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People v. Guernsey.

charged," was held fatal, and in the other, it is said, that no heed was taken to the exception. These cases, therefore, leave the question where they found it, without being of any influence either way; for the one case is equal in authority to the other. Neither case states whether the indictment was found at the quarter sessions, or in the K. B. or oyer and terminer, which is a material part of the inquiry; and, lastly, 12 Mod. is not a book of authority.

In the case of The King v. Morris, (2 Stra. 901,) after conviction on an indictment, the judgment was arrested, because the words "ad tunc et ibidem" were left out as to the swearing of the jury, and the case of The King v. Turneth was referred to.

This authority, at the distance of above fifty years from the other establishes the law with great force and effect.

That case, like the present, was a motion in arrest of judgment, after conviction; and although it does not state in what court the indictment was found, the [*267] inference *from that omission cannot be injurious to the authority of the decision, as applied to the pre

sent case.

A distinction is noticed in the books between indictments. in inferior courts, and indictments in the K. B. or grand sessions for counties palatine. (2 Hawk. 308, s. 17.) In the former, many words in the caption, are held fatal, which are not so in the latter courts; and it was said by the counsel for the people, that the sessions for counties palatine were analogous in rank to the general sessions of the peace with us. But I apprehend this is a mistake. In the case of The People v. The General Sessions of the County of Chenango, (1 Johns. Cases, 179,) on the question respecting the power of that court to grant new trials, this court decided. that the general sessions of the peace, in the several counties, had uniformly been regarded, by law and in practice, as inferior courts; and that they were to be considered, within the reason and meaning of the law, as inferior courts.

On the other hand, the courts of counties palatine have

People v. Guernsey.

always been regarded, in the English law, among the superior courts. They were originally clothed with jura regalia. They had, in the age of Bracton, (fol. 122, b. c. 8, s. 4; 1 Bl. Com. 117,) as he expresses it, regalem potestatem in omnibus, and they are, at this day, privileged as to pleas, so that no inhabitant is compelled to appear and answer out of the same, except for error and in cases of treason, &c.

To all these authorities I know of nothing to be opposed, unless it be the form of the caption of an indictment from the sessions, as given in Hale, (vol 2, p. 165,) in which the words then and there are omitted. Precedents are, no doubt, in many cases, of good authority, but a single precedent, in opposition to such adjudged cases, cannot avail. We are of opinion, therefore, that the judgment must be arrested.

Judgment arrested.(a)

(a) Mr. Chitty states, (1 Crim. Law, Perkins' ed. 334,) that although it was formerly considered necessary to prefix the words "then and there," to the word "sworn," (2 Stra. 901; 1 Mod. 27; 1 Vent. 51; 2 Keb. 583; Hawk. b. 2, c. 25, s. 126; Bac. Ab. Indictment, I.,) they are not now usual. At all events, a defect in the caption, for which an indictment will be quashed, must be of a clear and decisive character. (State v. Hickman, 3 Halst. 299.) And where time and place are set forth in the caption of an indictment with sufficient certainty to a common intent, legal niceties will be disregarded. (State v. Brisbane, 2 Bay, 451.) Where the caption of an indictment from the circuit court of Indiana showed that, at, &c., on, &c., the jurors (naming them) appeared in court, and being duly sworn and charged, &c. Held, that the omission of the words "then and there," before the words "sworn and charged," was not material. (Beauchamp v. The State, 6 Blackf. 299.) The general rule upon this subject seems to be correctly laid down in Thomas v. The State, (5 Howard's Miss. 20,) that the caption of an indictment must state, with sufficient certainty, the style of the court, the judge presiding, the place at which the indictment was found, and the jurors by whom it was found. (See United States Digest, tit. Indictment, II. b.; id. Supp. tit. Indictment, II. a., where a large number of cases in reference to the caption of indictments will be found collected.)

VOL. III.

44

END OF OCTOBER TERM.

CASES

ADJUDGED IN THE

SUPREME COURT OF JUDICATURE

OF THE

STATE OF NEW YORK,

IN JANUARY TERM, 1803.

STEINBACK against RHINELANDER AND OTHERS.

SAME against CHURCH.

A. was at Trinidad in Cuba, where he received vessels and cargoes consigned to him by B. and C. of New York, and in which A., B. and C. were jointly interested. In April, 1800, A. purchased a prize vessel, and sent her with a small cargo, on the 29th May, to the Havana. On the return of a vessel from Trinidad to New York, which had been sent out by B. and C. to A., B. was informed by the master, that A. had purchased a prize vessel called the Chance, and that she was to come to New York with a cargo; and B., without receiving any information from A. himself, or any order for the purpose, on the 16th June, caused the vessel and cargo to be insured at and from Trinidad to New York, and paid the premium. The broker, at the time he effected the policy, told the insurer, that the plaintiff did not know whether the vessel and cargo had been purchased for A. or B. or C., and that he had no orders to have them insured; but that A. had the funds of B. and C., and they had just heard the vessel was coming to New York. The policy was effected for account of A. or C. or B. and C., or any other person, &c., in the usual form.

The vessel not having come to New York, B. afterwards brought an action against the insurers, to recover back the premium, and, at the trial, A. who had been previously released by B., was admitted as a witness, and testified that the vessel and cargo were his sole property, and were purchased on his own account, and that neither B. nor C. nor any other person, had any interest in them; and that he sent her to the Havana, and though he wrote to B. and C. in May, he never informed them of the purchase, or ever

Steinback v. Rhinelander.

gave any orders to them, or to any other person, to have the vessel insured in New York.

It was held, that A. under the circumstances, was a competent witness; that B. was not his agent; and that the supposed interest of B. being a mistake, no risk was run, and that the plaintiff, was, therefore, entitled to a return of premium.

THE first action was for a return of premium on a policy, dated 6th June, 1800, on the body of the [*270] schooner *Chance, at and from Trinidad, in the island of Cuba, to New York, purporting to be made by the plaintiff, for account of himself, or Peter Malibran, or John Murray & Son and the plaintiff, or whoever else, &c. The vessel was valued in the policy at 7000 dollars, and the premium was 20 per cent.

It was proved at the trial, by the broker who effected the policy, that the plaintiff informed him, that Captain Brown, of the ship Albemarle, who had just arrived from Trinidad, had informed him that Malibran had purchased at Trinidad the schooner Chance, a prize vessel, and had sent to the Havanna for a crew, and that she was coming to New York; but that he did not know whether she had been purchased for Malibran or for the plaintiff, or for Murray & Son and the plaintiffs, they having funds there in his hands; that the plaintiff informed him he had no orders for insurance from Malibran; and these facts the broker communicated to the underwriters.

It was further proved, by John Murray, that the plaintiff mentioned to him the information he had received from Captain Brown, and that he proposed to insure, and that the schooner was intended to be sent from Trinidad to NewYork. It was also proved, by a clerk of the plaintiff, that the plaintiff had not (as he had heard) any orders from Malibran for insurance, and that Malibran had wrote several letters to the plaintiff, in April and May, 1800, and none of them contained any advice to that effect.

The deposition of Malibran, which had been taken de bene esse, by consent, saving all just exceptions, was produced

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