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Vandervoort v. The Col. Ins. Co.

dants to remove this doubt, by showing the particular object of the commission, and specifying the evidence they want to obtain, and in what manner it is material.

If they pursue the application, by doing this, we shall then be better able to judge of the propriety of granting it. We are, therefore, of opinion, that the application ought not to succeed, under the circumstances which now appear.

Motion denied.(a)(0)

(a) [Old note.) On a subsequent day, the application for a commission was renewed, on an affidavit of the defendants, stating that they expected to prove by the Portuguese secretary of state, at Lisbon, the laws of Portugal, relative to the trade with the Brazils, and an authentic copy of the judicial proceedings at Para, relative to the brig Aurora and her cargo, seized for illicit trade with the Brazils. The counsel also exhibited a copy of a letter, proved by affidavit, from the Portuguese secretary of state, stating his official information as to the case, and an expectation of receiving the judicial proceedings from Para, &c.

It appeared, that the action was on a policy, on the brig Aurora and her cargo, from New York to Rio Janeiro, with liberty to go to one other port, on the coast of Brazil, and back to New York. The property was warranted “ free from any charge, damage, or loss, which may arise in consequence of a seizure or detention, for or on account of any illicit or prohibited trade," &c.

The Court (Lewis, Ch. J dissenting,) granted the commission, with the limitation, that it should not stay the proceedings beyond the next November circuit; although Radcliff, J. and Thompson, J. thought it was not a case strictly within the act, as the documentary evidence did not require a com: inission, and that it was not necessary te examine a witness abroad, as to the laws of Portugal. Kent, J. was of opinion, since the object of the commission had been disclosed, that it was within the act, and ought to be granted without hesitation, as the witness might prove the laws of Portugal, which were stated to have been fluctuating during the late war, and might be known only to a person resident in Portugal.

(6) In granting or refusing a commission, with a stay of proceedings, (for without a stay it would seein to be a matter of course at any time, at the peril of the party,) tbe court have a right to exercise a sound discretion, according to the circumstances of the case, and as it may tend to the discovery of truth, on the one hand, and the prevention of delay on the other. It is, therefore, competent for the opposite party to resist the application, if he can sbow reasonable grounds, on which it ought to be denied ; (3 Johns. Cas. 137;) and, in such case, the court will order the party applying for the com VOL. III.

23

Hunt y. Leon.

[*140)

*Hunt against LEON.

In an action of trespass, assault and battery, where the damages found by

the jury are under 5 dollars, the judge, notwithstanding the verdict or pleadings, may, in his discretion, refuse a certificate to entitle the plaintiff to full costs, if he is satisfied, on the evidence, that the assault and battery were not sufficiently proved.

This was an action of assault and battery, in which a verdict was found for the plaintiff, for one cent damages ; and the judge, before whom the cause was tried, supposing he had no discretion, granted a certificate to give full costs, under the statute, but which he would have otherwise refused.

M. Livingston, for the plaintiff.
Riker, contra.

inission, to disclose by affidavit, what he expects to prove, and may then, in its discretion, grant the rule, either absolutely or conditionally, unless the adverse party will admit what is sought to be proved; by which is meant, however, an admission of the facts, and not mere that the witness would, if present, testify to those facts. (7 Cowen, 369 ; Grah. Prac. 2d ed. 285.) But the court will not refuse a commission with a stay, upon an affidavit that the witnesses named are interested in the cause, but will leave their competency to be determined at the trial. (11 Johns. 200.)

It would seem, also, that the rule before laid down, with regard to putting off a trial, is fully applicable in the case of a commission, namely, that the court will not require a specification of the testimony, unless circumstances of suspicion are made to appear. (Graham's Practice, 2d edition, 287.) And, it has been held, that on a motion for a commission to examine witnesses, with a stay of proceedings, where doubt is cast upon the bona fides of the application, the commission will not be granted on the common aflidavit; but, if at a subsequent term, a prima facie case for a commission be made out, the motion will be granted. (7 Wendell, 514.)

It would seem, also, that the court, in granting a commission with a stay of proceedings, may, under the provision of the statute authorizing it to impose such terms as it shall think proper, (2 R. S. 393, sec. 11,) impose terms for the preservation of the rights of the other party, in the same manner as upon an application for the postponement of a trial, to which we have before adverted. (Grah. Prac. 2d ed. 288, 289. See 1 Burr. Prac. 2d ed. 413.)

Learned v. Duval.

Per Curiam. If an assault and battery be aufficietly proved, or the title to lands comes in question, and it so ap pears to the judge, he is bound to certify, and has no discretion. The cases under the section relative to wilful and malicious trespasses, equally apply to this section. (Sess. 24. c. 170, s. 5-8.) But neither the verdict nor form of pleading conclude the judge ; and if, on the evidence, he is not satisfied that the assault and battery were sufficiently proved, he is not bound to certify.

Motion granted.(a)

LEARNED and others against Duval, an abscon- (*141]

ding debtor.

This court has the same power over the proceedings of the recorder of New

York, while acting as commissioner, as when acting as recorder ; but they will not exercise the power where the recorder has a discretion by the act, and has acted definitively, as in granting a supersedeas under the act, as to absconding debtors. The regular course is to bring up the proceedings of the recorder, by certiorari, not by an order of this court.

Jones, in behalf of the plaintiffs, presented a petition to the court, praying an order on the recorder of the city of New York, as commissioner, to return the proceedings, and to set aside a supersedas granted by him, under the 21st section of the act, relative to absconding debtors, which was allegedt o have been allowed, after an appeal had been interposed, and upon inadequate secuity.

C. I. Bogert, contra.

Per Curiam. This court have the same power over the recorder, while acting as commissioner, as when acting as recorder. But there can be no use in having the proceedings brought up in this case. The discretion of the judge or

(a) Grah. Prac. 2d ed. 720, et seq. ; 1 Burrill's Prac. 2d ed. 272, et seq.

Crowningshield v. N. Y. Ins. Co.

commissioner, is absolute and definitive, as to the coinpetency of the security; and as a supersedas issued, by which the property was discharged, the act of the recorder must necessarily be final. As we could not correct the proceedings in this case, there would be no use in granting the order prayed for.

The regular course of proceeding is not by an order. The proper mode of bringing up the proceedings is by a certiorari directed to the recorder.

Motion denied.

(*142] "CROWNINGSHIELD and others against The New

YORK INSURANCE COMPANY.

Where goods were insured in 1796, from Salem to Europe, and from thenco

to the East Indies, and back to the United States, with liberty to touch, stay and trade at any ports or places on the outward and homeward passages, &c. The ship sailed to Bordeaux, and from thence she went, suc. cessively, to the Isle of France, Tranquebar, Pondicherry and Madras, from whence she returned to Pondicherry, and sailed thence to the Isle of France, and from thence in 1797, back to Calcutta, and from thence

home. By a memorandum, written by the insurers in the margin of the policy, in

March, 1798, it was agreed, for an additional premium of 10 per cent. paid by the insured, the ship having returned to the Isle of France from Calcutta, and sailed again to the coast of India, that the same should not

prejudice the insured. It was held, that the memorandum was an agreement by the insurer and not

a warranty by the insured, and that it covered all previous deviations, and resumed the risk from the Isle of France back to the East Indies, and that the insured were not, therefore, entitled to a return of the additional premium, on the ground of a mistake in the representation as to the actual deviation which had taken place, aud which might not be cured by the memorandum.

This was an action of assumpsit, for the return of a premium on a policy of insurance, on goods on board the ship Belisarius, "from Salem to one or more ports in Europe, and at and from thence, or either of them, to any port or ports,

Crowningshield v. N. Y, Ins. Co.

place or places in the East-India or China seas, with liberty to touch, stay and trade, at any of the ports and places, on her outward and homeward passages, in port and at sea, at all times and in all places, as well on this as on the other side of the Cape of Good Hope, until her safe arrival at her port of discharge in the United States, &c. The ship sailed in October, 1796, from Salem and arrived at Bordeaux; from thence she sailed to the Isle of France, thence to Tranquebar, thence to Pondicherry, thence to Madras, from thence she returned to Pondicherry, and from thence sailed to the Isle of France; and in October, 1797, sailed from thence back to Calcutta, where she arrived in December, 1797, and left Calcutta, on her return home in February, and touched at Tranquebar, the Isle of France, and the Isle of Bourbon, from whence she sailed for America, and arrived at Salem, in July, 1798.

In March, 1798, the following memorandum was written, by the defendants, in the margin of the policy. “The ship Belisarius having returned to the Isle of France from Calcutta, and from thence proceeded again to the coast of India; it is agreed, that in consideration of an additional premium of ten per cent., hereby *acknowledged to [*143) be received, the same shall not prejudice this insu. rance."

A verdict was taken, by consent, for the plaintiffs, subject to the opinion of the court on a case containing the above facts.

The return of the additional premium of ten per cent. was claimed by the plaintiffs, on the ground that the actual deviation was not understood by the plaintiffs, and the agreement founded on a mistake. That the actual, was different from the supposed deviation, and the policy being avoided by the deviation which took place, was not revived by the memorandum, so that the additional premium was paid without consideration.

C. I. Bogert, for the plaintiffs.
Hoffman and Hamilton, contra.

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