MEw-YQRK, his, the captain's knowledge and consent; infifting he stood &: in the relation of agent for the confignee, but the testimony Heyl was rejected. This also was saved by the plaintiff's counsel. Bür The defendant read a deposition of a clerk in the countinghouse of Roget, stating, that he was on the wharf at the foot of Rector-street, when the plaintiff and feveral other persons 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 defendant. The plaintiff then offered to give in evidence a deposition, duly taken, made by the mate, to prove plaintiff's interest in the logs, and Roget’s confent to the felling the logs in question to the plaintiff, and which was infifted upon as proper testimony, there being no evidence of the mate having warranted the logs to the plaintiff, as his property: but the Judge was of opinion that fuch testimony was inadmiffible, unless the mate was released by plaintiff, which opinion was saved by the plaintiff’s counsel. The plaintiff then produced a release; and the witness to its execution being called upon to prove it, testified, that he was prefent at the time the deposition 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 deposition 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 testimony, as proven on part of the plaintiff; and a confent was fubscribed to fuch examination by defendant's attorney, as follows: “We, the fubscribers, attornies for the plaintiff and defendant refpectively, do confent, that the above deposition be


read in evidence upon the trial of this cause ; saving and re-
ferving the exceptions to the admiffibility of the testimony.”
Under these circumstances, the counsel for plaintiff moved,
that the deposition ought to be read in evidence; but it was
rejected. This point was also reserved by plaintiff. -
The judge charged, that it was absolutely neceffary" the
plaintiff should shew an acquiescence on the part of Roget, to
the sale by the mate; and that the confent of the captain, or
his ads, and that of the mate, were not binding without fuch
The jury found a verdict for defendant.
The plaintiff now moved to set afide the verdict for misdi-
retion in the judge, both in his charge, and rejection of pro-
per testimony; and for a new trial to be granted.
Woods. A release to Bonfall, the mate and vender of the
plaintiff was totally unneceffary: the court ought not to have
asked it, as he was competent, being equally liable, howsoever
the cause was determined: first, to Roget the confignee, and
allo to the plaintiff, as purchaser. Peake, Law of Evid. 113.t
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
“person for the premises. 2 Roll. Abr. 685. But a vendor,
"who does not covenant for the title, or enter into any war-
"ranty, is a good witness. Busby v. Greenslate, 1 Stra.
"445." But if the court should be of opinion a release was
nettiary, such a release was given and offered. The circum-
fiance of its being after the examination, is immaterial, from

the peculiar facts stated in the cafe. If Roget, the confignee, I

was competent, being released by the defendant, Bonfall, the Wendor, was as much fo, on a release from the plaintiff Beide, the declarations and admiflions of the captain were full evidence for the plaintiff. He was the agent of the confignee; and, as in that capacity he confented to the fale to the plaintiff, it bound Roget, and confirmed the fale by Bonfall: the

"Hi Honour, real charge was, as the reporter is from high authority informed, # no means of the very positive kind flated by the cafe; but qualified with realings on the nature of the action, the circumstances of the cafe, &c, and after "g the evidence given, and pointing out to the jury how the law was, accord''g'' the testimony hould be believed, his Honour left to them to determine on it weight,


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72. § The reafon of these determinations is, that with respect to purchases of lands, the maxim of “caveat emptor"applies: in £ tel interests, it does not. Money had and received, will not ie to recover back the confideration paid for an affignment of a , mortgage, which turns out to be a forgery, if bona fide transferred, and the affignor has not covenanted for the goodnets of the title. Bree v. Hobbech, Doug. 655.

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rejecting, therefore, these declarations and admifions, was
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 but of that poffeffion ; for it was as much con-
tinued while the logs lay at White-Hall, as if in the plain-
tiff’s yard; having been left there by him.
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,
and Roget is liable to him, not the maté," for he is liable
only to the purchaser, the plaintiff, and therefore liable to
only one of the parties in the cause. Therefore, admitting
the principle of equal liability, (which he did) it did not apply; .
as to the release being given after the deposition offered, the
testimony was properly rejected. The reason why a release
is neceflary, is to do away the effect of the influence of interest;
but if it be given after the testimony, the interest has already
had its effect. The declarations and admiffions of the cap-
tain 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 sale 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 war-
ranty, in fales of chattels it was not neceflary.
Radcliff J. I understood the mate's claim to be founded
on his office, as a privilege annexed.
Woods in reply, infifted on his first positions.
Per curiam. The facts of this cafe arise merely from the de-
positions of witnefes submitted to the court. From these it
appears, that the plaintiff purchased of one Bonsall, the mate
of a veffel, three logs of mahogany; that at this time, the
captain and confignee were prefent, as is stated by the wit-
nefies of the plaintiff. On the cafe, as presented to us, there
is fome degree of contradiction in the testimony, which, as it
was laid before the jury, they, no doubt, duly estimated. In
this action, property and poffeffion must be shewn. The on-
ly evidence of this property and poffeffion is from the testi-
mony of Mackworth and Smith. They state, that the price
contracted for between Bonfall and the plaintiff, was one hun-
dred dollars; and Smith, as a reafon for a gross fum being


agreed upon, adds, “that it was to save the trouble of having the mahogany measured.” Marshall, the public measurer, deposes, that he did measure the whole cargo, and that the mate fold them after they were fo measured. That, at the mate's request, the charge of measuring was debited to Roget, the configuee, 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 settle for it with Roget. After this testimony is delivered, Smith recollects that the mahogany had been measured, and that he fiw the measurer's marks on the logs; though before that, he affigns its non-measurement as a fpecific reafon for a gross 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 these 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 testimony; or at least, prevented the jury from weighing it: for, the judge charged that it was meteffary to shew an acquiescence in Roget. But it must be presumed to have been underftood by the jury, that Roget's acquiescence was neceffary for Heyl to shew property in himself; and, on this point, we think, that the mate, Bonsall, must have shewn property, as the confignment was to Roget entirely. The testimony of Smith was very properly discredited, and the verdict ought to ftand. The releast of Bonsall, being after his examination, and when the interest he had, must have had its full influence and operation on histestimony, came too late, and could not be received,

Jackson on the demise of John Jauncey, against
Martinus Cooper and James Styles.

THIS was an action of ejectment, in which the defendants kvered in their appearances, and entered into feparate consent rules. The plaintiff, on motion, obtained leave to amend by altering the name of the leñor of the plaintiff from John to

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William Jauncey; but the notices on which the motion was founded were entitled as above, against both defendants. Benson now meved to set afide the proceedings for irregularity, contending, that as the defendants had fevered, the original suit became divided into two distinct causes. That therefore there should have been two feparate notices, each entitled against one defendant, and ferved on the different attornies of

the defendants. For there was not then any suit in existence

fuch as that in which the notices purported to be given.

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 distinct proceedings, and ought to have been entered and entitled as separate; that is, that the notices should have been separate, addrested 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 served. It does not follow, that appearing separately, and entering into feparate consent rules, justifies or requires a different practice: for pleading separately does not make feparate fuits. The notice must be as the cause was originally entitled, and a copy ferved on all the attornies: for otherwise it would imply a distinct iflue in each fuit.

Motion refused with costs to the plaintiff.

Bell and others against Rhinelander.

IN partition only the notice and affidavit of service is read, not the petition.

Jackson ex dem. Nicholas Low and ors. against
James Reynolds.

ON an affidavit stating the death of one of the leflors of

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