NEW-YORK, Jackson V. Bowen. On the part of the plaintiff it appeared, that part of the Nov. 1803. premises in question, adjoining the road, were unimproved at the expiration of the war. It also appeared, that about 6 or 7 years ago, the lessors of the plaintiff claimed the premises, by threatening to dispossess one Peter Lawrence, who afterwards took a lease under them. But Lawrence had the possession from Jacob Rees, who held under Abraham Conyne, who it appears had hired it from the defendant. The partition deed between the ancestors of the parties bears date, in the year 1765, wherein lot No. 1, claimed by the lessors of the plaintiff, is described as beginning at the Mohawk river, and running a northerly course 36 chains, describing no monument at the termination of this line. It appears from the testimony of the surveyor, that to extend this line northerly the number of chains given in the deed, and then pursue the other given courses, would include part of the premises in question. But the testimony on the part of the defendant appears to me to be strong and irresistible, with respect to the actual possession for a long series of years; and that in fact, no possession was ever had of the premises by the lessors of the plaintiff, or their father, under that deed. And that admitting the deed to cover the Jand, still the plaintiffs, and those under whom they claim, have abandoned it, for such a length of time as to preclude them from a recovery, at least in this form of action. It is true, a man may be mistaken with respect to his title, and perhaps ought not to be concluded by his confession, if made under circumstances inducing a suspicion of impoșition or ignorance, neither of which appears in this circumstance, and when acquiesced in for the length of time, as in the present case, he ought to be concluded. It appears that the premises lay north of, and adjoining to the highway, which is the division line between the parties, according to their present possessions: the lands of the plaintiff laying to the south, and those of the defendant to the north of this road. Two witnesses on the part of the defendant, testify that as much as 36 years ago, which must have been very shortly after the partition, Mary Bowen was in possession Nov. 1803. Jackson V. Bowen. of the premises; the possession of Johannes Putnam going NEW-YORK, no farther north than the highway; and it appears by the testimony of one witness, that as far back as the period above mentioned, Johannes Putnam shewed him the line between him and his sister Mary, and declared to him that his land went no farther north, than to the road; that the land north of the road was his sister Mary's: the same declaration was made to another witness about 14 or 15 years ago, and since the death of Johannes Putnam, the lessors of the plaintiff have repeatedly recognized the same line, both by their declarations and acts, and never shewed any dissatisfaction until about 6 or 7 years ago. Thus, I think it is clear and conclusive from the testimony, that the defendant, and Mary Bowen his mother, under whom he claims, have been in possession of the premises for at least 36 years, claiming them and using them as their own, adversely to any other claim, and with such repeated recognitions by the lessors of the plaintiff, and their father, of the right of Mary Bowen, as to shew conclusively that they disclaimed having any right or title to the premises, which is sufficient to rebut every presumption that Mary Bowen held under them. The premises being held under such circumstances, for such a length of time, is, I think, sufficient to protect the proposition against this action. I am of opinion therefore, that the verdict is against evidence, and that a new trial ought to be granted. Being in favor of a new trial, it would be unnecessary for me to give an opinion on the other question, did I entertain the least doubt on the subject. The plaintiff's deed gives 36 chains on the first line; the defendant contended it ought only to have been 29 chains, and the testimony offered and overruled, was to prove that fact: this was not to explain any ambiguity, but was directly contradictory to the deed, and manifestly inadmissible. Henry Peyton against Richard S. Hallett. The same against John Delafield. THESE were actions on two policies of insurance, one on the body, the other on the cargo of the sloop Ruby, A warranty of being "the property of an A NEW-YORK Peyton V. Hallett. The same V. Delafield. on a voyage from Charleston to the Mantanzas, in Cuba, warranted the property of an American citizen. On the voyage, the vessel was carried into New-Providence, where she, on the 9th of December, 1801, was acquitted, but her cargo condemned as lawful prize. The abandonments were made the 7th of January, 1802. The defendants having no defence, put the plaintiff to his proofs.* zen," is proved by reputation, To shew his interest, one George White was called, who employ, and domicil. Inte- was objected to by the defendant's counsel as incompe rest in a vessel, by a person tent, on account of an interest in the event of the suits. merican citi who saw the original register, It appeared that White, who was sworn on his voir dire, in the name of had received, for a debt due to him from the plaintiff, an the owner, about to sail on sured. Interest and seeing when she was order on his agent, to be paid out of the sums to be re the voyage in- covered in these actions, but the agent had not accepted in a cargo, by the order, though he promised the debt should be paid knowing the articles bought out of them, and the witness expected to be paid accordby the plaintiff, ingly. White, however, further swore, that as his right did not depend on the event of the suit, he should look to ness who has Peyton for payment, whether he recovered or not. On paid out of the this, his testimony was admitted, and the plaintiff went sum to be reco- on to prove his interest in the vessel, by the evidence of White, which was again opposed, but overruled. them go on board: a wit an order to be, vered in a suit, drawn upon the agent who is to receive accepted, Whitet hen testified that he had seen a register of the ves such sum, is not a competent sel, in the name of the plaintiff, and that she sailed under it. witness, though the order is not on the voyage insured. In corroboration of this, the pro ceedings in the vice-admiralty, under seal of the court, were produced, setting forth a copy of the register in due form. It also recited a bill of lading, in which freight was mentioned to be payable in the following manner: as customary no. primage and average accustomed.” The interest in the cargo was established by the same witness, who swore to having attended the plaintiff to se lect the articles purchased, some of which he saw on the wharf where the vessel lay, and going on board. The counsel for the plaintiff, as additional proof, adduced bills of parcels of the articles specified in the invoice, and made That is, when an underwriter does not know why he should not pay, he puts the insured to evincing legally why he should. If on the trial, the claim be not made out according to the precision of law, the assurer gets discharged, be cause the plaintiff did not make out his case. out by the vendors, whose hand-writing he offered to prove; but this latter testimony was rejected.* NEW-YORK, Peyton V. Hallett. The same against Delafield. v. Boheme, 2 No other reason than the capture was offered for the non-production of the vessel's register and bill of lading. To substantiate the citizenship of Peyton, a copy of a record of his naturalization was offered, which being objected to as informal, was withdrawn; and the counsel for See Russel the plaintiff then relied on the testimony of White, who stra. 1127. conswore that he had known Peyton to have resided in Charles- tra. ton four or five years, but how much longer he could not tell that he had known him to command vessels registered as American, sailing under the American flag, and carrying ten or twelve guns; but that he had heard the plaintiff say, he was born in Ireland; though he had also heard him say, he was naturalized in 1787, and that he was reputed an American citizen. To establish the abandonment, the agent of the plaintiff was adduced, who deposed, that on the 7th of January, 1802, he left letters of abandonment, (a copy of which he at the same time offered) at the office of the broker who effected the insurance, to be delivered to all the underwriters on the vessel and cargo, but whether they were delivered or not, he could not say. The clerk however of the broker, certified, that if the letters were left, they must, from the regular course of business in the office, have been delivered, though he himself remembered nothing of the transaction. Notice to produce the letter of abandonment, had never been given to the defendants. On this a nonsuit was moved for, it being contended that the plaintiff had not shewn enough to entitle him to recover. The judge who tried the cause, seemed to think the citizenship not sufficiently established, but that a verdict might be taken, and this, together with the other points, reserved by the defendant. The jury accordingly found for the plaintiff, in both suits; subject, on a case to be made by the defendant, to the opinion of the court, whether a nonsuit should be entered, or a new trial granted, NEW-YORK, Peyton V. Hallett. The same v, Delafield. Pendleton in behalf of the defendant, made the follow lowing points: 1st. That George White was not a competent witness. 2d. That the vessel being American, parol proof of ownership was not admissible. 3d. That parol proof of the abandonment was not admissible, the abandonment having been made in writing, and notice to produce it not having been given. 4th. That there is no proof of the property being that of a citizen of the United States. 5th. That admitting these points to be against him, the plaintiff cannot recover on the vessel, as she was acquitted at New-Providence the 9th of December, 1801, and the abandonment not made till the 7th day of January following, .. On the first point, it is only necessary to read the case; by this it will appear, that White's interest was direct. He was to be paid out of the fund. Can any man doubt, that he who is to be paid out of a fund, is interested in creating that fund? In Powel v. Gordon, 2 Esp. 735, having a a power of attorney to receive the money for which the suit was brought, excluded the holder of it, from being a witness. It is true, the order was not obligatory on the agent, but still it was a lien on the fund, A mortgage is but a collateral security for a debt; the mortgagee, however, is case between not, in an ejectment, a witness for his mortgagor. It is no a bankrupt and answer to this to say, that here the matter was but a chose the holder of an in action, for, of that chose in action, the order made • That was a the assignees of order drawn by on money due the bankrupt, White an assignee pro tanto, which a court of equity would him on an ex- notice. Row v. Dawson, 1 Vez. Sen. 331.* So in Yates chequer warant, and that y. Groves, 1 Vez. J. 280. the holder of an order not acwith the teller. Cepted, but verbally promised to be paid out of the fund, This was held was held to have a lien on the fund.† He therefore had a against the as- direct interest, order lodged an assignment signees, who represented On the next point, there can be no doubt. Matter of their bankrupt. record can be proved only by record. By the ninth section + That also was a case against of the register act of the 31st December, 1792, it is enassignees,to de clare a lien on acted, that "The several matters herein before required, the money in their hands. "haying been complied with, in order to the registering "of any ship or vessel, the collector of the district, com |