« ForrigeFortsett »
oath of.office, for which an indictment for penury will NEW- York,
„ ,. r J J Nov. igoi.
not lie. \——, — .L/
We are of opinion, that the objection to the first and se- HoPkin» cond counts, is well taken. Swearing to a lie does not Beedie. necessarily imply that the party has, in judgment of law,'
perjured himself. It may mean, that he has sworn to a lalshood, without being conscious at the time that it was afalshood. Actionable words, are those that convey the charge of perjury in a clear unequivocal manner,' and which admit of no uncertainty. The charge is defective in not stating any court, or competent officer, before whom the plaintiff swore. It may mean extrajudicial swearing, c„m. Di.tit and therefore it is held that a charge that one is foresworn, actio? °° the is not actionable; because it shall not be intended in a case mation, F. swhere perjury may be committed. On the other hand, a charge that one is perjured, is actionable, for that implies i Roll. Abr. the direct legal crime.
With respect to the third count, we are of opinion, that it is sufficient to sustain an action; but as the verdict is general, the judgment must be arrested; the plaintiff, however, on application, might have been entitled to a venire de novo, 011 payment of costs.*
Christopher Miller against John R. Livingston.
THIS was an action of assumpsit brought by the plain- mi^„r8ea'e0TM*
tiff, as the factor of the defendant, for the amount of his lo»«t to a captain on his sales commissions on selling a quantity of leather. and invest
orTM. • 1 1 <• 1. I. T • T7- ments,this will
ine cause was tried belore his Honor Justice Kent, not entitle to at the New-York Circuit in March 1801, when the follow- ne^arrics^* Jng facts were given in evidence. feliv,cr accor,J
^L ° lng to a '.on
Thatin January 1795, the plaintiff sailed, in the cha-V3",arte;<:"
_ J' r ' dentlymadcby
racter of master and supercargo of the ship Somerset, his employer, belonging to the defendant, on a voyage from New-York he doe» not Veto Bordeaux, in France. The vessel was laden with a Copiei'oficN'' very valuable carpro, consistinjr of a variety of articles, ter**;c ,re
. . . .' muinmg in a fo
oesides a quantity of leather, which the defendant had, r«sn 'Wt of
in o 1 • ■ 'i_ • 11 • adniiraitv, and
'" an engagement entered into between him and the mi- duly uurh^miNNov Tbo**"' n'3ter °f the French Republic in the United States, agreed
cateel under .Anger v. Wilkini, Jiurncs 478. Smith v. Haward, ib. 4?.o. S. P. Sopr. Bui- the seal of the <t J.iii Eddowe»T. liopkina, Ooug- 377. See alto Grant Y. AsUe, Doug. 7a j. court, xvb.ee re
V—^-v-'w' to deliver to the French government. By the terms of
'T. the contract, the leather was to be paid for on delivery,
.Livingston. anj j£ not> ^ mniister bound himself that it should be
the defendant says, " If you find that you can not get New-york, "your money for the leather, agreeable to contract, and v^L^!^/ "you can sell at near the price, it will be best so to do." Miller
In the transaction of the ship's business at Bordeaux, Livingtton.
the plaintiff employed under him the house of Barton,
Casson & Barton, at a commission of 2 1-2 per cent, out of the commission of 5 per cent allowed him by the defendant; but they charged no commission on the leather.
It appeared also in evidence, that the whole amount on which a commission was charged, was 859,415 ; that the captain's wages were only #30 per month, though masters for such voyages, usually then received g 50 a month; and that the plaintiff had signed a receipt in full, at thefoot of an account in which commissions lor the leather had been charged, for the balance claimed by him from the defendant, after deducting the commissions now d«- ,
raanded; but the words "in full," were written, with a line drawn through them.
Under these circumstances, the jury found for the plaintiff the amount of the commissions claimed by him, being 2 1-2 per cent on the invoice cost of the leather delivered, subject to the opinion of the court, whether he was entitled to any commissions, and at what rate? according to which, die verdict was either to stand or be diminished, but if the court should determine that no commissions were due, then judgment to be entered for the defendant.
Hamilton for the plaintiff. The principal question is, whether the plaintiff is entitled to a commission on the. leather? There is another supplementary point, as to the admissibility of the evidence of the admiralty proceedings, from whence we derive the testimony of the defendant's letter. The right to the commission, will depend on the construction of the defendant's letter. By that, the cargo is consigned to him. There is a litde apparent ambiguity relating to the two and a half per cent, whether to be taken on the sales and investments distributively or topulatively. But on this, there is no actual dillerence of opinion, for the counsel on the qther'side agreed to the NEW-YORK, distributive acceptation of the words, with this only ex
Nov. 1803. * * »
\^^.^*Ls ception, of bills and money. The dispute now, is as to M^ller the leather. On the latter there can be no doubt. The Liringnton- circumstances of the case, shew there can not be a differ— ent construction. The plaintiff was consignee of the whole cargo. The.mere being a consignee, according to mercantile law, entitles to commissions: for commission is incident to consignment. He was to have a commission on the sales. The leather was only contracted for here. That contract, and the sale in consequence of it, was both consummated by the delivery, which the plaintiff had to perform. All writers distinguish contracts from .sales. The latter are perfected only by payment, or delivery; and this last the plaintiff had to perform, under a load of discretionary power, which he had to exercise, in weighing or delivering, as circumstances might require: besides, he had an alternative power to sell, or deliver: he was therefore agent and consignee. The defendant, it is understood, relies on the contract and sale of the leather being here; therefore, being the effect of his own labor and exertions, that the plaintiff, in this respect, was a mere captain, and can not claim any commission. This has been already confuted; the trouble the pbintid was to have, is stated in the letter of the defendant, and it i» not presumable that he was to have it for nothing; especially as his situation charged him with a responsibility, which the court can never suppose to be gratuitously undertaken, as general consignee of the whole cargo, commission on all must be implied. On the admissibility of the proceedings, the court will observe, that papers often gain - respect in consequence of the situation where found. Old papers with wills, &c. are not accredited merely from their antiquity. There can be no doubt that sentence* in the Admiralty, for the purpose of establishing any fact they contain, and all the proceedings incident, are prima facie evidence. The question now is, whether proceedings relating to the subject of controversy, shall be received, when that subject was not the matter before the court there: If decided against the plaintiff, it will only turn him round to a court of equity, which the court certainly ^not'th^** will not do. The objection to the admission is the want of proof of the hand-writing of the defendant—The court will remember there has been a notice to produce the original ; that the letter in question has every circumstanoe to make it believed a fair and regular document, it was the guide of the plaintiff's conduct, and has been forcibly taken from him; it was against his consent, and without his concurrence that it was placed in the archives of the court of Admiralty, where it is irrevocably fixed, from whence it can never be removed: It is adduced only as prima facie evidence, therefore the defendant was at liberty to rebut its contents. In our own courts a copy thus authenticated, would be good evidence, and the almost impossibility of sending a person to authenticate by irnspection, is an argument, from the excessive inconvenience, why the evidence should be received. No one can disbelieve-the fact. The only difficulty is the technical one, of establishing the hand-writing; but in the present case, rhe document ought, abstracted from the rule of law, to have its weight.
Hoffman and E. Livingston, contra. First, as to the admissibility of the testimony—the court must depart from every rule, before they can be inclined to admit it. Suppose the letter itself had come into court, and been produced, would that have been enough, to have it read before a jury? Must not the hand-writing, the execution as it might be called, have been first established? Waving, therefore, technical reasoning, shall a letter read in the court of Admiralty, and made an exhibit there, become in this circuitous mode, evidence here, where the letter itself, the very exhibit would not be testimony? A plaintiff cannot, by merely producing a paper, make it evidence for him. But the argument is, that if he will first exhibit it, in a foreign court of Admiralty, the copy shall be better than the original. The difficulties and inconvenicncies, arise, as they ever will, in consequence of departing from established rules, and is not an admissible argument. The law points out a mode, a bill in equity—In the admi