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for them, of the goods and merchandise aforesaid, to be transported, conveyed and delivered as aforesaid, the said defendant made or caused to be made and delivered to the said plaintiffs a certain receipt or bill of lading of the said goods and merchandise, which is in the words following, to wit:
New-York, May 24th, 1849. Received from A. L. Scovill & Co., in 'good order, on board the Griffith's line, bound for Albany, McCoun, marked S. H. Greenman, care Ainsworth & Northrop, 15 State-street, Albany, 9 boxes merchandise.
That the nine boxes of merchandise, mentioned in the said paper writing or bill of lading, were marked and directed as above stated by the plaintiff, and the said nine boxes contained the medicine, goods and merchandise above described, and that the name of Wilson, subscribed to the same, was the name of and the same was subscribed by or for the captain or master of the said vessel, McCoun, also mentioned in said bill of lading, in and on board of which the said goods and merchandise were laden, and who was the duly authorized agent of the said defendant for
That although the said vessel, on board of which the said goods and merchandise were laden as aforesaid, left the city of New-York at the time abovementioned, yet the said defendant did not safely or securely transport, carry or convey from the city of New-York to Albany, on board the said vessel, or otherwise, nor did he safely or securely deliver or cause to be delivered to the said Ainsworth & Northrop at No. 15 State-street, Albany, or any other place, nor to the said S. H. Greenman, nor to any other person or persons for them or either of them, for the said plaintiffs, the said packages of medicine, goods and merchandise abovementioned, or any part thereof; whereby the said property of the plaintiffs abovementioned became wholly lost to them, and whereby they lost the sale of the same to the said S. H. Greenman, and all benefit and advantage which they might and would have derived from the sale and safe and secure delivery of the said goods and merchandise as aforesaid, by reason of which they have sustained damage to the amount of $100.
Wherefore the plaintiffs demand judgment against the said defendant, for the sum of $424, being for the amount and value of the said goods, medicines and merchandise aforesaid, and their damages sustained as aforesaid, with the interest on the said sum of $324, the value of the said goods and merchandise, from the 28th day of May, 1849, and costs.
HAY S. MAKAY,
For breach of contract of a common carrier to transport.
goods by a particular route, by reason whereof, the goods being damaged, the plaintiff lost the benefit of an insurance upon them.
SUPREME COURT- ALBANY COUNTY.
agi. Aaror Van Kirk and Samuel Ashton.
The plaintiff complains of the defendant, and alleges, on his information and belief:
That the said defendant, Samuel Ashton, alone, or in connection with said defendant, Aaron Van Kirk,' on or about the 1st day of May, 1854, was the owner of the schooner Benjamin Browning; that the said defendant, Aaron Van Kirk, was the master of said schooner, and run the same in company with said defendant, Samuel Ashton, each sharing in the profits and losses; that on or about the said first day of May, 1854, at Albany, the said defendants, as common carriers, received in good order and condition from the said plaintiff one thousand bushels of barley malt, of the value of $1,450, to be carried and transported by said defendants safely and securely on said schooner, by the inland or canal route, from Albany, in the State of New York, to Baltimore, in the State of Maryland, and there to be delivered in like good order to the said plaintiff, the freight thereupon to be paid by said plaintiff, at six cents
six cents per bushel. And the said plaintiff saith that he caused the said malt to be insured for said voyage; and further alleges, on information and belief, that the said defendants failed to carry and transport said malt by said inland or canal route as they agreed, and that they failed to safely and securely carry and transport and deliver the same in good order as they agreed, but that the said defendants transported the same by the outward or ocean route, and so carelessly loaded the said schooner, and conducted themselves in such carriage and transportation, that they wet, injured and damaged said barley malt to the amount of $490.85, by
1 An allegation in this form, in the alternative, cannot be considered good pleading. (See Pleadings, 358; Corbin v. George, 2 Abbott, 465.) The pleader should inform himself so far as to allege on information and belief, or at least on his belief alone (Pleadings, 357, 358), the fact in a direct and affirmative form. Should there be a variance between the proof and pleading on the trial, the court may allow an amendment.
means whereof the said plaintiff lost all benefit and advantage from his said insurance, and is damnified to the amount of $490.85, for which sum, and interest from May 26th, 1854, and costs, he demands judgment.
Complaint on breach of promise to marry.
Title of the Cause.
The plaintiff complains of the defendant, and alleges the following facts, constituting her cause of action:
That on or about the 10th day of January, 1858, at the city of Troy, the plaintiff being sole and unmarried, the said defendant, in consideration of the mutual promise of the plaintiff to accept and marry him, faithfully promised to marry the said plaintiff.
That confiding in the said promise of the said defendant,
A complaint in an action for a breach of promise of marriage, alleging, in substance, in reference to a promise, that, in conversation between the parties at a time and place specified, the plaintiff
' asserted, among other things, that the defendant had promised to marry her; and that, at the same time and place, the defendant said to the plaintiff, he acknowledged he had done wrong in promising her as he did, and hoped she would forgive him; but if he should marry her, as they had talked, and she go to his house, it would make both miserable for life; and further alleging, that the defendant said to the plaintiff, in reply to her entreaties, she must try to forget it, and acknowledged he had done wrong, and that he was sorry for it, without otherwise avering a promise, does not state facts sufficient to constitute a cause of action. (Buzzard v. Knapp, 12 How., 504.)
the plaintiff has remained and continued, and still is, sole and unmarried, and has hitherto been, and is still, ready to marry the defendant.
That though a reasonable time has elapsed, since said promise and undertaking, for the defendant to marry the plaintiff, yet, although requested so to do, he has neglected and refused, and still does neglect and refuse, to marry the plaintiff, to her damage of $5,000 (or if defendant has married another person, so allege the fact.]
Whereupon the plaintiff demands, &c.
( No. 57.)
On a debt barred by the statute of limitations, but revived
by a new promise.)
Title of the Cause.
The plaintiff complains of the defendant and alleges :
That on the 1st day of March, 1849, the defendant made and executed to the plaintiff his promissory note for
· It is held at Special Term, in the case of Butler v. Mason, (5 Abbott, 40), that the plaintiff cannot anticipate in his complaint, and avoid the defence of the statute of limitations. Notwithstanding that case, however, it seems to me that the only proper way to set forth a debt which has been revived by a new promise is, as given in the present form. The case above alluded to simply held that it was surplusage to allege in the complaint, on a claim appearing to be barred by the statute, that the defendant had resided out of the state, by way of anticipating and avoiding the defence. That, however, is a different thing from a claim actually revived by a new promise. The new promise, and not the old debt, is the cause of action, and the old debt itself is merely the consideration to support the new promise. (See Pleadings, 267, 269.) The new promise, therefore, should be directly