NEW-YORK, his, the captain's knowledge and confent; infifting he stood May 1803. in the relation of agent for the confignee; but the teftimony was rejected. This alfo was faved by the plaintiff's counfel. Heyl V. Burling. The defendant read a deposition of a clerk in the countinghoufe of Roget, stating, that he was on the wharf at the foot of Rector-street, when the plaintiff and several other perfons were removing three logs of mahogany, No. 21, 50 and 52, which the witness forbade, informing them Roget had fold the logs to the defendant; that, witness knew the whole cargo comprising the three logs above mentioned, were configned to Roget, who has accounted for the fame to the confignor; and that the whole were fold to, and paid for by the defend ant. The plaintiff then offered to give in evidence a depofition, duly taken, made by the mate, to prove plaintiff's interest in the logs, and Roget's confent to the felling the logs in queftion to the plaintiff, and which was infifted upon as proper teftimony, there being no evidence of the mate having warranted the logs to the plaintiff, as his property: but the Judge was of opinion that such teftimony was inadmiffible, unless the mate was released by plaintiff; which opinion was faved by the plaintiff's counfel. The plaintiff then produced a release; and the witnefs to its execution being called upon to prove it, teftified, that he was present at the time the depofition was taken, and on his return to his office, being an attorney, and acting in behalf of the attorney for the plaintiff, fearful left an objection might be taken to the interest of the witness, he drew a release, and the fame was executed by the plaintiff, and delivered to the mate in his office, who left it with witness, for the purpose of being used on the trial. That this was done in the course of half an hour after the depofition was taken; and before the plaintiff, witness and mate had separated, after they had left the place of examination. That the defendant's attorney crossexamined the mate, and fuch cross-examination was in writing, at the end of the mate's teftimony, as proven on part of the plaintiff; and a confent was subscribed to fuch examination by defendant's attorney, as follows: "We, the fubfcribers, attornies for the plaintiff and defendant refpectively, do confent, that the above depofition be May 1803, read in evidence upon the trial of this caufe; faving and re- NEW-YORK, ferving the exceptions to the admiffibility of the testimony." Under these circumftances, the counfel for plaintiff moved, that the depofition ought to be read in evidence; but it was rejected. This point was also reserved by plaintiff. The judge charged, that it was abfolutely neceffary* the plaintiff fhould fhew an acquiefcence on the part of Roget, to the fale by the mate; and that the confent of the captain, or his acts, and that of the mate, were not binding without fuch acquiefcence. The jury found a verdict for defendant. The plaintiff now moved to fet afide the verdict for mifdirection in the judge, both in his charge, and rejection of proper teftimony; and for a new trial to be granted. Heyl V. Burling. + It is fuppofed Evans v. Wilalluded to. 7 D. E. 481, n. (c.) liams, is the cafe & The old cafes make a diftinction between fales of chattels in poffeffion and out of poffeffion. That in the first inftance, an exprefs warranty is not neceffary; in the fecond, it Stoughton, I Salk. $72. But denied to be Freeman, 3 D. & E. 57, 58. See is. Medina v. this has been law. Pafley v. I Lex Mer. Am. 372. $The reason of nations is, that thefe determi purchases of Woods. A release to Bonfall, the mate and vender of the plaintiff was totally unneceffary: the court ought not to have afked it, as he was competent, being equally liable, howfoever the cause was determined: firft, to Roget the confignee, and alfo to the plaintiff, as purchafer. Peake, Law of Evid. 113. And peculiarly fo, as Bonfall had fold without any warranty; and therefore, had never afferted any interest in himself. Peake 118. "If a vendor of an estate covenant for the title, or warrant the premises, he cannot be a witness to fupport "the title of the vendee, in an action against him by a third perfon for the premises. 2 Roll. Abr. 685. But a vendor, with refpect to "who does not covenant for the title, or enter into any war- lands, the max"ranty, is a good witness. Bufby v. Greenflate, 1 Stra. im of« emptor" applica: '445."§ But if the court should be of opinion a release was in thofe of chatneceffary, fuch a release was given and offered. The circum- to interes, it tel ftance of its being after the examination, is immaterial, from ney had and rethe peculiar facts ftated in the cafe. If Roget, the confignee, ceived, will not was competent, being released by the defendant, Bonfall, the back the confivendor, was as much fo, on a release from the plaintiff. Be- deration paid for an alignment of fides, the declarations and admiffions of the captain were full a mortgage, evidence for the plaintiff. He was the agent of the confignee; to be a forgery, and, as in that capacity he confented to the fale to the plain- if bona fide tiff, it bound Roget, and confirmed the fale by Bonfall: the the affignor has cavcat does not. Mo lie to recover which turns out transferred, and not covenanted * His Honour's real charge was, as the reporter is from high authority informed, for the goodnets by no means of the very pofitive kind flated by the cafe; but qualified with rea of the title. fonings on the nature of the action, the circumftances of the cafe, &c. and after Bree v. Hobftating the evidence given, and pointing out to the jury how the law was, accord- bech, Doug.655. ing as the teftimony fhould be believed, his Honour left to Gem to determine on its weight. D Heyl V. NEW-YORK, rejecting, therefore, these declarations and admiffions, was May 1803. contrary to law. From the facts it appears, the plaintiff had peaceable poffeffion under a good title; and at all events, his poffeffion alone was enough to prevent the defendant from taking the logs out of that poffeffion; for it was as much continued while the logs lay at White-Hall, as if in the plaintiff's yard; having been left there by him. Burling. But fee 2 Ch. ple is, that the the partics in a remote, circu itous liability. Boyd for the defendant. There is not an equal liability in Bonfall. He is not liable to the defendant; for there is no privity between them. The defendant purchased of Roget, The princi- and Roget is liable to him, not the mate; for he is liable liability must be only to the purchaser, the plaintiff; and therefore liable to immediate, to only one of the parties in the caufe. Therefore, admitting the fuit, and not the principle of equal liability, (which he did) it did not apply; as to the release being given after the depofition offered, the teftimony was properly rejected. The reason why a release is neceffary, is to do away the effect of the influence of intereft; but if it be given after the teftimony, the intereft has already had its effect. The declarations and admiffions of the captain could not be received; for he is not the agent of the confignee, and his agency terminates on delivery; which had here taken place, and a fale been made to the defendant. He denied, therefore the poffeffion of the plaintiff; as it had been transferred by the confignee to Burling; and as to the warranty, in fales of chattels it was not neceffary. Ball v. Boft wick, 1 Stra. 575 Radcliff J. I understood the mate's claim to be founded on his office, as a privilege annexed. Woods in reply, insisted on his first positions. Per curiam. The facts of this cafe arise merely from the depofitions of witneffes fubmitted to the court. From these it appears, that the plaintiff purchased of one Bonfall, the mate of a veffel, three logs of mahogany; that at this time, the captain and confignee were prefent, as is ftated by the witneffes of the plaintiff. On the cafe, as prefented to us, there is fome degree of contradiction in the teftimony, which, as it was laid before the jury, they, no doubt, duly estimated. In this action, property and poffeffion must be fhewn. The only evidence of this property and poffeffion is from the teftimony of Mackworth and Smith. They ftate, that the price contracted for between Bonfall and the plaintiff, was one hundred dollars; and Smith, as a reason for a grofs fum being May 1803. Heyl V. Burling. agreed upon, adds, "that it was to fave the trouble of having NEW-YORK, the mahogany measured." Marshall, the public measurer, depofes, that he did measure the whole cargo, and that the mate fold them after they were so measured. That, at the mate's request, the charge of measuring was debited to Roget, the confignee, who paid for it; and that the mate himself acknowledged he did not own any three particular logs, but that he had a right to make choice of three, and would fettle for it with Roget. After this teftimony is delivered, Smith recollects that the mahogany had been measured, and that he faw the measurer's' marks on the logs; though before that, he affigns its non-measurement as a specific reafon for a grofs price of one hundred dollars being agreed as the purchase money. After this, a release being produced from Burling, the defendant, Roget, the confignee, was admitted very properly as a witness, and he is followed by his clerk. Under thefe circumstances, it must be taken for granted, that the jury weighed Smith's credibility; and if fo, there could be no doubt that there was neither property nor poffeffion in the plaintiff. It is urged as a reason for a new trial, that the judge's charge precluded certain teftimony; or at least, prevented the jury from weighing it: for, the judge charged that it was neceffary to fhew an acquiefcence in Roget. But it must be prefumed to have been understood by the jury, that Roget's acquiefcence was neceffary for Heyl to fhew property in himself; and, on this point, we think, that the mate, Bonfall, must have shewn property, as the confignment was to Roget entirely. The teftimony of Smith was very properly difcredited, and the verdict ought to stand. The releafe of Bonfall, being after his examination, and when the interest he had, muft have had its full influence and operation on his teftimony, came too late, and could not be received, Jackson on the demife of John Jauncey, against THIS was an action of ejectment, in which the defendants la ejement against feveral fevered in their appearances, and entered into feparate confent defendants, tho rules. The plaintiff, on motion, obtained leave to amend by their pleadings. altering the name of the leffor of the plaintiff from John to and citer into NEW-YORK, William Jauncey; but the notices on which the motion was founded were entitled as above, against both defendants. May 1803. Jackson V. Cooper & anor. Benfon now moved to fet afide the proceedings for irregularity, contending, that as the defendants had fevered, the original fuit became divided into two diftinct causes. That therefeparate confent fore there fhould have been two feparate notices, each entitled rules, the notices against one defendant, and ferved on the different attornies of must be entitled the defendants. For there was not then any fuit in existence against all, as at fuch as that in which the notices purported to be given. and pleadings the commence ment, but each party must be ferved with a separate notice, &c. Partition. Hopkins contra for the plaintiff, infifted the notice was perfectly regular, and likened it to the case of a fuit against two, where one is outlawed, yet the proceedings are entitled against both. Per curiam. The objection taken against the notices and rules is, that as the defendants appeared by distinct attornies, and entered into separate confent rules, these circumstances required feparate and diftinct proceedings, and ought to have been entered and entitled as separate; that is, that the notices fhould have been separate, addreffed to each party, and the rules entered accordingly. The notice given to Van Schaick, attorney for Cooper, is entitled against two: and it is on that notice the application is made. The court are of opinion that this is the regular way in which the notice should be entitled, though each party should be ferved. It does not follow, that appearing separately, and entering into separate confent rules, juftifies or requires a different practice: for pleading feparately does not make feparate fuits. The notice muft be as the caufe was originally entitled, and a copy served on all the attornies; for otherwife it would imply a distinct iffue in each fuit. Motion refufed with cofts to the plaintiff. Bell and others against Rhinelander. IN partition only the notice and affidavit of fervice is read, not the petition. Jackfon ex dem. Nicholas Low and ors. against ON an affidavit stating the death of one of the leffors of |