In an action for money had and received, &c. brought by B. against the
company, to recover back the 465 dollars, and also the dividends, after the
20th of January, 1797; it was held that the action would lie, and that the
plaintiff was entitled to recover the 465 dollars paid by him, but not the
dividends received by the defendants, prior to the 20th of January, 1798,
as the defendants had an equitable lien on that money, in their hands, to
pay the note of A., which was actually due to them, before they had no-
tice of the assignment to B.
Bates v. The New York Ins. Co., 238, 559.
Cases and authorities, 243, n. (a.)
3. A note was lost or mislaid, and A. the maker having paid the amount to B.
the holder, took his bond of indemnity against the note, &c., and after-
wards, A. having a demand against B. for money, B. refused to pay, with-
out first deducting the amount of the note, to which A. consented and
took the balance, and a receipt from B. for the amount of the note as due,
and afterwards brought an action against B. on his bond of indemnity. It
was held that the second payment being voluntary on the part of A. and
no fraud alleged on the part of B., no action could be maintained against
him on the bond. Bazen v. Roget, 87.
Cases and authorities on voluntary payments, 89, n. (a) to Bazen v. Roget.
4. A deliberate acknowledgment of a note being due ought to conclude the
party, unless strong evidence be offered to show a mistake.
Bazen v. Roget, Rad. Mss. 536.
5. Upon plea of nil debet to debt on a judgment of a neighboring state.
Rush v. Cobbett, 500. S. C. vol. 2, p. 256.
Cases and authorities, 457, n. (a.)
Executors of Van Rensselaer v. Executors of Platner, 475. S. C. vol. 2,
p. 17.
Devisees of Van Rensselaer v. Ex'rs of Platner, 475. S. C. vol. 2, p. 24.
Ex'rs of Van Rensselaer v. Ex'rs of Platner, 475. S. C. vol. 2, p. 17.
IV. Commencement of-what.
6. The issuing of the writ in a cause is, for every material purpose, the com-
mencement of the suit. Carpenter v. Butterfield, 145.
Cases and authorities, 146, n. (a.)
7. Under the Code of Procedure of the State of New York, 116-1, 146-2.
V. Right of, not divested after commencement, except by
some act of the Plaintiff.
8. Where a right of action is vested, and an action commenced, nothing can
deprive the plaintiff of his right to recover, except some act done by him-
self in relation to that right. Carpenter v. Butterfield, 145.
Confessions of the wife connected with other proof and not frandulently
made. Doe v. Roe, 424. S. C. vol. 1, p. 25. See also id. 26, n. (a.)
I. On Motion.
1. For Commission.
a. May be made by a third person.
b. What it must contain.
2. To found motion for mandamus-what it should contain.
3. To change the Venue.
a. May be made by Defendant's Attorney.
b. What it must contain.
4. Supplementary Affidavit.
5. Counter Affidavit.
1. For Commission.
a. May be made by a third person.
Van Demar v. Van Zandt, 484. S. C. nom., Demar and Wife v. Van Zandt,
vol. 2, p. 69.
Franklin v. United Ins. Co., 484, 504. S. C. vol. 2, p. 68, 285.
2. To found motion for mandamus-what it should contain.
Matter of Gephard, 434. S. C. vol. 1, p. 134. See also vol. 2, p. 217–62,
63, § 47.
3. To change the Venue.
a. May be made by Defendant's Attorney.
Scott v. Gibbs, 472. S. C. vol. 2, p. 116.
Id. and Wheaton v. Slosson.
See Infra, 6.
4. Supplementary Affidavit.
Cannot be read in support of a motion.
Campbell v. Grover, 468. S. C. nom., Campbell v. Grover, vol. 2, p. 105.
5. Counter Affidavit.
a. It may be read without the copy having been served. Id.
b. On motion to charge the venue what it ought to contain.
Scott v. Gibbs, 472. S. C. vol. 2, p. 116.
I. The Contract of Agency.
II. Lien of Insurance Broker on Policy.
III. Ratification of acts of, by assent.
IV. Right of Retainer.
V. When personally liable.
Mistake, misapprehension, or negligence.
I. The Contract of Agency.
1. 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 ves-
sel 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 in-
terest 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
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. Steinback v. Rhinelander and others, 268, 565. Same v.
Church, 268, 554.
2. The principle of these cases questioned.
Cases and authorities, 282, n. (a.)
II. Lien of Insurance Broker on Policy.
3. An agent who effects a policy in the name and for the benefit of another,
cannot transfer or pledge the policy as a security for his private debt; the
creditor who takes it must, from the face of the policy, have notice of the
interest of the assured, and if he receives money upon it must refund, ex-
cept as to the mere commissions of the agent.
Foster v. Hoyt & Tom, 510. S. C. vol. 2, p. 327.
III. Ratification of acts of, by assent.
Towle v. Stevenson, 435. S. C. vol. 1, p. 110.
4. A person acting as agent, and having guaranteed the payment of a note
of his principal, is entitled to retain the money of his principal to refund
to himself. Armstrong & Barnewall v. Gilchrist, 607. S. C. vol. 2. 424,
V. When personally liable.
Mistake, misapprehension, or negligence.
5. Where the insured employed a factor or agent to settle with the insurers
for a total loss, and an abandonment was duly made, and the agent, after-
wards, through mistake or misapprehension of a letter of the insured, or
from negligence, adjusted the claim with the insurers, as an average loss,
at 20 per cent., and cancelled the policy; it was held, that the agent was
responsible for the whole amount being considered as substituted in the
place of the insurers. Rundle v. Moore & Pollock, 36, 530.
I. Dower of, in lands held before July 4, 1776.
II. Descent of Property, if acquired previous to the
Revolution.
IV. Naturalization, effect of.
V. The objection of Alienism not favored.
VI. Right of Expatriation.
I. Dower of, in lands held before July 4, 1776.
1. In dower. The demandant had always been a British subject and resided
in Ireland: her husband an American before the revolution; adjudged that
she might recover dower on all the lands whereof her husband was seised
before the 4th of July, 1776, and no other. Kelly v. Harrison, 476.
II. Descent of Property, if acquired previous to the Rev-
olution.
2. The American revolution worked no forfeiture of previously vested rights
in lands. Where a British subject died seised of lands in this state, in 1752,
leaving daughters in England, who married British subjects, and neither
they, nor their wives, were American citizens; it was held that the bus-
bands of the heiresses might be joined in a demise with their wives, in or-
der to maintain an action of ejectment; and that even if the marriages
were subsequent to the American revolution, such marriages with aliens
would not impair the rights of the wives, nor prevent the full employment
of the property, according to the laws of the marriage state; especially,
after the provision contained in the ninth article of the treaty of amity and
commerce with Great Britain, of the 9th November, 1794.
Though in case of a purchase, the law will recognize the title of an alien in
lands, until office found; yet in case of a descent, the law takes no notice
of an alien heir, on whom, therefore, the inheritance is not cast. But
where the title to land in this state was acquired by a British subject, prior
to the American revolution, it seems, that the right of such British subject
to transmit the same, by descent, to an heir, in esse, at the time of the
revolution, continued unaltered and unimpaired; the case of a revolution
or division of an empire, being an exception to the general rule of law on
this subject. The objection of alienism is not to be favored.
Jackson, ex dem. Gansevoort v. Lunn, 109, 539.
3. No title vests in the state till office found.
Jackson, ex dem. Gansevoort v. Lunn, 109, 539. The Same, ex dem. Cul-
verhouse v. Beach, 467.
IV. Naturalization, effect of.
4. A naturalization retrospects and confirms a former title.
Jackson, ex dem. Culverhouse v. Beach, 467. See S. C. vol. 1, p. 399.
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