III. Limitation of demands in.
4. An account which accrued before the war during which the parties were
scattered, &c., and notwithstanding several circumstances accounting for
the delay, was denied to be opened on the principle that the demand was
old and stale, not as barred by the statute of limitations, which was not
pleaded. Justices Benson and Kent, and a few others contra. Radcliff, J.
would also have been contra, but was absent at the March Circuit in New
York. Ray v. Bogert, 608. See vol. 2, p. 432.
IV. Relief of Parties in pari delicto.
5. A bill to be relieved against a judgment in the Supreme Court, on a note
given for Susquehanna lands, was dismissed in chancery and the decree
affirmed here, by some on the ground of pari delicto, and neither party to
be relieved in equity, and by others that the consideration was good. On
the latter point, Justices Benson, Kent and Radcliff, were contra, and they
went on the first point, that of an illegal consideration. An outstanding
note for the same consideration, was refused to be enjoined. The opinion
of the majority as to the validity of the consideration, could not be ascer-
tained. Dole v. Woodworth, 607.
6 The answer of a defendant in chancery is received as true, unless dis-
proved, and he swearing to a compromise with the assent of the plaintiffs,
his principals, it must prevail. Armstrong v. Gilchrist, 607.
A ship was let to freight, for a voyage from New York to Gibraltar, Cadiz and
Malaga, all or either of the said ports, at the option of the affreighters, and
as they or their assigns might direct; and they were allowed 40 working
days for unloading and loading in Europe, and they covenanted, that in
case the ship should, by the order or through any default, neglect or delay
of them, their factors or assigns, be detained longer than 40 working days,
for unloading the cargo in Europe, to commence whenever she was ready
to deliver her cargo, at any of the said ports, and to continue until she
should depart from thence, they would pay the shipowner 51. 10s. sterling
per day, for demurrage.
The ship on her voyage was taken by a British cruiser, and carried into Gibral-
tar, the 16th May, and was released, and on the 5th June, sailed for Cadiz,
where she arrived the 10th June, and performed a quarantine of 7 days.
On the 21st June, the captain applied to the custom house, but was refused
an entry, on the ground that she had previously been at a British port
;
but she was under no restraint of the government, and might have left Ca-
diz at any time. After repeated applications by the supercargo, permission
was given to the ship to enter on the 26th August, and she then landed
her cargo, and took in another, with which she arrived at New York on the
28th September.
In an action brought by the shipowner against the affreighters, for demur-
rage, it was held, that the prohibition to enter at Cadiz, being permanent
in its nature, and the defendants having an option to go to another port,
and the ship at liberty to sail when she pleased, the detention, afterwards,
was at the instance and for the benefit of the defendants, who were there-
fore, liable for the demurrage, after the expiration of the 40 working days,
to commence from the 21st June, when the captain was refused permission
to enter. Duff v. Lawrence, 162. See 547, 598.
See BILLS OF EXCHANGE, PROMISSORY NOTES AND
Petition to remove a cause to the court of the United States, refused, the de-
fendant being naturalized here in 1784, afterwards, in 1795, became the
Spanish Consul, and took the oath of allegiance to the King of Spain, but
continues to reside here. Fish v. Stoughton, 522. See vol. 2, p. 407.
See ALIEN. INSURANCE.
COLUMBIA TURNPIKE COMPANY.
Where an inquisition taken under the second section of the act, amending
the act to establish the Columbia Turnpike Company, passed March 28,
1700, (sess. 23,) omitted to state a disagreement between the owner of the
lands mentioned, and the company, and that the judge who appointed the
commissioners was not interested, &c.. it was held defective and quashed.
Where a special power is granted by statute affecting the property of indi-
viduals, it must be strictly pursued; and it must appear on the face of the
proceedings, that the directions of the statute have been strictly observed.
Gilbert v. The Columbia Turnpike Co., 107, 541.
COMMISSION TO EXAMINE WITNESSES.
See PRACTICE.
I. Power of Court over.
II. Libel on Commissioner of Bankruptcy.
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 definitely, 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.
Learned v. Duval, 141, 542.
II. Libel on Commissioner of Bankruptcy.
See LIBEL.
I. Condition precedent-what is not.
II. Waiver of Forfeiture of.
I. Condition precedent—what is not.
1. A devise to the use of another till Thomas shall be of age, to whom the
estate was previously devised, after the death of his mother, is not a
condition precedent to the vesting of the estate in Thomas. It vested on
the death of the mother. Jackson, ex dem. Beach v. Durland, 510.
See vol. 2, p. 314.
II. Waiver of Forfeiture of.
2. No parol assent or silent acquiescence withont an act by the lessor will
amount to a waiver of the forfeiture of a condition.
Jackson, ex dem. Bronk v. Crysler, 436. See vol. I, p. 125, 126, n. (a.)
CONSIGNOR AND CONSIGNEE.
Liabilities of Consignee.
1. Where a vessel, on her arrival in the port of New York, is ordered to per-
form quarantine and the cargo is landed and stored at the quarantine
ground, the shipper or consignee of the goods is bound to pay the expense
of landing and storage. Rice v. Clendening & Adams, 183. See 555.
Authorities, 184, n. (a.)
2. A master and consignee of goods shipped to be sold at Bourdeaux, not lia-
ble to the owner when he acted bona fide, and could not sell in a reasona-
ble time. If he were guilty of fraud or crassa negligentia, he would be
liable. Lawler v. Keaguick, 439. See vol. 1, p. 174.
Where there are several actions on one policy, the court will grant impar-
lances until the plaintiffs enter into the consolidation rule, and the English
consolidation rule is intended. No favor (as to examine witnesses de bene
esse,) will be granted till this be done. Classon v. Church, 422.
On an indictment for a conspiracy the conviction of one, when another who
is charged to have conspired with him is dead, and not convicted, is suffi-
cient as to him.
A special verdict offered, being wholly incompetent, was properly refused.
The court may dismiss a jury in a case of misdemeanor, where it appears
after a full experiment that they cannot agree.
The People v. Olcott, 512. See vol. 2, p. 301.
CONSTITUTION OF THE UNITED STATES.
The prohibition in the 10th section of the first article of the constitution of
the United States, does not extend to the municipal regulations of the
present states, which modify the process and proceedings relative to the
recovery of debts, as establishing jail liberties, &c.
Holmes v. Lansing, 73. See 446, 535.
Cases and authorities, 75, n. (b), 76, n. (c.)
Bringing Suit in the name of another.
It is a contempt of the process of the court to bring a suit in the name of an-
other without his privity or consent; and in this case an attachment was
granted against a person for so doing, and for costs.
Butterworth v. Stagg, 509. See vol. 2, p. 291.
1. General division.
2. Optional.
II. Consideration.
III. Construction.
IV. Rescission.
V. Lex loci not applicable to remedy.
1. All contracts are by specialty or parol; and if written, and not sealed,
they are parol agreements. Ballard v. Walker, 60-3, 532.
2. A contract may be optional as to one party, and obligatory on the other.
Thus where A. agreed to deliver to B. by the 1st of May, from 700 to 1000
barrels of meal, for which B. agreed to pay on delivery, at the rate of six
dollars per barrel, and A. delivered 700 barrels, and also before the day
tendered to B. 300 barrels more, to make up the 1000 barrels, which B. re-
fused; it was held that B. was bound to receive and pay for the whole
1000 barrels; the delivery of any quantity between 700 and 1000 barrels,
being at the option of A. only, and for his benefit.
Disborough v. Neilson, 81, 555. Cases and authorities, 82, n. (a.)
3. An agreement for the purchase of a negro boy, with a privilege to the
purchaser to return him within a certain time, is valid.
Giles v. Bradley, 500. See vol. 2, p. 256, n. (a.)
4. Parol-not necessary to be expressed-may be proved aliunde, 65, n. (a.)
See Supra, I. 2.
5. A. signed a written agreement, reciting that whereas, he had sold to B. a
lot of land, who had agreed to pay him £300 by a certain day, and to exe-
cute a bond and mortgage to secure the payment; A. therefore, promised
and agreed to deliver to B. a good and sufficient deed for the land, on de-
livery of the bond and mortgage by B.
In an action brought by B. against A., on this agreement, it was held, that
this being a mutual agreement for the sale and purchase, there was a valid
consideration.
And that being a writing signed by the party to be charged, it was sufficient
under the statute of frauds.
But four years having elapsed from the date of the agreement, before B. gave
notice to A. that he should insist on the agreement, and five years before
he tendered a performance, on his part, it was presumed that the parties
had rescinded the contract; and though A. had, within a year after the
contract, sold and conveyed the land to C., so as to incapacitate himself to
perform his agreement with B., yet that circumstance was not held suffi-
cient to control the legal presumption, that the contract was rescinded.
Ballard v. Walker, 60-3, 532. Cases and authorities, 65, n. (b.)
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