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. *W. Morton, for the plaintiff. [*294] 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)(b) (a) See Mitford, vol. 1, p. 151, note (h) to Mumford v. Church. (b) In Walden v. Phænix 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 ex 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 principle, receiving and disposing of a vessel and the proceeds of cargo by the insured, or a person whom he has put in as ostensible owner, in order to claim, in case of capture, will be a waiver of a previous abandonment. (Martin 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, after 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, ex dem. SMITH AND OTHERS, against WILSON. Where a landlord, in 1786, brought an action of ejectment against his tenant, 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 tenant under the first lease, afterwards 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, 1802. 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 Jackson v. Wilson. tified, that he served the declaration in ejectment; but that he made no affidavit of the want of a sufficient distress on the premises, countervailing the arrears of rent; nor was it proved at the trial that any such affidavit was made. After the judgment, the witness received a writ of hab. poss. by virtue of which he turned out the tenant, and delivered possession to the agent of Colden, the landlord. The defendant then gave in evidence a lease of the premises from the heir of Colden to him, for 21 *years, dated the [*296] 15th March, 1794, by virtue of which lease the defendant entered and took possession. Under the direction of the judge, the jury found a verdict for the defendant. A motion was made to set aside the verdict, and for a new trial. Woodworth, for the plaintiff. Van Vechten, contra. Per Curiam. The case of Doe, ex dem. Hitchings, v. Lewis (Burr. Rep. 614,) is in point. That was an action of ejectment, brought by a tenant on his lease; and the defendant set up a judgment by default, in ejectment, in bar; and it was contended, that an affidavit that a half year's rent was due, and no distress to be found, ought to have been produced, as required by the statute, previous to a recovery. There was an acquiescence under the judgment for near 20 years, and it was held that it was not necessary to produce the affidavit; but that the judgment was to be presumed regular. Here there has been an acquiescence for near 14 years. It was stated as a fact, in that case, that the ejectment was under the statute. Here that fact is to be presumed, for the defendant insisted upon it, at the trial, and produced the judgment; and the plaintiff did not deny the allegation, that it was an ejectment under the statute, for non-payment of rent; but objected merely that the affidavit of no sufficient distress being found ought to have been produced. Whether it was a proceeding under the statute, or at common law, VOL. III. 48 Jackson v. Wilson. is immaterial. We must presume that the judgment was regular, and that every thing necessary to entitle the landlord to recover, had been performed. It follows, that we must consider the necessary affidavit as having been filed, or, if otherwise, that all the requisites attending an [*297] actual entry at *common law were previously complied with. This presumption is strengthened by the fact, that the judgment has stood near 14 years, and remains in full force. It would be unreasonable, and extremely inconvenient, to require the landlord, at this time, to prove all the pre-requisites to a right of recovery in the first action. We are opinion, therefore, that the motion ought to be denied. Rule refused.(a) (a) See Till. Adams on Ej. ed. 1846, p. 162, 172, and stat. 4, Geo. II. ch. 28, cited there; 2 Rev. Stats. of New York, p. 505, § 30, 31; 1 Wheaton Selwyn, N. P. ed. 1848, 732, 733; 2 Steph. N. P. 1478-1482: 2 Archbold's N. P. 413-415; 2 Roscoe, ac. rel. R. P. 537-539. See Jackson, ex dem. Van Rennsalaer v. Collins, 11 Johnson, 1; The Same v. Hogeboom, id. 163; Jackson, ex dem. Grose v. Demarest, 2 Caines R. 382. The statute of 4 Geo. 11. ch. 28, is not in force in Pennsylvania, and the common law with respect to re-entry for non-payment of rent still prevails. (M'Cormick v. Connell, 6 Serg. & Rawle, 151.) |