« ForrigeFortsett »
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-
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,
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.
rejecting, therefore, these declarations and admifions, was
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
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
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
ON an affidavit stating the death of one of the leflors of