole; but they never took actual possession until the time of the sale.</p> <p>According to the plaintiffs’ statement, the amount advanced by Ludlow under the trust, and to the defendant, including interest, was $6175 29, and the amount received from the sale of the furniture and lease, was $5213 60, leaving a balance of $961 69 due to Ludlow.</p> <p>The defendant contested the right of the plaintiff to receive in any event under the trust, any sums beyond the amount of the two bonds specified in the bill of sale, and the money advanced for family expenses, together with interest thereon, amounting in the whole to the sum of $4400 77, which would leave a balance of only $55 98 due to them.</p> <p>After the evidence was all disclosed at the trial, the parties agreed that a verdict should be taken for the sum of $ 1200 in favour of the plaintiffs, subject to the opinion of the Court upon a case to be made; and that, in case judgment should be given for the plaintiffs, it should be entered up for such a sum as should be due to them, according to principles to be laid down by the Court; not, however, to exceed the said sum of $953 18 with interest thereon. A verdict for the sum of $1800 was accordingly returned by the jury.</p> <p>The above is an abstract of the facts as they appear upon the case. There were some objections made to some evidence introduced by the plaintiffs, especially to a certain correspondence between Ludlow and Ogden, and to a receipt given to the latter by the plaintiffs for money advanced. But as the whole body of the evidence was voluminous, and many of the facts not material to a correct understanding of the principles established by the decision, every thing but the above abstract (which is believed to be substantially correct,) is omitted.</p> <p>The cause was argued by Mr. Ogden Hoffman and Mr. Staples for the plaintiffs, and by Mr. Barnes and Mr. Jlnthm for the defendant.</p>

This cause was transferred from the Supreme Court into this Court by an arrangement between the parties. It was an action upon a policy of insurance on the freight of goods laden on board the brig Champion at and from New-York to Omoa, and from thence back to New-York.

This action was brought to recover the amount of damage sustained by the plaintiffs from the destruction or injury by fire, of certain “ gas meters” and “ fixtures” belonging to them, which had been insured by the defendants in two separate policies.

This was an action upon a promissory note for $856 81, made by the mercantile firm of Goddard & Burnap, of Eatonton, in the State of Georgia, in favor of the defendants, and payable to their order, at the Branch of the Stale-Bank of Georgia, at Eatonton, six months after its date, and indorsed by the defendants. The declaration contained three counts.

This was an action of assumpsit brought against the defendants as owners of the ship De Witt Clinton, to recover the amount of a bill for certain chains furnished for that vessel.—The defendant, Howland, severed from the other defendants, in his defence, appeared by a separate attorney and pleaded the general issue.—Morell was defaulted, but the other defendants appeared by the same attornies and made a joint defence.

<p>In order to maintain an action of assumpsit against two trustees jointly, for money had and received to the usé of the cestuy que trust, the plaintiff must prove a joint promise, either express or implied. As each trustee is, in general, answerable for Ids own acts only, the law will not imply a joint promise on the part of both to pay over tho money in their hands to the cestuy que trust, from the mere fact that each trustee has, for himself, separately admitted that there were funds in his possession equal to the amount of the plaintiff's claim.</p> <p>The plaintiffs in this case, being creditors of C. & D. (who had assigned their property to the defendants by a deed of trust for the benefit of certain persons, among whom were the plaintiffs) filed a bill in equity against the defendants. The defendants answered separately, and each in his answer admitted that ho bad received funds to a considerable amount out of the estate assigned, and that he then held in his hands a sum equal to the plaintiffs’ demand, which he proffered his readiness to distribute according to'the terms of the trust.</p> <p>Upon an action of assumpsit against both trustees for money had and received to the use of the plaintiffs, founded upon these admissions, it was held, that the proof did not support the declaration, and that the plaintiffs could not recover unless they proved a joint promise on the part of both defendants.</p>

<p>The defendant executed the following instrument of guaranty in favor of the plaintiff.</p> <p>New-Yorlc, December 5Ih, 1827.</p> <p>“ Whereas Noah Scovell of the City ofNew-York, has this day passed to John “Wheelwright of the said city, his three promissory notes, of which the folio w- “ ing are correct copies ; (setting forth the same ) “ amounting together to “ $10,590 and 80 cents ; now in pursuance of the understanding and agreement “ between the said John Wheelwright and the said Noah Scovell, I do hereby “ guaranty the just and full payment of the said notes to the said John Wheel- “ wright or his order, and should any default; of payment thereof be made by “ the said Scovell, I bind myself for the full amount of such default.” (Signed) John A. Moore.</p> <p>The plaintiff proved that Scovell on the 25th of November, 1827, came to him for the purpose of purchasing a quantity of barilla, and offered to give the defendant as a surety. That he accepted the terms, sold the barilla to Scovell, and on the 4th of December following delivered a part of it to him. Scovell gave his notes to the plaintiff for the amount of the barilla, and about three hours after they were gvien, the notes and and guaranty wore presented to the defendant, who immediately executed the guaranty and delivered it to the plaintiff.</p> <p>Held, that this was all one original and entire transaction, and that the sale and delivery of the goods to Scovell supported the promise of the defendant as well as the promise of Scovell, and formed a good consideration for both. Held, also, that the declaration (which counted on the promise as a collateral one,) being according to the fads of the case, was correct in its form, and in all respects sufficient.</p>

This was an action on the case for injury sustained by a vessel belonging to the plaintifis, while on a rail-way, or inclined plane belonging to the defendants, for repairs. The declaration contained two counts.

This was an action of assumpsit for money paid by the plaintiffs for the defendant in the purchase of stock for him and by his orders, or to recover the value of the stock which consisted of fifty shares in the Fulton Bank, of the city of New-Tork.

<p>The plaintiffs entered into a covenant with the defendants, whereby they stipulated to build and finish the Masonic Hall in tire city of New-Xork, within a certain period, under a penalty of thirty dollars, as liquidated damages for each and every day the work should remain unfinished after the stipulated time. Held, that by the true construction of the covenant, the building was not to be finished absolutely within any stipulated period ; but if not completed by the time fixed, the plaintiffs were liable, for each day’s delay, to the amount of the liquidated damages.</p> <p>The plaintifis completed the building within the specified time, with the exception of the front doors, and a certain stair-way. These would have been completed also, but for the defendants themselves, who made certain alterations in their plan of the stairs, and delayed the finishing of the doors. In an action upon the covenant for the contract price of the work, it was held, that this proof supported the averment of performance on the part of the plaintifis, and that the defendants could not interpose, as a defence, a delay occasioned by their own acts. As the plaintiffs would, but for the defendants, have completed the building within the specified time, their conduct was tantamount to an averment of performance on their part, and a refusal by the defendants, which are held to be equivalent to an actual performance. :</p>

Demurrer to the first and second counts of the plaintiff’s declaration. The action was for a libel contained in a letter written, addressed, and sent by the plaintiff to the defendant; and the question was, as to the sufficiency of the publication set forth in the declaration.

<p>Assumpsit for goods sold and delivered. The defendants pleaded, 1. The general issue. 2. Payment. 3. That the goods mentioned in the declaration were sold by the plaintiff on an agreement to accept in payment therefor, to the extent of six hundred and thirty-eight dollars, a promissory note for that sum, drawn by S. Penny & Sons, in favour of the defendant, bearing date the 8th day of April, 1828, payable four months after date, endorsed by the defendant without recourse, and the balance in cash. That the defendants had, according to their agreement, tendered the note and the cash, which the plaintiff refused.</p> <p>Upon the second plea the plaintiff joined issue and to the third replied, admitting the tender of the money and note, but waving the facts of the agreement, relative to the terms of the sale as' set out in the plea.</p> <p>The cause was tried before the Chief Justice. At the trial, the plaintiff called one Hervey Brown as a witness, who being sworn on his voir dire, stated, that he was a commission merchant, and that as the plaintiff’s factor he sold the merchandise in question to the defendants. That he had made advances to the plaintiff, but not on the goods in controversy. That the plaintiff was then indebted to him to the extent of $150, and was abundantly able to pay that debt. The witness further stated, that if there was a recovery in this case, he supposed he should be paid out of it, but the plaintiff was under no obligation to do so. The witness had no claim whatsoever on the specific proceeds of suit, nor had he any interest in the result.</p> <p>Upon this statment, the council for the defendants objected to the witness, as being interested and incompetent; but the Chief Justice overruled the objection. Being sworn in chief the witness testified, that there had been a good deal of negotiation between the defendants and himself in the month of April 1828, relative to the purchase of the merchandise in question, (several hundred boxes of soap) before the sale took place ; during which, the quantity, price and time of credit were adjusted and fixed. The credit was to be for six months and when the witness went to the defendants to complete the sale, something was said to him, by the defendants, relative to a note of S. Penny & Sons, which the defendants wished him to take in part payment. To this proposition the witness replied, that he did not know the standing of the makers, and the defendant Baldwin said, that “ the note was good and he would endorse itThe witness being satisfied with this, delivered the soap accordingly, on or about the 30th of April 1828. Afterwards the witness called upon the defendants for a settlement of the matter and a calculation was made as to the amount due for the soap, an allowance being made for the difference between the credit of six months, and the time when the note 'would fall due. As the note did not amount to as much as the bill of the merchanise, there was a balance due to the plaintiff in cash, and for this balance, Baldwin wrote a receipt in his receipt book and handed it to the witness to for his signature. The witness then demanded the note, which was handed to him unendorsed, and this circumstance being mentioned to the defendant Baldwin, he tood back the note and asked how it should be endorsed. The witness replied, that he merely wanted the names of the defendants upon it; whereupon Baldwin endorsed the note in the name of the defendants in these words, “pay without recourse to us,” and handed it back to the witness, who refused to receive it, remarking, that he had not sold the goods for such paper. Baldwin replied, that he had, and that he would give no other. The witness then again refused to receive the note, and told the defendants, that he would allow the matter to rest until the period of credit elapsed. In the mean time, on the first of July, 1828, Penny & Sons failed, but it did not appear that the defendants had ever returned the soap or that they had offered to return it. The note referred to was the same described in the third plea of the defendants.</p> <p>The defendants on their part called two witnesses, from whose testimony> it appeared, that when Brown offered the soap to the • defendants they were willing to purchase it, provided he would receive the paper of Penny & Sons, in payment therefor. That Brown at the time, postponed the giving of a definitive answer for the purpose of ascertaining the credit of the makers of the note; but afterwards called upon the defendants and told them that they could have the soap. It was accordingly delivered, and when Brown called for a settlement, the defendants gave him the note of Penny and sons, endorsed Without recourse. But he refused to receive it endorsed in this form and the defendants declined giving any other. Baldwin stated to Brown, that it could not be, that the defendants were to endorse the note, because that would make the bargain more favourable for the plaintiff than the one proposed by him. The time of credit was to be six months upon the security of the defendants alone ; whereas by the terms now demanded, the plaintiffs would have the security of Penny & Sons together with that of the defendants, and this at a credit of only three months, as the note would be due at the expiration of that time.</p> <p>upon this evidence the Chief Justice charged the Jury, that if they found the agreement between the plaintiff and the defendants was, that the defendants should endorse the note of Penny & Sons' absolutely, then their verdict should be for the plaintiffs. 3. If however there was a mistake between the parties, in the first concoction of the contract, the one expecting to receive the endorsement absolutely and the other to give it without recourse, that then as the defendants, instead of returning the article sold, had used it, they were of course bound to pay for it.</p> <p>3. If the jury found, that it was expressly agreed, that the plaintiffs was to receive the note of Penny & Sons, endorsed without recourse, and take the risk of it, that then their verdict should be for the defendants.</p> <p>The jury returned to the bar with a verdict for the plaintiffs, but upon the suggestion of the counsel for the defendant, and with the assent of the plaintiffs’ counsel, they were directed by the Court to state, upon what ground they founded_their verdict. The jury replied, that they founded their verdict upon the belief, that there had been a mutual misunderstanding between the parties, as to the terms of the bargain at the time of the sale.</p> <p>The verdict was for the fulVamount of the goods at the price stated by the plaintiffs’ witness.</p>

The declaration in this case was upon a promissory note for $404.90, bearing date the 6th of Nov. 1826, drawn by a certain firm bearing the name of Haight & Carpenter, in favour of the defendant, and endorsed by him to the plaintiffs, payable sixty days after date. The common money counts were also added to that upon the note. The defendants pleaded the general issue, and payment, and gave notice of a set-off.

This was an action of debt upon a judgment obtained by the plaintiffs and one Thomas Gould, (since deceased,) against the defendant, in the Supreme Court of this State, at the August Term of that Court, in the year 1817. The defendant Stanton appeared, and pleaded, 1.

Assumpsit brought by the plaintiffs, as the endorsees, against the defendant as endorser of three several promissory notes, drawn by one William S. Rayner. The defendant pleaded, I. The general issue; and II. That the plaintiffs iyere not “ a body politic or corporate, and had not a right, by the laws of the land, to sue as such.” To this last plea the plaintiffs demurred specially, and set forth for cause, that if amounted to the general issue.

Assumpsit upon a guaranty. The declaration contained two special counts upon the instrument, besides the common counts, for goods sold, &c. Pleas, the general issue, and payment. It appeared at the trial, that one Mrs. Phillips applied to the plaintiffs in the month of April, 1828, to purchase a quantity of dry goods upon credit.

This cause came before the Court upon special demurrers to two specialjpleas, interposed by the defendants. Held: the same being unsold.” These allegations were concluded by a verification ; and the plea then proceeded as follows, viz : “ And as to all the said several promises and un- “ dertakings, in the said declaration mentioned, except as to the “ said sum of two hundred dollars, so advanced and paid by the “ said plaintiffs to the said…

<p>This was an action of debt on a judgment. The declaration set forth, that the plaintiff, “ in the term of February,” in the year 1827, “in the Supreme Court of Judicature of the People of the “ State of New-York,” “ then holden at the Capitol, in the City of “ Albany, by the consideration and judgment of said Court, re- “ covered against the defendant six hundred and sixty dollars and “ seventy-seven and a half cents;” “ as by the record and pro- “ ceedings thereof, remaining in the said Supreme Court, more “ fully appears,” &c. . •</p> <p>The defendant pleaded in abatement, to the jurisdiction of this Court, “ that the said City of Albany, in the declaration of the “ said plaintiff mentioned, is in the County of Albany;—the same “ being one of the counties of the State of New-York, within “ which, the said Supreme Court have cognizance of all pleas “ and actions;” “ and that the cause of action in the said de- “ claration mentioned, if any,-accrued to the said plaintiff in the “ said County of Albany, and not in the City and County of New- “ York, or elsewhere out of the said County of Albany.” Wherefore, the defendant prayed judgment, if “ the said Superior Court “ will, or ought, to take cognizance of the plea aforesaid,” &c.</p> <p>To this plea, there was a demurrer, and for special causes, the plaintiff assigned the following: First, that the plea did not truly set forth the style and title of the said Supreme Court. II. That it did not state, that the cause of action accrued to the plaintiff out of the jurisdiction of this Court. III. That it did not state, that the said Supreme Court hath sole or exclusive cognizance of actions arising in the said County of Albany. IV. That the proceedings in this-cause being by plaint, the plea ought to have prayed judgment, if the Court would lake cognizance of the plaint; whereas it hath prayed judgment, if the Court would take cognizance of the plea aforesaid. V. That the plaintiff hath not by affidavit proved the truth of said plea, or shown any probable matter to induce the Court to believe that it is true.</p>

Assumpsit brought by the plaintiffs to recover from the defendants, the sum of $132, being tbe alleged balance of an account due from the latter to the former. The cause was tried before Mr. Justice Hoffman. At the trial it appeared, that, the plaintiffs were of the Bowery Theatre in the City of New-York, and that the defendant Celeste w.as a dancer at that Theatre.

This was a special action on the case, brought to recover damages of the defendant, for not furnishing to the plaintiff certain goods, according to his undertaking on four certain orders drawn on the defendant by one Edmund M. Blunt, and by him accepted in blank. One of the orders was dated in November 1826, the others in January 1827. The first was for sixty dollars; the others were for $100 each, and they were all drawn in the following form, vix “.

<p>P., one of the defendants, agreed with R., another of the defendants, in the month • of July, 1825, to purchase one fourth part of a ship of him, which had performed but one voyage, at one fourth of her original cost, and to come in as a part owner from the beginning. He was accordingly debited by R. with that amount, and credited with one fourth part of the profits of the voyage. Held, that this purchase did not constitute P. such an owner from the beginning, as to make , him liable for bills of the ship, which had accrued before the voyage was performed.</p> <p>Quare—As to- the effect of taking the promissory note of one of several Joint owners, for a debt of the whole?</p> <p>Qumre, also, as to the admissibility of the books of one of the joint owners, in ait action by a third person, for the purpose of showing that another of the joint owners had fulfilled all his stipulations with such owner, and had paid for his proportion of the vessel ?</p>

Debt, to recover $2,515.25, due from the defendant to the plaintiff, on a judgment obtained in the Supreme Court in the year 1816. The defendant pleaded, 1. nul tiel record.

Assumpsit to recover of the defendant an amount due from him, upon a certain subscription for stock in the Morris Canal and Banking Company.

At the trial of this cause, [ante p. 63.] a verdict was taken .for the plaintiffs, subject to the opinion of the court, upon a case to be made, and no right was reserved by either party to turn the case into a bill of exceptions, or a special verdict.

Assumpsit to recover back a sum of money, paid by the plaintiffs to the defendants, under an alleged mistake. The declaration was in the common form, and contained the usual counts for money paid, money had and received, &c. Pleas, the general issue, and payment, with notice of set-off.

Assumpsit to recover of the defendant the sum of 100 dollars. The declaration contained separate counts upon eight notes or memorandums, of the following tenor: “If James Harrison shall “ go on board such vessel as I shall provide, I promise to pay to “ him, security, or bearer, 15 dollars on receipt of the same, being “ delivered on board. New-York, September 9 th, 1828.

<p>The plaintiff, with one M’D., entered into an agreement under seal, with the N. Y. Hydraulic Manufacturing and Bridge Co., (a private association under that name,) to construct two bulk-heads, connected with a Canal, which the Company was about to make. This agreement was executed by the defendant, Campbell, as President of that Company, and by Rhinelander, as Treasurer; and was declared to have been entered into “ agreeably to their articles of associa- “ tion.” In addition to the work which was done, under the contract, the plaintiff by the direction of Campbell and Rhinelander, performed other labor in excavating the Cand, for which he brought an action of assumpsit against all the associates. The Company was formed under certain articles of association, which provided that persons having dealings with the Company, should not have recourse for their debts against the separate property of its members, but should be considered as giving credit to their joint funds solely; and that the trustees or agents of the Company should have no authority to bind it by any contract, unless it contained a restriction to the effect aforesaid.</p> <p>The defendants insisted, that the reference in the agreement to the aritcles of association, was sufficient to charge the plaintiff with notice of their articles, and that he could not, under any circumstances, recover a judgment against the defendants jointly, as they were not partners, and as Campbell and Rhinelander had no power to bind them.</p> <p>Held, that the plaintiff having performed labor for the benefit of the associates* might maintain an action upon a quantum meruit, either against the agents, as having tirade themselves personally liable, or against the individuals composing the association ; and the plaintiff had judgment against all the defendants.</p>

This was a special action upon the case against the defendants, for obtaining goods of the plaintiffs by a fraudulent combination, and under false pretences. The declaration contained two counts.

This was an action of debt, for money had and received, according to the form authorized by the “ act to prevent excessive and deceitful gaming.” [1 R. L. 153. sec. 2.] The defendant pleaded, 1. nil debet: 2. the limitation of three . . . . . months, prescribed by that act.

This cause was formerly before the court, upon a demurrer to the defendants’plea. [vol. 1. p. 155.] Judgment having been given against the defendants, upon that issue, for the want of an averment in their plea, that they had never appeared in the suit, in which this judgment was obtained: the defendants, Barretto and Rowland, now amended their original plea, by adding thereto the words, “nor did they, or either of them, appear to the said process and suit.” In every other…

The declaration in this case, contained a count upon a promissory note for 160 dollars and 75 cents, dated “ New-York, June “ 20th, 1816,” by which the defendant promised to pay that sum to the plaintiff, or the person she might, appoint to receive the same, “ for value received by him, October 29th, 1812, with in- terest from that time.” To this there were added, counts for goods sold and delivered, work and labor, money lent and advanced, had and received, &c. The…

This was an action on the case for a malicious prosecution. The declaration contained two counts.

<p>The plaintiffs, (auctioneers,) sold to the defendants a quahtity of goods, by auction, to be paid for in an approved endorsed noto, at six months. The plaintiffs having delivered the goods, demanded the note, which being refused, they immediately commenced an action for goods sold and delivered. The defendants contended that the action should have been special, for the non-delivery of the notes, and that indebitatus assumpsit would not lie until the credit had expired.</p> <p>Held that the sale and delivery of the goods were conditional, and that the plaintiffs upon the non-compliance with the conditions of sale, by the defendants, might reclaim their goods, or treat the sale as an absolute one, without credit, and bring their action for the price without delay.</p>

<p>Double pleas must be signed by counsel,—and if a default be entered against a defendant, who has served double pleas, without the signature of counsel^ the court will not set it aside, except upon an affidavit of merits.</p>

The plaintiff, in error, brought an action of assumpsit in the court below, against the defendant, in error, and declared for work, labor, and materials. At the trial of the cause, several witnesses were introduced by each party, and the evidence upon the merits was contradictory. The justice, after weighing the testimony, decided in favor of the defendant; and upon taxing the costs, he included therein several items of the plaintiff’s costs, amounting in the whole to $4.14.

Assumpsit to recover of the defendants certain sums of money alleged to have been loaned to them, as partners. Plea, the general issue. At the trial, the plaintiff proved satisfactorily, that he had loaned to the defendant, Stickney, the sum of 520 dollars, at two different periods; and that Stickney promised to repay the money, thus borrowed, as soon as Roulstone, (who was absent at the time,) should return to town.

<p>Debt on judgment. The declaration contained two counts. The first was upon a judgment obtained by the plaintiffs against the defendants, in the Circuit Court of Law of Mobile county, in the state of Alabama, of November Term, 1828, for 6402 dollars and 75 cents damages. The second count was on a similar judgment, for 6402 dollars and 75 cents damages, and 21 dollars and 61 cents costs,—the costs not forming a component part of the record, but appearing in the execution.</p> <p>The defendant, Niles, was returned by the sheriff “ not found ;" but Stratton appeared, and pleaded his discharge, under the act “ to abolish imprisonment for debt in certain cases,” in order to protect his person from the effect of a judgment. The plaintiffs replied to this plea, admitting the discharge, and praying judgment for their debt to be levied, not on the person of Stratton, but on his goods, lands, tenements, &c.</p> <p>The defendant, Winlhrop, pleaded to each count of the declaration, “ that he was not within the jurisdiction of the court of Mo- “ bile county, at the time the said suit was brought there, nor at “ any time afterwards, but was, and is a resident of the city of “ New-Yorlc; that he did not appear in person to said suit, or “ authorize any one to appear for him, nor had he any notice of “ the pendency of the suit, until long after said judgment was “ obtained.” [For the form of the plea, see Shumwayv. Stillman, 4 Cowen’s R. 292.]</p> <p>To this plea the plaintiffs replied, setting forth, in haec verba, the 8th section of the act of Alabama, for the better regulation of judicial proceedings, passed the 7th of February, 1818, which enacts, in substance, that when a cause of action exists against co-partners, the plaintiff may sue any one, or more of them. “ Jlnd when “ a writ shall be issued against all the partners of any firm, service of the “ same on any one of them, shall be deemed equivalent to a service on all, “ and the plaintiff-may file his declaration, and proceed to judgment, as “ if the writ had been served on each defendant, and the judgment shall “ be equally valid and effectual against all the defendants.”</p> <p>The replication then averred, 1st. That at the time of the drawing of the bill of exchange, thereinafter referred to, the defendants were co-partners, having a house of trade, established at Mobile, under the firm of Thos. N. Niles & Co., within the true intent and meaning of the said act, and that Niles resided there, superintending the affairs of the house.</p> <p>2d. That the cause of action, upon which the judgment was obtained, was a bill of exchange, drawn by the defendants under their said co-partnership firm, which bill is particularly described in the Judgment.</p> <p>3d. That the writ in the suit, in which the judgment was had, . was issued against all the defendants as such co-partners, to which writ was subjoined a copy of the bill of exchange, on which the suit was brought, and a written memorandum, stating that the same was brought on said bill; and that said writ was personally served, between its teste and return, on the defendant, Niles, in the county of Mobile.</p> <p>4th. That at the several times referred to, the act aforesaid was in full force within the state of Alabama, and that the said 8th section, contains all the act relevant to the subject.</p> <p>To this replication, the defendant rejoined, by setting forth that the co-partnership of the .defendants had been dissolved before the suing out of the writ mentioned in the replication, traversing specially, that the writ was served on Niles during the continuance of the partnership, and concluding with a verification.</p> <p>The plaintiffs demurred specially to the rejoinder, 1. Because it traverses matter not alleged in the replication. 2. Because no proper issue could be taken upon the traverse. 3. Because the rejoinder concludes with a verification, and not to the country. 4. Because the special traverse has no apt or proper inducement;— and, 5thly, because the rejoinder does not negative nor confess and avoid the matter contained in the replication, which it purports to answer.</p> <p>The defendant, Winthrop, having joined in the demurrer, the cause was argued, in writing, by Mr. Geo. W. Strong, for the plaintiffs, and by Mr. G. Sullivan, for Winthrop.</p> <p>For the plaintiffs it was observed, in the opening argument, that the Alabama act set forth in the replication, as applicable to the case in question, was the same as our act relative to proceedings against joint debtors, where all cannot be taken, (1 R. L. N. Y. ed. of 1813, p. 421, § 13,) the only differences being these:</p> <p>1st. The Alabama act is restricted to co-partners, while ours extends to joint debtors generally.</p> <p>2d. The Alabama act gives the alternative of proceeding either against one or more of the co-partners, or against all, and serving the process on any one of them.</p> <p>The latter alternative was adopted in the present case, and herein is the propriety of the averment in the replication, that the writ was issued against the defendants, under the co-partnership firm, and that a copy of the bill of exchange was subjoined to the writ. At least, such is the form of the writ, as contained in the exemplification of the proceedings; which shows what is the practical construction put upon the act by the courts of Alabama.</p> <p>1. A plea, like the present to a declaration, on a judgment obtained in one of our own courts upon a contract, would be undeniably bad, [Bank of Columbia v. Newcomb, 6 Johns. Rep. 98] and the facts disclosed in the replication, place the Alabama judgment upon the same footing, as if it had been obtained in one of our own courts.</p> <p>II. The rejoinder is clearly bad. 1. It traverses the continuance of the co-partnership at the time when the writ was served on Niles. There is no such averment in the replication.</p> <p>The averment there, as to the co-partnership is, that it existed at the time of the contract, viz. the drawing of the bill. A traverse, to be properly taken, must be upon some material averment contained in the antecedent pleading. An issue taken upon this traverse, would obviously be a departure from the replication.</p> <p>2. The continuance or discontinuance of the co-partnership, at the time of the service of process, is not the criterion to test the regularity of the proceedings under the Alabama act.</p> <p>The language of that act is, “ whenever any cause of action may “ exist against two or more partners,” &c. It is not, whenever a right of action does exist against, &c. The only true criterion, therefore, is the existence or non-existence of the co-partnership, at the time the contract is entered into, and to that time the averment of the co-partnership is cautiously restricted by the replication.</p> <p>Such is not only the necessary legal construction of the act, but it is the judicial interpretation put upon it by the Supreme Court of Alabama, shortly after the act was passed. [Click v. Click, M. S. Sup. Court of Alabama, Oct. Term, 1822.]</p>

This was an action upon a policy of insurance against fire. It appeared, that the plaintiff had effected insurance in the office of the defendants, to the amount of 800 dollars, “ on furniture and “goods contained in his counting-room, No. 3 Phoenix Build? “ings.” At the trial, the plaintiff proved his loss, and the due exhibition of his preliminary proofs; but it appearing that he had, after the loss took place, made an assignment of his property for the benefit of his…

Certiorari from the Marine Court. The defendant below,, was sued as administratrix of her husband, on a promissory note, for 50 dollars, made by him, in his lifetime, in favor of Garrif Gilbert; and endorsed by him to Rayner, without recourse. The defendant pleaded non-assumpsit and ptene administravit.

<p>The facts of this case sufficiently appear from the opinion of the court, and the preceding marginal abstract. It was an action of covenant for rent, tried before Mr. Justice Hoffman. At the trial of the cause, the plaintiff having shown the circumstances of the transaction, and having proved the handwriting of the defendant, (there being no witness to his actual signature,) the defendant moved for a non-suit upon two grounds first, because the name of Pepper had been erased after that of the defendant was signed and secondly, because the execution of the instrument by the defendant was not legally proved.</p> <p>The Judge ruled however, upon the first point, that the executing of the instrument, amounted to a mere acknowledgment of it, -for the purpose of having it witnessed, and'that a witness to a sealed instrument was not absolutely necessary, such witness being chiefly useful in proving a delivery of it. That the possession of the instrument by the plaintiff under the circumstances of the case, was sufficient to warrant them in finding that it had been duly delivered.</p> <p>The defendant having excepted to the ruling of the Judge, the jury found a verdict for the plaintiff.</p> <p>The defendant now moved to set the verdict aside, and for a new trial.</p>

<p>This was an action of covenant on a charter-party, bearing date the 13th of August, 1827, purporting to have been entered into, by and between the defendant, for J. D. Beers & Co., of the one part, and the plaintiff, as agent for John Idving, of the other part. The charter-party recited, that Joseph D. Beers & Co., being the owners of the brig Champion, had “ granted and to freight letten, to the party of the second part, the whole tonnage of that vessel, for a voyage from New-York to Omoa and thence back to New-York—and it contained the usual cove2 nants, providing that the vessel should, during the continuance of the voyage, be made and kept by the party of the first part, “ to the best of his endeavors, and at his own proper cost, tight, stanch and strong,” and sufficiently provided for such a voyage. The vessel was to receive her cargo at New-York, by a certain day, proceed with it to Omoa, and there take on board a return cargo for New-York ; and Mr. Living, was to have a free passage in her to Omoa.</p> <p>The plaintiff, on his part, was to furnish a specified freight, for the outward, and a cargo of logwood for the homeward voyage. For the use of the vessel outward, he was to pay 450 dollars, and a certain sum per foot, for all the logwood brought home in her.</p> <p>The declaration contained two counts: the first, after setting forth the terms of the charter-party, and averring a general performance, on the part of the plaintiff, of all things on his part, to be performed, alleged that the plaintiff furnished the said outward cargo, for the vessel, which was on the 27th of August, 1827, received by the master; who, on the same day set sail, and proceeded toioards the port of Omoa, &c. The breach assigned was, that the vessel did not proceed to Omoa, but on the contrary, before her arrival at that place, to wit, on the 18th of September following, proceeded to, and stopped at the port of, Norfolk, in the state of Virginia; and although the defendant ought to have despatched, and was then and there “ required, by the said plaintiff, to despatch and send the said vessel to said port of Omoa ; “ and although the said vessel ought to have proceeded from said “Norfolk, on her said voyage, yet the said vessel did not proceed, “and the said defendant did not despatch the said vessel, with her “said cargo, on her voyage aforesaid; but on the contrary,” the said defendant neglected and “ refused so to do against the will of the “said plaintiff, and contrary to the form and effect of the said charter-party, and the covenant of the said defendant in that behalf; “by means whereof, the said plaintiff lost sundry great gains “and profits, which would have arisen from the said cargo, if the “same had been carried to Omoa, and was also put to great ex- “ pense,” &c.</p> <p>The second count, after setting forth the covenants of the charter-party, and the sailing of the vessel, with her cargo on board, assigned as the breach, “ that the said vessel was not made and “ kept by the said defendant, to the best of his endeavors, tight, “ stanch and strong, and sufficiently manned, tackled, provided “ and apparelled,” “ but on the contrary thereof, the said vessel, “at the time of the commencement of her said voyage, and during “ the same, was rotten and unseaworthy, by reason whereof she “ was unable to prosecute and continue her said voyage, and after “ the said voyage had been commenced, the same was, afterwards “at Norfolk,” “on the 19th day of September,” “with the “consent of the said defendant, and against the wishes of the said “ plaintiff, broken up and abandoned,” &c.</p> <p>The defendant pleaded six special pleas in bar. The first plea, after admitting the execution of the charter-party, the sailing of the vessel, and that she put into Norfolk, as alleged in the first count of the declaration, set forth as an answer to the breach specified therein, that while the vessel was on the high seas, pursuing her said voyage, she was, by the force and violence of “ the winds and waves, and by injuries from the perils of the seas, “ so much damaged” that it “ became necessary for the safety “ of the vessel, cargo and crew, that she should put into the “ nearest port, and thereupon the said brig made sail for the port “of Norfolk, as a port of necessity,” ”and arrived there on the “ 18th day of September, in the year last aforesaid, and the said “plaintiff, then and there received and took possession of the said “ cargo,” and ever afterwards kept the same in his possession ; “ without this, that the said brig ought to have proceeded from said “ Norfolk on her said voyage to Omoa, and the said defendant “ ought to have despatched and sent said brig with her said cargo “ on her voyage aforesaid, and that the said defendant neglected V and refused so to do, against the will of the said plaintiff,” &c.</p> <p>The second plea, which was to the second count, was exactly like the first, with the exception of the traverse, which, in this plea, formally denied the facts, as stated in the breach set forth in the second count.</p> <p>The third plea admitted the charter-party, the lading of the cargo on board by the plaintiff, the sailing of the vessel and her putting into the port of Norfolk, as stated in the declaration, but averred that the said brig, while on the high seas pursuing her Said voyage, was, by the force and violence of the winds and waves, and by damages from the perils of the seas, so much injured in her masts, spars, sails and riggingfand so much strained in her upper works, and injured in her hull,” that thereby it became “ necessary “ for the safety of said brig, cargo and crew,” that she should put into the nearest port, “ and thereafter the said brig made sail for “ the port of Norfolk, as a port of necessity, and so, and not other- “ wise, put into the said port of Norfolk,” and arrived there the said 18th of September; and, while at Norfolk, the said vessel “ was duly examined with a view to ascertain the repairs “ expedient and necessary to enable her to proceed on her voyage, and it was found to be necessary “ to sell the said brig for the “ benefit of all concerned;” and thereafter the said brig was “ necessarily sold, and so, and not otherwise, the voyage aforesaid” “ was, by the mere perils of the seas, broken up and prevented ; “ without this, that the said brig ought to have proceeded from said “ Norfolk, on her said voyage to Omoa, and the said defendant “ ought to have despatched and sent the said brig, with her said “ cargo, on her voyage aforesaid, and that the said defendant “ neglected and refused so to do against the will of the said “plaintiff” &c.</p> <p>The fourth plea, (which was to the second count,) followed the words of the third, down to the traverse, and then concluded by denying that the said brig was not made and kept by the said defendant “ tight, stanch and strong, and sufficiently manned, “ provided, tackled and apparelled, with all things necessary for “ said voyage ; and that the said brig, at the time of the com- “ mencement of said voyage, and during the same, was rotten “and unseaworthy, by reason whereof she was unable to prose- “ cute and continue her said voyage, and that after the said voy- “ age had been commenced, the same was, afterwards at Norfolk, “ with the consent of the said defendant, and against the wishes “of the said plaintiff'broken up and abandoned.”</p> <p>The fifth plea was to the first count. It craved oyer of the charter-party referred to in that count, and after setting out the covenant at full length, averred that the plaintiff ought not to maintain his action, because the cargo, “ in the said first count “ mentioned, was owned by and laden on board of said brig or vessel, “jor ami on account of the said John Living, in the said charter- “ Party named.”</p> <p>The sixth plea was in all respects like the fifth, except that being in reply to the second count, it was properly adapted to it.</p> <p>The plaintiff demurred to the first, second, fourth, fifth and sixth pleas, and took issue upon the third.</p>

After judgment was pronounced in the preceding case, the plaintiff filed a replication to the fourth plea, and the cause was Upon ^lie jssues tendered by the replications to the third and fourth pleas.

This was a special action on the case for the non-delivery of certain goods, bargained and sold by the defendant to the plaintiff.

The question in this case was, whether the defendant was a partner with the plaintiff or not. It was an action of indebitatus assumpsit, for money had and received, money lent and advanced, &c.; and the defendant, for the purpose of defeating a recovery, in an action at law, set up a partnership with the plaintiff, as his defence.

The plaintiff in error, in this case, had entered into partnership with one Fisher, with whom, he carried on the business of harafterwards having dissolved the he sold out his interest in the joint stock to Fisher, and surrendered the possession to him.

This was an action of assumpsit,brought by the endorsee against the defendant, as endorser of a promissory note of the following tenor. New-York, June 18, 1827. On demand, we promise to pay to the order of Simeon Hyde, eight hundred dollars, for value received, with interest from date, without default or defalcation. Hyde & Banta.

Assumpsit, to recover of the defendants the balance of an account. The declaration contained the common counts for goods sold and delivered, money lent, money had and received, &c., together with the usual count upon an account stated. The defendants pleaded, 1. The general issue. 2. Payment. 3.

This was an action of assumpsit for money had and received ; the declaration containing the common counts, to which the defendant pleaded the general issue. At the trial of the cause, it appeared, that several months before the present action was corn» menced, the plaintiff had instituted a suit, in the Supreme Court, against one Jera Waterbury, Micaiah Moore, JohnN.

This was an action of debt, founded upon a submission to arbitration, and the award made in pursuance of it.

This was an action of assumpsit against the defendant as the drawer of the following check or order, the plaintiffs being the payees and holders thereof. “ Capt. Ring, “ Please to pay Messrs. Elting & Shook, one hundred dol- “ lars, and oblige Stephen J. Brinkerhoff.” “ June 3d, 1822.” The declaration contained a count upon the order, together with the common money counts. Plea the general issue.

This was an action of assumpsit, for work and labor as a “ physician, surgeon and apothecary,” bestowed by the plaintiff on the defendant’s wife, and for medicines found and provided by the plaintiff, and used and applied by him in the course of his attendance as such physician.

This case came before the court upon a general demurrer to the first count of the declaration, which set forth, that in and by a certain agreement between the plaintiff and the defendants, dated the 4th day of March, 1827, it was stipulated that the plaintiff should subscribe for, and take 80 lots of ground, on a certain tract in the city of New-Yorlc, called the Bloomingdale Tract, “ agreeably to “ the conditions, as set forth in said articles of subscription, and to “ pay…

This was an action of debt, upon a judgment obtained by the plaintiff against the defendant in the Marine Court.

Assumpsit for goods sold and delivered. The declaration contained the common counts only, and the defendant pleaded the general issue.

Assumpsit on a special contract. The declaration set forth that, in consideration that the plaintiff would purchase, procure, and deliver to the defendant the promissory notes of the New-Jersey Manufacturing and Banking Company, to such an amount as the plaintiff might be able to purchase or procure, to be discounted by the defendant for the plaintiff, and also in consideration that the plaintiff had agreed to allow the defendant a certain sum of money for discount upon said…

<p>This was an action of covenant, upon a charter-party, bearing date the 6th of September, 1826. The defendant, it appeared, chartered of the plaintiff, as agent of the owners, the brig Emblem, (of which the plaintiff was master,) fora voyage from New-York to Gibraltar, thence to Santa Cruz, in the island of Teneriffe, thence to Havannah, in the island of Cuba, and from thence hack to New-York. By the terms of the charter-party, the vessel was to receive a cargo at each of the above named ports, to be transported from one to the other in the order in which they are named, the charterer paying 3000 dollars for the use of the brig during the voyage. The vessel was to he allowed 60 lay-days for receiving and discharging her cargoes; and, if a longer time were required by the freighter, he was to pay demurrage, at the rate of twenty dollars a day for every day the vessel might be detained. Of the freight, 500 dollars were to be paid at Gibraltar, 500 at Santa Cruz, 200 at Havannah, (if required,) and the balance on the return of the vessel to New-York. It was also stipulated, that “ a supercargo should have his passage free in the cabin, he finding his own provisions.”</p> <p>The declaration set forth the charter-party at length, and averred that the vessel received her cargo at New-York, accord- ■ mg to the terms of the agreement; transported, and delivered the same at Gibraltar; received on board a second cargo for Santa Cruz, and delivered the same there; received on board another cargo at Santa Cruz, delivered it at Havannah; received onboard a fourth cargo there, and returned with it to New-York. And although the plaintiff had, at all times, since the making of said “ charter-party, well and truly performed, fulfilled, and kept all thin gs in the said charter-party contained, on his part and behalf to be performed” &c. yet the defendant kept the said brig on demur-rage, at New-York, for the space of six days, over and above the lay-days; and neglected, and refused to pay the balance due upon the charter-party, amounting to 1600 dollars.</p> <p>The defendant pleaded, 1. JVbra est factum. 2. That he did not keep the vessel on demurrage at New-York. 3. That he had paid the said sum of 1600 dollars, on the 24th day of May, 1817, upon the return of the vessel to New-York. 4. That the plaintiff did not proceed with said vessel from Santa Cruz to Havannah but, on the contrary, without any reasonable or probable cause, proceeded from Santa Cruz to another port or place in the island of Teneriffe, called Oratava, detaining the vessel there for the space of 30 days, “ by reason of which deviation from the “ voyage in the said charter-party mentioned,” the defendantwas “ disabled from loading or sending alongside of said brig at Havannah, a full homeward bound cargo.”</p> <p>The plaintiff joined issue upon the first, second and third pleas, and replied to the fourth, by protesting, that the vessel did not proceed from Santa Cruz to Oratava, and that the plaintiff did not, without reasonable cause, detain her there; and denying that the defendant was, by reason of any such delay, disabled from loading or sending alongside the said brig, a full homeward bound cargo: and this, he prayed, might be inquired of by the country;</p> <p>At the trial of the cause, it appeared that the defendant put one Pritchard on board the vessel as a supercargo, and that he continued on board during the whole voyage. That the brig sailed from New-York on the first of October, 1826, for Gibraltar, and arrived there on the 4th of November; departed from Gibraltar on the 29th of the same month, and arrived at Santa Cruz on the 18th of December. The supercargo, finding it difficult to procure either freight or passengers at Santa Cruz, persuaded the plaintiff to proceed to Oratava, on the west side of Teneriffe, for the purpose of procuring them there. The vessel accordingly left Santa Cruz on the 10th of February, arrived at Oratava on the 15th, took on board there, thirty passengers, together with a quantity of brandy; departed on the 19 th, and arrived at Havana on the 27th of March. The lay-days expired at Santa Cruz, and the vessel sailed from Havana on the 29th of April, with about one-half or two-thirds of a full cargo on board, and arrived at New-York on the 13th of May.</p> <p>It was stipulated in the charter-party, that the freighter might have all surplus room in the cabin, for the use of passengers, by paying the master 200 dollars, over and above the amount of the freight; .and it appeared by the evidence, that the plaintiff received that sum for going to Oratava. All the money paid by the passengers was received by the supercargo.</p> <p>The plaintiff, for the purpose of proving that the vessel proceeded from Santa Cruz to Oratava by the direction of Pritchard, gave in evidence his declarations made at the time; and to this testimony the defendant objected. The Chief Justice, (before whom the cause was tried,) ruled, that the declarations of Pritchard, accompanied by his acts, might be given in evidence as part of the res gestos. That if the defendant denied the authority under which Pritchard appeared to act, he could call him as a witness, or show his want of authority by other proof. But as he was on board during the whole voyage, acting as supercargo, the jury might infer, that he was the agent of the defendant, until the contrary was shown. To this opinion the counsel for the defendant excepted.</p> <p>After the evidence oh the part of the plaintiff was closed, the defendant moved for a nonsuit, upon the ground of a variance between the declaration and the proof; the declaration alleging a direct voyage from Santa Cruz to Havana, whereas, in point of fact, the vessel proceeded to Oratava, and was detained there a considerable time. This motion, however, was denied, with liberty to the defendant, to move to set aside the verdict if in favor of the plaintiff.</p> <p>As there was some controversy as to the weight which ought to be attached to the testimony of one of the witnesses for the plaintiff, and also as to the amount due, (the plaintiff having exhibited his accounts,) the cause was summed up for both parties upon the evidence. The Chief Justice then charged the jury, that if the vessel proceeded to Oratava, with the assent of the supercargo, for the benefit of the charterer, that that deviation would not defeat the plaintiff’s right of recovery. That the supercargo having been the agent of the defendant, would be presumed, in the absence of all proof to the contrary, to act for the benefit of his employer; and that in this case, his object seemed to be, to ob tain freight and passengers, which could not be procured at Santa Cruz. That as to the effect of the deviation, the defendant had pleaded, that it had hindered him from procuring a full cargo at Havana, but he had offered no proof to support this plea.</p> <p>The jury returned a verdict for 1,463 dollars in favor of the plaintiff, and the defendant, having tendered a bill of exceptions, now moved for a new trial.</p>

The defendants insured the plaintiff “ one thousand dollars on “ his stock in trade, as a baker, and on household furniture, contained in a framed dwelling-house and bake-house, front and “ rear, situated at No. 17 Thomas-street,” for one year from the 18th day of March, 1828 : and this action was brought to recover the amount of a loss sustained by a fire which took place on the 12th of September following. The cause was tried before the Chief Justice.

This was an action of assumpsit, brought in the name of the plaintiff, to recover of the defendants a balance of 11,259 dollars, due from them, for deposites made in their bank by the plaintiff, and for collections made by them on his account.

<p>Where a party, upon an affidavit, sets forth the facts which he wishes to establish; under a commission to a foreign country, and shows that those facts can only be proved by persons in the employment of his antagonist, whose names are unknown to him, the court will either permit the commission to issue generally without the names of the witnesses, or grant a stay of proceedings until their names can be ascertained.</p>

<p>A subscriber to the stock of an incorporated company, has, by the act of subscribing, such an interest in the stock of the company, as will furnish a sufficient consideration to support a promise on his part, to pay the amount of his subscription, And the remedy of the company for the'non-payment of the instalments, duly called for, according to the terms of the subscription, is not confined to a forfeiture of the shares,—but they may maintain an action of assumpsit, upon the promise contained in the subscription, for the amount of the instalments.</p> <p>The subscriber, who pays the amount of his subscription, can compel the company to furnish him with a proper certificate of his stock; and where, by the terms of subscription, the first instalment was not to become payable, until a certain amount of stock was subscribed for, a call for the first instalment, was deemed tantamount to a notice to the subscriber, that the requisite amount had been taken up.</p>

<p>The declaration in this case, was exactly like that in the preceding case against Seixas. The fifth count was a general one, stating that the defendant was indebted to the plaintiffs in the sum of 1600 dollars, “ for moneys due, payable, and owing,” from the defendant to the plaintiffs, “ for and respect of divers, to wit, sixteen shares of the capital stock of the Harlaem Canal Co., of which the “ defendant was proprietor,” “ by virtue of divers calls made by the directors of said company,” for the same.</p> <p>To the first, second and fifth counts, the defendant demurred specially, and pleaded the general issue to the third and fourth. The third count was substantially like the second, but more speeific in its averments, and the fourth was a general one, for sixteen shares of stock sold and delivered to the defendant. The causes of demurrer assigned to the first count, were, 1. the want of consideration; 2. that it did not appear from the count, what instrument, if any, the defendant subscribed, nor how, nor with whom he agreed to pay for the shares therein mentioned; 3. that there was no averment, that the work was ever commenced, nor does it appear, that the payment of the first instalment was requisite ; 4. It does not appear, that the contractors were ever in advance to the company, in expenditures for the objects mentioned, to the amount of 20,000 dollars, or any other sum; nor does it appear to whom the five instalments were to be paid. 5. No assumpsit or promise, is laid in the count, to pay the first instalment nor the subsequent ones to the plaintiffs, nor does it appear that any delivery or tender of a certificate of stock was ever made to the defendant, nor that he was in fact a stockholder. 6. It does not appear how, nor by whom the first instalment was called for, nor what notice the defendant had of such a call, nor that he was ever informed that a sufficient amount of stock had been subscribed for, to justify the commencement of the work.</p> <p>To the second count it was objected, (in addition to the exceptions taken to the first count,) that in one part of the count it is alleged, that the defendant had promised to pay the first instalment to the plaintiffs, and in another part, that the same was to be paid to Post, Miller & Kent, as trustees, and that the defendant was required to pay the same to them accordingly.</p> <p>To the fifth count it was objected, that it was defective for uncertainty, and that it did not show how, nor by virtue of what undertakihg the defendant was indebted to the plaintiffs; nor the amount or nominal value of a share of the stock, nor the defendant’s engagement in relation to the same. 2. That it did not appear that the defendant had ever subscribed for such stock, nor how he became a proprietor thereof, nor how the money was due and payable, nor at what time, nor upon whom the calls for payment were made, nor the nature thereof, nor the time when the money demanded became due and payable under the calls.</p>

Assumpsit upon a promissory note for 500 dollars, bearing date the 31st of March, 1828, drawn by one John F. Gannon, in favor of Joseph D. Palmer, and endorsed by him and the defendant.

This was a petition for a discovery, under the provisions of the revised statutes. The plaintiff brought an action of debt against the defendant, to recover of him the penalty of fifty dollars, [1 R. L. 524, sec. 20,] for not appearing as a witness in a certain cause, wherein M‘Keon was plaintiff, and one Caherty was defendant.

<p>Assumpsit for money had and received by the defendant, belonging to the estate of the intestate. It appeared at the trial, that the intestate had held previously to his decease, certain notes of one MTiibben, amounting to 1475 dollars, which he had paid for MTi.’s benefit; but what had become of the notes, at the time of the intestate’s death, did not distinctly appear.</p> <p>MTiibben had placed in the hands of the defendant, an attorney and counsel of the court, a policy of insurance for collection, and received of him a certificate in the following words :—“ I “ have taken proofs of Mr. M’Kibben’s loss by the late fire, No. “ 132 Bowery, and have certified to the Brooklyn Fire Insurance “ Company, the amount of his loss to be on stock 3000 dollars, “ and on furniture 300 dollars, and this I believe to be correct “ from the proofs produced before me. The policy remains in my hands to await the answer of the company. (Signed) Wm. “T. M‘Coun, Feb. 14, 1827”</p> <p>Upon this certificate M’Kibben made the following endorsement:—Wm. T. M'Coun, Esq.—Sir, I hereby authorize you to hold' the policy of insurance expressed in the annexed note, received from you, subject to the order of Oliver G. Kane, Esq., New-York, 15th Feb., 1827. (Signed) Hugh M’Kibben.</p> <p>The certificate, thus endorsed, was delivered by him to Kane, and the defendant having commenced a suit on the policy, recovered a judgment, the net. proceeds of which, amounted to 1400 dollars.</p> <p>In the month of June, 1827, Kane gave to the defendant a special written notice and statement of his claim against M’Kibben, amounting in the whole to 1475 dollars.</p> <p>At the trial of the cause these facts were proved, but the plaintiff did not produce the notes against M‘Kibben, which laid the foundation of the claim of the intestate against him.. The defendant therefore contended, that norecovery could be had, unless the notes were produced, or a satisfactory reason for their non-production was shown, or until further proof was offered as to the debt due from M'Kibben to Kane. The defendant was ready to pay over the money to the person who had the rightful claim to it, but did not wish to assume the responsibility of paying it over to the plaintiff upon this evidence.</p> <p>The presiding Judge (Hofiman) being of opinion that the notes should be produced, or their non-production accounted for, before the plaintiff could recover, nonsuited him, and a motion was now made to set the nonsuit aside.</p>

Assumpsit for money had and received. Plea, the general issue. It appeared from the testimony, introduced on the part of the plaintiff, at the trial of the cause, that the defendant sold to the intestate, during his lifetime, a ticket in the “ Washington Canal Lottery”—a lottery established for the benefit of a company in the district of Columbia.

<p>Where foreign plaintiffs become insolvent after the commencement of a suit, and the 100 dollars, required by the 55th rule of this court, are deemed an inadequate security for the costs which may accrue, the court will compel the plaintiffs to file proper security for the costs, and will stay proceedings until the security be furnished.</p>

This cause was transferred from the Supreme Court to this court, by a consent of parties, and the questions raised in it were presented by a case made. The action was debt on a bond for four thousand dollars, bearing date the first of September, 1815, with a condition for the payment of one thousand dollars in one year from its date, and a further sum of one thousand dollars on the first day of September, 1817.

<p>Where the attorney for the plaintiffs, through inadvertence, neglects to file a replication to the defendant’s plea of payment, and takes an inquest against him before the pleadings are formally closed; the court will, under proper circumstances, permit a replication to be filed after the inquest, nunc pro tunc.</p> <p>But where the defendant’s attorney was aware of the fact, that the replication was not filed, and lay by for the purpose of availing himself of the defect, and then, upon the plaintiff’s application for leave to file his replication, nunc pro tuna the defendant himself swore to a defence upon the merits, the court refused to allow the replication to be thus filed, but compelled the defendant to pay all the costs’ of the inquest and the motion, as a condition upon which the plaintiff’s application was refused.</p>

This is the same cause which was formerly before the court, upon a case made, [ante, p. 226.] The court on that occasion, gave judgment for the defendants, but, by an arrangement of the parties, it was again brought before the jury, and tried at the last July term before Mr. Justice Oakley. The evidence introduced at the second trial did not differ materially from that produced on the former occasion, and it is not therefore recapitulated here.

Assumpsit, to recover of the defendants the sum of 481 dollars, deposited in .the Chemical Bank, under the following circumstances. The plaintiff was an illiterate man, tyho kept a grocery, and his wife was in the habit of attending the shop during his absence. Neither of them could read or write; but, in the course of their business, having accumulated a quantity of specie, the plaintifftold his wife to deposit it in some bank.

Assumpsit upon a promissory note for 500 dollars, drawn by the defendant in favor of Henry Butler & Co., and payable to their order, ninety days after date, and endorsed by them in blank. The cause was tried before Mr. Justice Hoffman; and at the trial the plaintiff’s counsel having produced the note, and proved the handwriting of the maker and endorsers, rested his cause.

This was a motion to set aside a verdict in favor of the defendants, and for leave to amend the plaintiff’s pleadings by filing a replication to the defendant’s fourth plea. The facts of the ease w'ill sufficiently appear on reference to the preceding marginal abstract, and to the report of the proceedings upon the demurrer. [Ante p. 86.]

Trover for 385 barrels of turpentine. Plea, the general issue.

<p>A mistake in the declaration, as to the Christian name of a plaintiff, is not a ground of nonsuit at the trial; and such mistake cannot be taken advantage of, except by a plea in abatement.</p> <p>A conditional sale of property, accompanied by a delivery of it to a third person, who is to hold.the same, as the common agent of the contractmg'parties, until the terms of sale are complied with, will not vest the title to the property in the purchaser, until the condition precedent is fulfilled.</p> <p>The plaintiffs, through B., an agent, agreed with R. & C., to advance a sum of money sufficient to cover the first cost of a quantity of turpentine, upon condition, that the turpentine, when purchased, should be shipped and consigned to them at London, “freight free,” by the bills of lading: R. & C. acceded to the terms, and a quantity of turpentine was purchased by B., the agent, and R., one of the contracting parties, and put on board a ship which R. & C. had chartered of the defendants for a voyage to London and back. It was agreed between B,, the agent, andR. & C., that the turpentine should not become the property of the latter, until they had produced bills of lading therefor, signed “ freight free;” and upon these conditions, B., the agent, paid for the turpentine, with money received of the plaintiffs; put it on board the ship, taking receipts therefor in his own name. The master of the vessel, with the approbation of the defendants, refused to sign bills of lading for the turpentine, “freight free,” contending that they had a lien on it for the freight money mentioned in the charter-party. The contemplated voyage was, by this means, broken up, and the defendants took the turpentine out of the vessel and sold it.</p> <p>Held, that R.&C., not having complied with the condition upon which the turpentine was to become theirs, had no title to the property; and as the plaintiffs had paid for the turpentine and received possession of it through B., the agent, they were entitled to maintain frnier for the conversion of it by the defendants.</p> <p>Held, also, that the turpentine, under the circumstances of the case, was not put on board the ship under the charter-party, and that the defendants, therefore, had no lien on the property for their freight.</p>

<p>This was a special action on the case, in assumpsit. The declaration contained eight counts; seven of which were special, and set forth the plaintiff’s cause of action in various ways ; the last was general, for money paid, money lent and advanced, money had and received, &c.</p> <p>The first count alleged,- that the defendants were merchants and co-partners in trade, transacting their business at the city of New-York, under the name of N. Rogers & Sons. That the plaintiff, on the 20th day of Sept., 1821, had in his hands 124 bales of cotton, belonging to certain persons carrying on trade and commerce at Huntsville, in Alabama, under the name of L. Morgan & Sons, to be sold by the plaintiff as their agent and factor, and for their account and benefit. That the plaintiff, on the day and year aforesaid, as the agent and factor of Morgan & Sons, sold and delivered said cotton to one James Andrews, of Boston, for the consideration of $4993 and 92 cents, paid to the plaintiff. That Andrews, in the month of Oct., 1821, commenced an action against the plaintiff, in the Supreme Court of the State of New-York, to recover damages in the sale of said cotton, upon the ground that the bulk of it did not correspond with its samples Thatin the month of August, 1822, while said suit was pending, Morgan & Sons, being desirous of withdrawing from the hands of the plaintiff the sum of 463 dollars and 31 cents, part of the proceeds of said cotton, (which the plaintiff held to indemnify himself against said suit,) and of paying over the same to the defendants, to be retained by them as the consideration for their promise and undertaking hereinafter specified, for the purpose of inducing the plaintiff to deliver up said last mentioned sum, that it might be so paid over to the defendants, addressed a letter to them of the tenor following, viz:</p> <p>“New-York, August the 5th, 1822.</p> <p>“ Messrs. N. Rogers & Sons,</p> <p>“ Gentlemen,—A suit has lately been commenced in the Supreme Court ©f this State, by James Andrews, of Boston, “ against Henry Kneeland, of this city', relative to a sale hereto- “ fore made by Mr. Kneeland to Mr. Andrews, of a parcel of “ cotton, then belonging to us ; in which suit the plaintiff has laid “ his damages at $2500. The sale having been made for our “ account, we are of course liable for any damages that may be « recovered in the suit; and being desirous of providing a full " indemnity in this respect, to Mr. Kneeland, we hereby autho- “ rize and request you to pay to him all such sums of money as he may be required to pay, as well for any damages that shall “ happen to be recovered against him in-the suit abovemention- “ ed, or otherwise, in relation to the sale of said cotton, as also “ all costs and charges to which he may necessarily be put in “ that behalf; including reasonable counsel fees to the counsel “ to be by him employed in relation to the said business. Your “ advances to Mr. Kneeland for the above, to be made from “ time to time, as the occasion may require ; or otherwise at his « election. By complying with this request, and charging your “ advances to our account, you will oblige your obedient servants, L. Morgan Sons.”</p> <p>That the defendants, upon the' presentment of said letter to them, endorsed a memorandum on the back thereof, in the words following, viz : “ We will promptly comply with the requests of Messrs. L. Morgan & Sons, as contained in the within order. “ New-York, August 5th, 1822. N. Rogers & Son.”</p> <p>The plaintiff then averred, that the said order and endorsement were delivered to him on the day and year aforesaid, and that thereupon he paid over to L. Morgan & Sons the said sum of 463 dollars and 31 cents, which they, on the same day, paid over to the defendants, who received the same as the consideration of their said promise .and undertaking. That afterwards, at the May Term of the said Supreme Court, in the year 1827, the said James Andrews recovered judgment against the plaintiff in the aforesaid suit, for the sum of 1648 dollars and 98 cents as damages; which said sum, together with 131 dollars and 49 cents, for costs, and 350 dollars for counsel fees in said suit, the plaintiff had been compelled to pay: of all which the defendants had notice. By reason of which premises, and by force and effect of the said memorandum, signed by the defendants, they became liable to pay to the plaintiff the said several sums of money ; and in consideration thereof, undertook and promised to pay the same to the plaintiff, &c.</p> <p>The second count set forth, the pendancy of the suit by Andrews against Kneeland, the liability of Morgan & Sons to save the plaintiff harmless from all its consequences, and their desire to provide a full indemnity for him. That the defendants, on the same 5th day of August, 1822, in consideration of the sum of $463 31 cents, paid to them, by the plaintiff at the special instance and request of Morgan & Sons, undertook and faithfully promised the plaintiff, that they would pay to him all such sums of money as might be required to satisfy the damages which might be recovered against him in said suit, and all costs and charges to which he might necessarily be put in that behalf: and that such advances should be made, from time to time, as occasion might require. It then set forth the recovery of the judgment by Andrews; the satisfaction thereof by the plaintiff; his costs and charges; notice to the defendants; and concluded by averring that the defendants, not regarding their promise and undertaking last aforesaid, had deceived and defrauded the plaintiff in this; that though often requested to refund to the plaintiff the said sums of money, they had wholly neglected and refused to do so, &c.</p> <p>The other five special counts, set forth the contract, founded upon the same facts, in various ways ; but as the opinion of the court in reference to the pleadings involved in the cause is con-' fined to the second count, it is not deemed necessary to describe the other counts more particularly.</p> <p>The defendants pleaded the general issue to the whole declaration, and four special pleas to the first seven counts.</p> <p>The first special plea alleged that the plaintiff ought not to maintain his action, because in the sale of the said cotton to Andrews, the parcels exhibited as samples, were superior in quality to the bulk thereof.</p> <p>The second set forth,- that the plaintiff conducted the sale of said cotton so negligently and improperly, that thereby the action of Andrews against the plaintiff accrued, and judgment was obtained against him.</p> <p>The third plea alleged that the sale of said cotton was conducted fraudulently by the plaintiff, and that thereby the cause of action accrued to Andrews, and judgment was obtained against him, &c.</p> <p>The fourth plea alleged, that the plaintiff ought not to recover, because, by the record of the judgment in said action, it appears that judgment was awarded to Andrews against the plaintiff, for the cause that, in the sale of said cotton, the plaintiff deceived and defrauded Andrews, &c.</p>

This was an action upon a policy of insurance against fire, for one year, dated the 9th day of January, 1827, and expressed in the following terms: “ The Tradesmen’s Insurance Company in the City of New- “ York, by this policy of insurance, in consideration of thirty- “ three dollars, to them paid, by the insured hereinafter named, “ the receipt whereof ishereby acknowledged, do insure N. M. Delonguemare, of the city of New-York, against loss or damage by fire, to the amount…

<p>This was an action upon a policy of insurance against fire. The policy bore date the 5th of January, 1827, and by it, the plaintiff was insured by the defendants to the amount of $1750, for one year, (commencing on the 10th day of December, 1826,) " on a frame building, in three tenements, situated on the corner “ of New-York Wharf and Commerce-street, in the city of Mo- “ bile, privileged to contain hazardous goods, per report No. “ 36,748, filed in the Washington Office.”</p> <p>The cause was tried before Mr. Justice Oakley. At the trial, it was proved that the premises insured were totally destroyed by fire in the month of October, 1827; and there was no controversy as to the interest of the plaintiff, or the sufficiency of his preliminary proofs.</p> <p>The company set up, as their defence, the breach of a warranty implied in the policy, (as they contended,) on the part of the plaintiff, that he would not, during the continuance of the risk, erect any building upon certain vacant ground, contiguous to the premises insured. They therefore introduced the plaintiff’s application for insurance as evidence, which bore date at Mobile, the 23d of November, 1826. This application was contained a letter addressed by the plaintiff to his correspondents in New-York, wherein he requested them to effect insurance in his behalf, to the amount of $3500, for twelve months, on his store, “ situated on the corner of Commerce-street and New-York “ Wharf;” and, for particulars, they were referred to a diagram annexed to the letter. By this diagram, it appeared, that Commerce-street was formed of planks projecting over the water, and the premises insured lay upon the corner of a Square comprehended between Commerce-street, Alabama-street, Water-street, and New-York Wharf.</p> <p>Immediately adjoining the premises insured, were two other stores, and these three occupied the whole space fronting onCommerce-street, which intervened between New-York Wharf and Alabama-street. The space in the rear of these stores, and between them and Water-street, was marked on the diagram as “ vacant,’’ and there was also an alley-way near to Water-street, marked out on the same vacant space, as extending from Alabama-street to New-York Wharf; and the word “ vacant” was placed on the diagram between the premises insured and the alley. After exhibiting this diagram the defendants offered to prove, that after the insurance was effected, and during the continuance of the risk, the plaintiff had erected other buildings immediately contiguous to the premises insured, and that the risk was thereby increased.</p> <p>To the admission of this evidence, the counsel for the plaintiff objected, upon the ground, that it did not constitute any defence to the action. The Judge decided that the evidence was not admissible, unless the defendants also meant to show that the plaintiff intended, at the time of effecting the policy, to build upon the vacant ground, and concealed that intention from the defendants; or unless they could show that the fire originated in, or was occasioned by, the adjacent buildings so erected. To this decision the counsel for the defendants excepted.</p> <p>The defendants then introduced evidence, which tended, in some degree, to show, that at the time the policy was effected, there were other buildings on the square besides those designated on the diagram, or at least upon that part of it lying between the alley-way and Water-street; and it clearly appeared that the or th® plaintiff and other persons, had erected buildings, near to the premises insured, on the vacant ground, after the policy was effected, and during the continuance of the risk.</p> <p>The defendants then offered also to prove, that there existed a usage at New-York, whereby the insured was bound to give notice to the insurers of any act done by himself after effecting the policy, which increased the risk; and that by such usage, the insurers had the privilege of continuing the policy after the notice, or of abandoning, it at their option. To the introduction of this evidence, the plaintiff objected, and it was overruled by the presiding Judge. To this decision, the defendants also excepted. There was no evidence offered to show that the fire, which destroyed the plaintiff’s store, originated in the buildings erected on the ground which was vacant, when the policy was made; neither did it appear that the fire approached the premises insured, through the medium of the new buildings.*</p> <p>Upon this evidence, the Judge charged the jury, that the representation made by the plaintiff, as to the situation of the premises insured, in relation to other contiguous buildings, did not amount to a warranty that the ground, designated as “ vacant,” should be kept so during the continuance of the risk; and that the erection of other buildings by the plaintiff, after the date of the policy, on the vacant ground, did not vitiate' the policy, unless the intention to erect such buildings existed in the mind of the plaintiff at the time he effected the insurance. That in such case, there would be a fraudulent concealment, on his part, of a fact material to the risk; but that the burthen of proving such fraud, rested upon the defendants.</p> <p>The Judge also instructed the jury, that they were to find whether the representation made by the plaintiff to the defendants as to the situation of his store, in reference to other contiguous buildings, was true in point of fact: and if not true, whether the difference between the actual and the represented situation of the building materially enhanced the risk at the time the policy was effected. That if the representation was untrue in fact, still that their verdict would be for the plaintiff, unless the risk was materially increased by the actual situation of the store, in relation to the other buildings, or unless the plaintiff had concealed such actual situation with a fraudulent design.</p> <p>The Judge also further charged the jury, that as the word " contiguous,” when applied to buildings, was uncertain and indefinite, they must give it such a meaning as they supposed was intended by the parties. That the proof on the part of the defendants, as to the existence of other buildings between the alley-way and Commerce-street, besides those designated on the diagram, was vague and uncertain; but if the jury were satisfied that such buildings were placed upon the ground assumed to be vacant, they were then to determine whether the risk was materially enhanced by such buildings. The jury were also charged that they were to determine whether the plaintiff’s representation, as to the vacant ground in the rear of the buildings on Commerce-street, extended to Water-street, or only to the alley, leading from Alabama-street to New-York Wharf. That on this point the parties differed, and the jury, therefore, were to draw their own conclusions from the facts; if they supposed the representation extended to Water-street, then they were to determine whether the buildings on that street were so contiguous to the property insured, as to affect the risk.</p> <p>The jury found ¿ verdict for the plaintiff, under an arrangement between the parties, that the defendants should have leave to make a case, and turn the same into a bill of exceptions on the points of law raised at the trial.</p>

<p>Mr. D. Lord, in behalf of the defendant in this cause, read a petition for its removal into the Circuit Court of the United States, upon the ground that the defendant was a citizen of another state. As there had been considerable delay in the application, he read affidavits showing that it had been occasioned by the indisposition of the defendant’s counsel.</p>