and her timbers examined, none of which were rotten or defective. Williams and Peacock, the ship carpenters who repaired her, admit that some of her planks and timbers. were tainted, which Williams says were mended, and Peacock, that they were replaced with new. In opposition to this, is the testimony of Nicholl and Tropp, ship carpenters, and Potts, a master of a vessel, who' examined her on her return to Honduras, who testify, that two thirds of her timbers were rotten, several of her planks and her bends rotten and started. This testimony is corroborated by that of Mr. Gibson, who is proved to be a merchant of respectability there, and treasurer of the settlement. He professes to know little of a ship, but declares that many of her planks were rotten, and several of her timbers so much so, as to crumble to pieces when struck with a crow-bar. These witnesses may be said to be interested in her condemnation. The fact may be so. But surely such interest was not greater than that of Williams and Peacock, who, probably, had they discovered or disclosed too many defects in her, would have deterred the plaintiff from purchasing, and thus lost the job of repairing her. She does not appear to have met with any weather that could have affected a sound ship; yet, she made o much water that the master was obliged to return into port. And it is a little singular that if this was the effect of any other cause than natural decay, that it was not stated by the master or some one of the mariners. It is true, that in his second protest, he speaks of her having experienced heavy gales and various changes of weather, and yet not a spar is carried away, no butt started, no sheathing torn off. Surely a vessel tight, staunch and strong, could not have been rendered innavigable by gales that did not require the striking of a top-gallant-mast; for we find the top-gallant-masts and yard's standing until the third of February, a day after that on which, by the advice of his crew, he had borne away for a place of safety. He speaks of strong gales on the 28th of January, and yet the top-gallant-sails were not handed until midnight. Where is the evidence then of external injury? There is none. Nothing that looks towards this Kk ALBANY, August 1863. Barnewall V. Church. August 1803. Barnewall V Church. ALBANY, point, except his declaration, that on the survey, the damage of the ship was found to have proceeded from the hard gales, in which they were obliged to carry an unusual pressure of sail, as (says he) is more particularly set forth in the survey: Now the survey says directly the reverse, and corresponds precisely with the depositions of the witnesses on the part of the defendant. Park. 221. I think the testimony will warrant no other conclusion than that she died a natural death. This opinion I found on the fact of no extraordinary peril having been incurred, and on the testimony taken at Honduras, which I think is to be preferred to that taken here; because, those searching for an infirmity, known to exist somewhere, were more likely to discover defects, than these, who gave her a cursory examination for the purpose of recommending her to a purchaser, and of repairing such defects as occasionally fell under their observation. The cases of Lee v. Beach, and of the Mills frigate, were attended with circumstances much more favorable to 2 Marshall 368. the owners than the present case. In the former, the ves sel had been, as was supposed, completely repaired immediately before sailing from the Thames, and was discovered to be unsound before she reached Portsmouth. In the other, the ship had not only been put into dock and repaired, previous to her departure on her outward bound voyage to the West-Indies, but was, while there, again surveyed by six sea captains, and reported to want caulking only, when she would be sufficient to carry a cargo of sugars to London. Yet, in both these cases, were the underwriters discharged on the point of seaworthiness. Practice on removing fuits aaint aliens, into circuit court of the United States. I am of opinion the verdict ought to be set aside and a new trial awarded on payment of costs. Livingston, justice, having been concerned in the cause, gave no opinion. John J. Arjo against Joaquim Monteiro. BY the court. If an alien defendant file his petition, &c. to remove the suit into the circuit court of the United States, at the time of filing special bail, he is in season, though the bail may have been excepted to. ALBANY, Jackson, on the demise of Hogeboom, against Auguft 1803. John Stiles, Austin Griffin, tenant in possession. A TITLE to the premises in question had been awarded to the lessor of the plaintiff by the commissioners appointed to settle disputes to land, in the county of Onondago, and he had served declarations on the tenants, with the usual notices annexed. The declarations however, contained blanks for the towns and counties, which at the time of service, were not filled up, nor were they, in the copies annexed to the affidavits of service, and filed with them, on which the usual rule was entered. The declarations were served on the tenants within the three years allowed by law for prosecuting the titles awarded, but they were now elapsed. Spencer, on these circumstances being disclosed by the affidavit of the plaintiff's lessor, stating also the services having been made with the full intent of carrying into effect the actions instituted, moved for a rule against the tenants, to shew cause, by the first day of next term, why the declarations should not be respectively amended, by the insertion of the names of the towns and counties, and that fixing up the rule in the clerk's office, should be deemed good service. Emmott. Are the tenants to take notice of declarations which are mere nullities, void in themselves, and to which they are not parties? They have not appeared, they are not in court, and John Stiles is the only defendant to the suit, that can be known by the record. Per curiam. Notice having been served on the tenants, it was enough to put them on enquiry. There is time enough for them to come in if they please. Take the effect your motion. of Cole against Stafford. IN this cause the exoneration of bail, whose principal had been relieved under the insolvent law, was opposed on the ground of the discharge not having been duly stamped according to the act then in force. Jackfon V. Stiles. After service of ejectment on a declaration in a tenant, though it may be a totally in formal one, it is fufficient to fet him on en quiry, and if a caufe why the plaintiff should not amend be rule to fhew granted, affix- which a title is awarded by sioners for settling difputes the commis to lands in within three Onondago, years after, it is sufficient, though they may be faulty, and require amendment after the three years, to entitle the plaintiff to proceed. The want of a ftamp to an infolvent's dif charge cannot reafon to fhew it not duly ob tained and pre vent the exoneration of his bail. Fraud only can affect it. ALBANY, Auguft 1803. Cole V. Stafford. A motion can not be made to fet afide a writ of inquiry, in the possession of the plaintiff, not returned, and on which no inquifition has been taken, but if a jury has been empannelled under it, and has given a verdict Per curiam. We cannot go into it; the act makes the discharge conclusive except in cases of fraud; the matter. was before the court below, and they were the proper judges whether every thing was regular or not. Garrit Abeel against Wolcott, who is impleaded with Van Norden. VAN VECTEN, on behalf of the plaintiff, moved that the writ of inquiry, and proceedings stated in the affidavit on which he applied, should be set aside, and a writ of inquiry issue de novo. The affidavit set forth, that by an agreement in writing entered into between the attornies of the parties, it was stipulated that on the execution of the writ of inquiry, every defence which could have been made, had a trial taken place, should be availed of, that both sides should have the same liberty of excepting to the admissibility of evidence, reduce their objections to writing and make a case in the same manner as if the cause had been heard at the circuit. That the evidence of each party having been gone contrary to the through and closed, the attorney for the 'plaintiff went home, after which the jury called in the defendant Wolcott's attorney, and asked him if a verdict should go against WolIssue a writ of cot, whether he could recover his proportion against Van Norden? and whether, if it sholud be against the plaintiff, he could carry it before the supreme court? To the first of which questions, Wolcott's attorney answered no; to the latter, yes; in consequence of which a verdict was rendered against the plaintiff, but the writ has never been returned, but has been handed to the plaintiff's attorney, without any inquisition annexed. on a hearing terms of a written agree. ment, the court will give leave to inquiry de DOVO, and Per curiam. The application is to set aside a writ of inquiry, when there is none before the court. There is no return, no inquisition, and nothing to set aside. There was a written agreement, which does not appear to have been complied with. The plaintiff is in possession of his own writ of enquiry, and we see no objection to his issuing a new one, for as the writ is not before us, we cannot grant him the effect of his motion as to setting it aside. ALBANY, Jackson on the demise of Finch and others, against August 1803. Johannis Kough. DECLARATIONS had been served in these causes acarly six years ago. Van Vecten moved to amend by inserting several demises from different lessors. Jackson V. Kough. After six years service ofdecla Metcalf opposed it on the ground that it might vary the rations in etenant's defence. jectment, court will on terms give leave to Van Vecten observed, that in the Warren-Bush cases, amend by adding new dethe same thing had been done. If the defendant relin- mises." quish his defence, then all the costs heretofore incurred are to be paid; if he abide by it, then there is no injury done. The costs in the first case must be paid up to the day. This the plaintiff is willing to do, and accept any plea so that the cause might be brought on at the next cir cuit. Per curiam. Amend on those terms. Wilhelmus Van Der Mark against James Jackson on the demise of Ostrander. The defendant IN error. Judgment having been entered in the Court in error cannot of Common Pleas for the county of Ulster on a verdict plaintiff's writ non pross the before it is re for the now defendants, the present plaintiff brought his turned. The defendant, without any service of a scire facias quare executionem non, and, without giving any rule to assign errors, nonprossed the plaintiffs writ, before it had been returned and filed, served him with a copy of a bill of costs, and sued out a writ of possession. Gardiner, on affidavit of these facts, moved to set aside. the judgment of nonpros for irregularity, and that if any writ of possession had been issued, a writ of re-restitution be awarded. |