NEW-YORK, there was any note in writing, of that agreement; which was therefore void, by the statute of frauds. May 1803. Miller V. Drake. 2d. That the promise by Miller, was for the benefit of one Rhoam, a third perfon; and therefore, without confideration as to him; and for that reason, also void. 3d. That there was no performance of the contract on the part of Drake; it not being alleged that he offered a deed executed, or ready to be executed. The firft exception is clearly not well taken. Although the ftatute of frauds requires a note in writing, to support a contract refpecting the fale of lands, it is not necessary the Cafe v. Barber, writing should be fet forth in the declaration; and it is fuf1 Raym. 450. ficient if it appear in evidence. The ftatute has not altered the form of pleading, which remains as it was at the common Bull. 279. law. 2. The fecond exception, we think, is equally untenable. The action was founded on mutual promises; and the one promife was the confideration of the other. It was not ne ceffary that the act promised to be done by Drake, should appear to be immediately beneficial to Miller, in order to fupport the obligation of his promife. It was fufficient that its performance would be detrimental to Drake, or deprive him of a right which he before poffeffed. An injury to one party, or a benefit to another, is fufficient confideration for a promife. By the agreement in this inftance, Drake was to Qy. If fuch convey to another* his title to certain lands, in confideration other might not of which, the promise on the part of Miller, was made; and an action. Dal- that confideration was fufficient. have maintained tou v. Poole, 1 Vent. 318.Mar non, I Bof. & 3. With respect to the third exception, we hold the offer chington v. Ver- to perform is fufficiently averred in the declaration. It is aPull.101. n.(c.) verred that Drake and his wife attended at the time and place See alfo Comb. appointed, "ready prepared and offering to execute" the convey117. Martin v. ance "according to the faid agreement;" and that Miller did Hinde, Cowp. not attend; and that he has refused to 219. 8 Mod. 437- See 1 Lex to perform the agreement on his part. 372, 3. the cafes fubftantially fufficient, and the manner in there cited. accept the fame, and This averment was which the tender or offer to convey was made, was matter of evidence on which the juftice has decided, and which cannot appear on the record. We are therefore, of opinion, that none of the exceptions are well taken. James Weaver against Elijah Bentley. I NEW-YORK, May 1803, J. Weaver V. E. Bentley. If a perfon bind himfelf feal to do a certain act for a eration, and he under hand and certain confid fail, affumpfit will lie to recover back the THIS was an action of affumpfit to recover back the confideration paid on an agreement under feal in the following words-" November the 26th, 1796. Know all men by "these presents, that I, Elijah Bentley, do bind myself to pro"cure for James Weaver, Lot No. 67, joining Ballcock's on "the weft, which lot I am now in poffeffion of, which "promise to procure fo far as this, on these conditions, that " is, a lease to be either three years rent free, then to pay the "interest of one hundred and fixty pounds yearly, for the "term of ten years, then with paying one hundred and fixty confideration paid. 86 pounds, to have a deed for the fame lot, containing one "hundred acres, which lease I promise to deliver by the firft “ day of June next, and then if not called for, whenever called "for. The condition of this obligation is fuch, that if I do not "deliver the faid leafe, the two fixty pound notes, which are "dated November the 26th, 1796, which I have against James "Weaver, fhall be of none effect. As witness my hand and ❝ feal. "ELIJAH BENTLEY. (L. S.)" The cause was tried before Mr. Juftice Thompson, at the circuit court for the county of Herkimer. The plaintiff produced in evidence the agreement and affidavits of various payments by the plaintiff. The counsel for the defendant objected to the plaintiff's right of recovering in this form of action; infifting that the agreement was under feal, and imported a covenant, and therefore affumpfit would not lie. His honour, after hearing counfel, directed a verdict to be taken for the plaintiff, fubject to the opinion of the court on the point relied on by the defendant. His honour the C. J. and all the Judges but Livingfton J. concurred in the following determination. Per curiam. The defendant covenanted to procure for the plaintiff within a given time, or on demand thereafter, a leafe for certain lands, three years free of rent, then to pay the intereft of £.160 annually, for ten years, in lieu of rent, and at the expiration of that period, to have a conveyance of the fee on payment of the principal fum, in default whereof, two Weaver NEW-YORK, notes of fixty pounds each, given by the plaintiff to the defendMay 1803. ant, were to be void. The plaintiff made certain payments in money and farm stock to the defendant, who failed to perform his covenant and the plaintiff thereupon brought affumpfit; and the queftion now is, whether the action will lie or the plaintiff be compelled to refort to his covenant. V. Bentley. This cafe is so loosely drawn that it scarcely affords fufficient ground for a decifion. It is not stated for what the notes, money or ftock were given; prefuming them to have been the confideration of the covenant, the question then will be whether the defendant having failed to perform on his part, the plaintiff may difaffirm the contract and refort to his affumpfit to recover back what he had paid. We are of opinion he had his election either to proceed on the covenant and recover damages for the breach, or to difaffirm the contract, and bring affumpfit to recover back what he had paid on a confideration which had failed. Judgment therefore must be for the plaintiff. Livingston J. Two questions were fubmitted to us in this cafe. 1. Do the terms of the contract import a covenant ? 2. Can the plaintiff waive covenant, and bring affumpfit to recover the confideration paid for the land? In answer to the first it is only necessary to state, that the defendant "binds himfelf" under feal to procure for plaintiff a certain lot of land, and "promises" to deliver the lease by a certain day. The words " bind and promife" create a covehant as ftrong as any which could have been used. It follows then that an action of covenant will lie on the inftrument on Bentley's non-performance, to recover back all that has been paid. When that is the cafe the party must rely on the fecurity he has taken, there being no neceffity for the law to imply a promife different from the one contained in the terms of the contract. Promises in law exist only where there is no express stipulation between the parties-thus Touffaint v. in 2 Term. Rep. 100,* where a furety had taken a bond of indemnity from his principal he was not permitted to refort to an action of affumpfit for the money he had paid. This is a ftronger cafe, for if the present fuit be maintainable for the money paid in confequence of this covenant, I fee nothing to prevent the plaintiff from bringing an action on the inftrument Martinant. May 1803. Weaver V. Bentley. 49 itfelf, for other damages which may have been fuftained by the NEW-YORK, defendant's non-performance, and thus fubjecting him to two fuits for a compenfation which might have been obtained in one-for these reasons I think it more fafe to adhere to the rule which confines a man to the fecurity he has taken, than to depart from it, merely because the merits may be with the plaintiff. The case of D'Utricht v. Melchor, 1 Dall. 428. cannot be law. In my opinion there fhould be judgment for the defendant. William Muir and William Boyd against The United Infurance Company of the City of New-York. and carried into THIS was an action of affumpfit on a policy of insurance, A veffel captureffected in the name of Archibald Gracie, on the cargo of ed, recaptured, the ship Dauphin, valued at eighty-feven thoufand one hun- a port of the dred and fixty dollars, on a voyage from Surinam to Lon- country to which bound, and in the way to that of her deftination; in don. a The caufe was tried before Mr. Juftice Radcliff, at the June fittings in New-York, 1802, when the jury found verdict for the plaintiffs, fubject to the opinion of the court on the following cafe, in which were admitted, vef First, The defendants' fubfcription, the failing of the fel on the voyage infured on the fecond of October 1799, and the plaintiffs' interest. pro formation of all ftances being thefe circum received at the fame time, the affured cannot fuch a cafe, the abandon. If, in and her cargo be fold at auc tion, the charges affured. Qy. If newfpaper information be fuch on Secondly, That on the firft of December 1799, in the fecution of the faid voyage, the ship, with her cargo, was of fale fall on the captured by a French privateer, called the Bellona, of Bourdeaux, when the whole of the crew, except the captain, mate, carpenter and boy were taken on board the privateer, toge- which an abanther with her papers; and a prize-mafter, and thirteen men donment can be were put on board, with directions to carry her to Bourdeaux. Thirdly, That on the fourteenth day of December 1799, the fhip was recaptured by two English frigates, the French prize-mafter and men taken from on board of her, and an English prize-mafter and ten men put on board, with directions to carry her to Plymouth, in England, where the arrived on the 12th of January, 1800, and was libelled by the re H made? NEW-YORK, captors for falvage, and a claim interpofed by the captain, on behalf of the plaintiffs. May 1803. Muir & anr. V. U. S. Co. Fourthly, That on the second of April 1800, information was received from a London newfpaper, of the capture, recapture and arrival of the fhip at Plymouth; and that on the third of the fame April, the abandonment was made. Fifthly, That the cargo, while in poffeffion of the captors and recaptors, as well by reason of tempeftuous weather, as from neglect and inattention, in not pumping the vessel, fuftained confiderable damage. That the veffel, at different times, had eighteen inches of water in her hold, and that the water pumped up was frequently thick with coffee and sugar; that one of the bales of cotton took fire by accident, and a part thereof was thrown overboard: that the cargo was plundered by the French. Sixthly, That the captain of the veffel, shortly after his arrival at Plymouth, wrote to Cadcleugh, Boyd & Co. of London, the confignees of the ship and cargo, requesting them to come down to Plymouth, or to send some person to aid him, or to inftruct him what measures would be most prudent for him to pursue. That, in confequence of this letter, Mr. Boyd himself went down to Plymouth about ten days after the arrival of the vessel at that place, and immediately entered into a negociation with the agents of the recaptors for the liberation of veffel and cargo; it being afcertained, that the cargo would fell in London, the place of its destination, at a much better price than at Plymouth. Seventhly, That the veffel and cargo were appraised at Plymouth; the former at £973 Sterling, and the latter at £11,697:15:1 Sterling. That Mr. Boyd offered to pay one eighth of the appraised value both of veffel and cargo, in lieu of falvage, provided the agent of the recaptors would affent to deduct a reasonable allowance for the damage and injury the cargo had fuftained while in poffeffion of the captors and recaptors that, to avoid the expence of unlading the cargo to ascertain such damage, it was agreed between Mr. Boyd and the agent of the recaptors, to leave the quantum of damage and injury to the captain of the veffel and the prizemafter. They, after taking into confideration the quantities both of fugar and coffee, that had been pumped up, and the other injuries the cargo had sustained, (without landing the |