NEW-YORK, Callagan & al. v. Hallett & Cro. Ja. 103. 3d. May not the court order an enquiry de novo on the third count in the event of the first and second being held bad? The question of the right of the master to bind owners, it is not neceffary to decide. The legality of the contract is most material. The act for the regulation of pilots and pilotage for the port of New-York ( 7 feff. ch. 31. f. 2 & 3.) makes it the duty of pilots to give all the aid and affiftance in their power to any veffel appearing in diftrefs on the coaft, and for neglect or refufal fubjects them to a fine or forfeiture of their places; but for the encouragement of such pilots who fhall distinguish themselves by their activity and readiness to aid veffels in diftrefs, it enacts, that the master or owner of fuch veffel fhall pay to fuch pilot, who shall have exerted himself for the prefervation of fuch veffel, fuch fum for extra fervices as the master or owner and fuch pilot can agree upon; and in case no fuch agreement can be made, the master and wardens of the port are empowered to ascertain the reasonable reward. It being made the duty of the pilots to affift the defendants' veffel, it was oppreffion in them to exact the stipulation in queftion. It would lead to abuses of the most serious nature if fuch contracts founded on fuch confiderations were held to be legal. There are feveral cafes in the books tending to fhew the leaning of courts of justice against the oppreffions Bridge & Cafe. of perfons in public truft, and the illegality of exacting previous reward for doing their duty. The law allows them fufficient compenfation for extraordinary exertion after the fervice performed; which fhews it was an object with the Legiflature to prevent undue advantages being taken. therefore of opinion the first and fecond counts are contrary to public policy and the fpirit of the act. the fecond question, whether it be too late to move in arrest of judgment after attending the execution of the writ of enquiry, we are of opinion the authorities adduced do not apply to questions on the merits, but only to formal defects in the pleadings. 1 Sell. 528. 2 Wils. 380. We are bad, as As to On the third point we are of opinion, on the authority of Eddowes v. Hopkins in Douglas, that the plaintiff may, on payment of cofts, have (if he folicits it) an enquiry de novo on the quan. meruit, referving the queftion however, whether on fuch inqueft he fhall be entitled to more than his legal allowance, not having made the prescribed appeal to the NEW-YORK, mafter and wardens. Daniel Allen against Mofes Brace. ASSUMPSIT on a promiffory note. May 1803. Daniel Allen V. Mofes Brace, Venue changed it, in an action on a promiffory The affidavit of the defendant stated fraud in obtaining and that his witnesses refided in the county to which it was note. then moved to change the venue. Granted without opposition. FINIS. |