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Jackson v. Laroway.

Carhampton, (1 Irish T. R. 567,) the plaintiff produced a deed dated 14th of January, 1735, purporting to have been made on the marriage of the late Lord Carhampton with the plaintiff; and proved that possession had accompanied it 52 years, and until the death of the late lord; he also produced a clerk from the registry office, who proved that he found in the registry office the memorial of a deed agreeing in parties, witnesses, description, &c. &c., with the deed produced; held, that the memorial might be read, and also the deed, as an ancient deed, leaving the question of authenticity to the jury, * A reasonable presumption of the authenticity of the instrument,' said Carlton, C. J., delivering the opinion in this case, ' was sufficient to admit it to be read.' (Id p. 577.) The permitting it to be read, however, does not decide, on the final influence of the evidence, as to its reality ; that is for the jury. (Id. 577.) Such unquestionably is the well settled doctrine in New York. In Jackson, et dem. Lewis v. Laroway, (3 John. Cas. 283,) the point was fairly and fully considered, and Radcliff, J., who delivered the prevailing opinion, laid down the general rule to be, that a deed appearing to be of the age of thirty years, may be given in evidence without proof of its execution, if the possession be shown to have accompanied it; or, where no possession has accompanied it, if such account be given of the deed, as may be reasonably expected under all the circumstances of the case, and as will afford the presumption that it is genuine. This rule,' he adds, 'is founded on the necessity of admitting other proof, as a substitute for the production of wilnesses, who cannot be supposed any longer to exist. A correspondent possession is always high evidence in support of such a deed; but where no such possession appears, other circumstances are admitted to account for it, and raise a legal presumption in its favor.' (Id. 286, 7., This case has never been over. ruled, but, on the contrary has received the sanction of several subsequent adjudications (Hewlett v. Cock, 7 Wend. 371. Jackson, er dem. Hunt v. Luquere, 5 Cowen's Rep. 221, 225, 6, 7, 8. Jackson, er dem. Wilkins v. Lamb, 7 id. 431. Jackson, ex dem. Bowman v. Christman, 4 Wend. 277.) It is the doctrine in South Carolina also; (Robinson v. Craig, 1 Hill's Rep. 389, 391, 2;) and Indiana ; (semble, Henthorn v. Doe, 1 Blackf. Rep. 156, 162, and note (3) at p. 165) And it has been both recognized and acted upon by the supreme court of the United States. (Barr v. Gratz, 4 Wheat. Kep. 213. Winn v. Patterson, 9 Peters' Rep, 674, 5, per Story, J. See Coulson v. Walton, id. 62, 72 ; Clarke's lessee v. Courtney, 5 id 344.) Proof of such circumstances as could not well have happened, without the existence of the deed, affords a presumption that the deed is fair. (Thompson v. Bullock, 1 Bay's Rep. 364.) Indeed, almost any evidence intriusically unobjectionable, and tending to raise a presumption of the genuineness of the instrument, is admissible. The sufficiency of it will depend so much upon the nature of each particular case, that no general rule can be laid down with regard to it.” (See also Parris v. Eubanks, 1 Speers, 183 ; Crane v. Marshall, 4 Shepley, 27; 1 Greenleaf Ev. ed. 1842, § 144, and note 1; 3 Starkie Ev. ed. 1842, p. 1267, 1268 ; id. 907; 1 id. 66, et seq., 383, et seq.)

Livingston v. Hastie.

*Livingston against Hastie & PATRICK. (*293]

Insurance on goods from New York to New Orleans, and at and froin thence

to New York. On the homeward voyage, the vessel and cargo were captured, and the insured received information of the capture on the 30th December, and abandoned to the insurers on the 21st January, though the property was in fact released and in safety on the 15th January, but unknown to the insured. The abandonment was held valid; and the property having arrived at the port of New York, the insured tendered it to the in. surers, who refused to accept it, and it was put in store, and sixty days after, was sold by the insured for the benefit of the insurers; this was held not to be a waiver of the abandonment.

This was an action on an open policy of insurance on goods laden on board the scow Frederick, at and from New York to New Orleans, and at and from thence to New York. The vessel sailed from New Orleans, and during her homeward voyage, on the 14th November, 1799, was captured by a British cruiser and carried into New Providence. The. plaintiff received information of the capture on the 20th December, and on the 30th of December the plaintiff received information from his agent at New Providence, that no attempt would be made against the plaintiff's property in the vessel. On the 20th January, 1800, the plaintiff received information that the vessel, which also belonged to the plaintiff, was libelled, and that the trial would probably take place the 27th December, 1799; and on the 21st January, the plaintiff made an abandonment to the defendants. The vessel and cargo were liberated on the 15th January, and arrived in safety, in New York, the 15th February, 1800. The captors appealed from the decision of the vice-admiralty court at New Providence.

On the arrival of the vessel and cargo in New York, the plaintiff tendered the property which had been insured, and abandoned to the defendants, who refused to accept it; and made no offer to pay for the costs and expenses attending it, in consequence of the capture. The plaintiff, on the 15th April, 1800, sold the property for the benefit of the insurers,

Livingston v. Hastie.

and credited the defendants with the net proceeds, and claimed the balance.

A verdict was found for the plaintiff, subject to the opinion of the court on a case containing the above facts, with liberty

to either party to turn the case into a special verdict. (*294] *W. Morton, for the plaintiff.

Pendleton, contra. Per Curiam. Two questions have been made ; 1. Whether the abandonment was valid, the subject having been released, and in safety, at the time of the abandonment, though the fact was unknown to the plaintiff; 2. Whether the abandonment was afterwards waived by the plaintiff.

The first question has already been decided in the case of Mumford v. Church, (1 Johns. Cases, 147.) As to the second point, it is contended that the plaintiff having kept the property for 60 days after its arrival in New York, before it was sold, he must be deemed to have appropriated it, and waived the abandonment. This inference from that naked fact, is not to be allowed. The cargo arrived on the 15th February, and the plaintiff immediately tendered it to the defendants, who refused to receive it. It was then put in a store, where it lay until it was sold. This may have been done by the plaintiff, in good faith or not, as trustee or agent of the defendants; and whether it was for their benefit or not, we cannot infer, from this single fact, thus unexplained, that there was a waiver of the abandonment. We are of opinion, therefore, that the plaintiff is entitled to judgment.

Lewis, Ch. J. and Livingston, J. being related to the plaintiff, declined giving any opinion.

Judgment for the plaintiff.(a)(6)

(a) See Mitsord, vol. 1, p. 151, note (b) to Mumford v. Church.

(6) In Walden v. Phænir Ins. Co , (5 Johnson, 310,) it was held, that the sale of a ship by the assured after an abandonment for a sufficient cause, was not necessarily a revocation of the abandonment. Mr. Justice Thompson, who delivered the opinion of the court, observed : “ The assured, by operation of law, became the trustee and agent of the underwriter. To consider the mere sale of the subject, by the assured, for the avowed benefit of the underwriter, after a refusal to accept a rightful abandonment, a waiver of such

Livingston v. Hastie.

abandonment would, it appears to me, be against the principles of justice and sound commercial policy. If the subject was of a perishable nature, a total loss must be the consequence. The assured being made trustee er necessitate, if he executes his trust with fidelity, it is all the law requires of him. And whatever he does, ought to be considered as done in the character which the law has imposed upon him, unless his conduct shows clearly that he intended to act for his own benefit, and to waive his abandonment. The quo animo is the criterion by which his acts ought to be tested.” (See supra 45, Abbot v. Sebor; Lawrence v. Van Horne, 1 Caines, 285.) Where a vessel, thrown upon the rocks in Hurlgate, was abandoned by the owner, but having been afterwards got off the rocks, and brought to New York, was sold at auction by the captain. She was bid off by a third person without the owner's knowledge or consent, but was soon afterwards delivered to the owner by the pur-" chaser, under whom the owner claimed and held it as his own. It did not appear that any purchase money was paid, but the owner gave credit for the amount in his claim for damages. The insurer contended that it was a sham sale, and that the owner had thereby waived his abandonment. It was held, in an action on the policy, that it was a question for the jury to determine, under all the circumstances of the case, whether the sale was a valid or a pretended one ; that if they found the sale valid, there was no waiver of the abandonment; but if they found it a mere pretended sale, with a view to subject the insurers to a total loss,-if no purchase money had been paid, and the plaintiff had possessed and used the vessel as his own, without any objection or claim from the defendants,—the jury would be warranted in presuming that the parties had waived the abandonment, and that the owner would be entitled to recover for a partial loss only. (King v. Hartford Ins. Co., 1 Conn. 333.)

Where the assured bought in a ship, sold by the captain because of sea damage, and afterwards sold her on their own account, it was held to be a waiver of the abandonment. (Abbott v. Sebor, supra, 45.) Upon this prin: ciple, receiving and disposing of a vessel and the proceeds of cargo by the insured, or a person whoin he has put in as ostensible owner, in order to claim, in case of capture, will be a waiver of a previous abandonment. (Mar. tin v. Salem Ins. Co., 2 Mass. 420 ; Smith v. Touro, 14 Mass. 112; Oliver v. Newburyport Ins. Co., 3 Mass. 37.) Though the purchase of a vessel, aster abandonment, by the original owner, at an open and fair vendue, is not a waiver of the abandonment. (King v. Middletown Ins. Co., 1 Conn. 184. See 2 Phil. on Ins. ed. 1840, 404, et seq.; id. 371, et seq.)

Jackson v. Wilson.

[*295) *Jackson, er dem. SMITH AND OTHERS, against

Wilson.

Where a landlord, in 1786, brought an action of ejectment against his ten

ant, holding under a lease containing a clause of re-entry for non-payment of rent, and recovered judgment against the casual ejector, by default, under the statute, and possession was thereupon delivered to the landlord, who executed a lease and gave possession to another person; and the ten. ant under the first lease, asterwards brought an action of ejectment, in 1790, for the same premises, against the tenant under the second lease, it was held, that the judgment by default was, prima facie, regular, and a sufficient bar; and that the defendant was not obliged to show an affidavit, or any of the prerequisites to a recovery, required by the statute. (Sess. 24, c. 36, s. 23.)

This was an action of ejectment. Both parties derived title from Alexander Colden, the elder. The cause was tried at the Rensselaer circuit, in May, 1902. The plaintiff produced in evidence a lease from Colden to John Griffith, dated 8th October, 1772, for the premises, for the life of the lessee, at the yearly rent of 51. 5s. The lease contained a clause of re-entry for non-payment of rent, &c.

The defendant offered to prove a re-entry of the landlord and produced a record of a judgment in ejectment, recovered in consequence thereof, by default, against the casual ejector, in July term, 1786. It was objected that the defendant, to warrant the judgment, ought to produce the affidavit, that no sufficient distress could be found on the premises, &c. but the judge overruled the objection, on the ground that the judgment was prima facie evidence of a recovery, either under the statute or at common law.

The defendant then offered to prove by parol, that possession was delivered under the judgment in ejectment; but it was objected by the plaintiff that the writ of hab. poss. ought to be produced. The judge decided that parol evidence was admissible.

A witness, who was deputy sheriff in 1786 and 1787, tes

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