J. Vandervoort V. C. Infurance Co. ALBANY, left open, at the election of the assured, according to cirAuguft, 1804 cumstances. It remains to be examined, whether this and another, writing was competent testimony to explain the policy. It is well observed by justice Blackstone, in the case of Preston v. Merceau, that courts should be very cautious in admitting any evidence to supply or explain written contracts, and that they never ought to be suffered, so as to contradict or explain away an explicit agreement. In the case of Moses v. Ansell, the court said, no parol evidence is admissible to substantially vary, alter or impugn a written agreement; neither is it admissible to abate or extend a deed. No ambiguity appears on the face of this policy; the words are intelligible, without any aid dehors the instrument. The testimony offered is calculated materially to alter and restrain the policy. As it now stands, the assured had undoubtedly a right to go to any two ports on the coast of Brazil, at their election. If the previous communicaiton on the subject of the voyage, is to control the policy, the assured would be restricted to two ports, within four or five hours sail of each other. This, considering the nature of the trade they were engaged in, might very materially affect, if not in a great measure defeat the voyage; so far as this writing would tend to estab 'lish fraud in the assured, the underwriters have had the benefit of it. It was for this purpose submitted to the jury, and their decision upon it, ought, I think, to be final and conclusive. I see no marks of fraud to taint the contract: the reduction of the premium from 334 to 271 per cent. ap. pears to have been occasioned by reason of the assured's taking on themselves the risk of seizure in port. This, in a forced trade like the present, was a very great diminution of the risk to be borne by the underwriters. The voyage contemplated by the assured, might have been to Rio Janeiro, and St. Catharines, as stated by Mr. Blagge: still they might not wish to be restricted to those places, otherwise it is difficult to conceive why they were not inserted in the policy. They choose rather to have a discretion left them, as to the ports, and to which the underwriters must have assented, by subscribing the policy in its present terms.— James Watson, and the other witnesses who were examined respecting the premium, do not say that 27 per ALBANY, August, 1804. and another, V. C. Infurance Co. cent. was not an adequate premium for the voyage insured. They only speak of a comparative difference of premium, between two voyages, to neither of which were the assured J. Vandervoort restricted by this policy. For it has not been pretended by the underwriters that they were bound to go either to Rio Janeiro, or St. Catharines. The argument of this case, has been accompanied with a motion for a new trial, on the ground of the discovery of new testimony. The testimony alluded to, is said to be a copy of the proceedings and condemnation at Para, against this vessel and cargo. In order to grant a new trial on this ground, it ought to appear, that the testimony has been discovered since the last trial; or, that no laches is imputable to the party, and that the testimony is material. In the present case there are numerous objections against granting the application. It does not appear from the affidavit, that this testimony has been discovered since the last trial, but only that it arrived in NewYork since that time. From the nature of the evidence, it must have been discovered as soon as the cause of the loss was known, and of course there must have been either a want of due diligence in procuring it, or, if sufficient reasons for the delay could have been shewn, application ought to have been made to postpone the former trial. Independent of this circumstance, however, there are objections to the admissibility of the testimony offered, it not being duly authenticated. It purports to come through the secretary of state, for foreign affairs, of the kingdom of Portugal. If it be, as has been contended, a regulation of the government of Portugal, that all judgments and decrees rendered at Para, are transmitted to Lisbon, and registered in the department of state. That regulation should have been shewn in some authentic way, and the document in question would then appear to come through the proper channel, and, if duly authenticated, might be competent prima facie evidence of what it contains. But nothing appears to shew that such is the regulation of the mother country, with her colony. This document cannot be considered an exemplification of a judgment. That should be under the great seal; this is only under the seal of arms of the secretary of state: neither is it a sworn copy of the original, and it cannot be received as an office copy, it not ALBANY, James Jackson V. J. F. Prevost. August 1804. appearing that the Secretary of State has officially the custody of records of this description. The translation of this document from the Portuguese into the English language, ought to have been made on oath; interpreters are always sworn. The translation of a consul, not on oath, can have no greater validity, than that of any other respectable man. But laying aside all objections as to the manner in which this document is authenticated, I cannot consider it material testimony. The purposes for which it is offered are-1st. to shew that this vessel was seized in port,and so, the loss not within the risks assumed by the underwriters; and 2dly. that she had on board contraband goods, contrary to the warranty of the assured. In answer to the first, it is expressly admitted in the case, that she was seized at sea, off the mouth of the river Amazon. This admission ought to conclude the party, on this point. In answer to the second, the warranty in the policy must. be understood, to relate to goods contrabaad of war, and not as against the laws of Portugal; for it was well understood between the parties, that the voyage insured was a forced and illicit trade, contrary to such laws. The contraband goods, mentioned in the condemnation, must have been understood to be so, in reference only to the laws of Portugal. The ground of the sentence is stated to be, because the captain advisedly and deliberately precipitated himself into port to trade, and thereby subjected himself to the penalty of the law of the 18th March, 1605. The opinion of the court, therefore is, that a new trial ought not to be granted, and that the plaintiffs have judg ment on the verdict of the jury. Lands descend Ing between in- James Jackson, ex dem. Joshua Pell, against Augustine James Frederick Prevost. dictment and conviction are forfeited under. the act of Octo ber. 1779, against THIS case was submitted without argument, and came perfons adhering before the court, on a special verdict, containing substan to the enemies of this tate. If a mar be known tially the following facts. b; the addition of junior to his nam, an indict Joshua Pell the elder, of the manor of Pelham, in the county of West-Chester, yeoman, the father of the lessor without that ad- of the plaintiff, was, in his life time seised in fee of the onclusive that premises in question; and being so seised, he died on ment against him dition, is not ALBANY, August 1804. James Jackfon V. he was meant, it fact on which a en at the trial. the 31st day of July, 1781, leaving the lessor of the plaintiff his eldest son and heir at law. On the 10th day of November, 1780, at a court of general sessions of the peace, held for the county of West-Chester, an indict- J. F. Prevost. ment was found against Joshua Pell, of the manor of he was not the Pelham, in the county of West-Chester, yeoman, under perfon indicted, if found by a fpethe act of the legislature of this state, passed the 22d cial verdict, that October, 1779, entitled "An act for the forfeiture and being matter of sale of the estates of persons who have adhered to the collateral issue enemies of this state, and for declaring the sovereignty of ought to be tak the people of this state, in respect to all property within the same." In October, 1782, judgment was pronounced against Joshua Pell, now or late of the manor of Pelham, in the county of Westchester, yeoman, by default, he having been duly notified to appear, and traverse the said indictment, pursuant to the directions of the act aforesaid. This judgment was signed on the 15th day of July, 1783 it was found Joshua Pell, the lessor of the plaintiff, and not Joshua Pell, the elder, was meant and intended by the said indictment and judgment. The lessor of the plaintiff, always distinguishing himself as Joshua Pell, jun. The title of the state, to the premises in question, was in due form of law conveyed to the defendant; on whom Joshua Pell, the lessor of the plaintiff, entered, after the death of the said Joshua Pell, the elder, and became seised thereof, as the law requires. Per curiam, delivered by Thompson, J. It is submitted to this court to determine, whether, from the facts found by the special verdict, the plaintiff is entitled to recover?— Two questions appear to present themselves: 1st. Whether the judgment must be considered as standing against Joshua Pell, the elder, or against Joshua Pell, the lessor of the plaintiff? and 2d. The legal operation of that judgment, on the premises in question. I think the judgment must be considered as standing against the lessor of the plaintiff. It is expressly found, by the special verdict, that he was the person intended, and the only variance complained of, is the omission of the addition of junior to his name. Notice was given, pursuant to the directions of the act, to appear and traverse the indictment; this was enough to put the Y ALBANY, August 1804. V. lessor of the plaintiff on enquiry. He should have appeared and traversed the indictment, and then made the objection. C. and J. Selden It is now too late. In the case of Jackson ex dem' St. James Hickock. Croix, v. C. & I. Sands, decided in this court, in April term 1801, proceedings under this statute were considered ana logous to convictions by bill of attainder, and with respect to the description of the person convicted, were construed with more liberality than ordinary judicial proceedings; that the identity of the person attainted, was matter of fact, triable in a collateral issue, and that an incomplete description of him was not fatal. The finding of the jury, therefore, in the present case, must be conclusive, as to the iden tity of the person. The next question, then, will be as to the operation of such judgment, upon the premises in question. It appears that the lessor of the plaintiff derived his title by descent from his father, who died on the 31st day of July, 1801. The indictment was found in November 1780, but judgment was not rendered until the year 1782, which was subsequent to the time when the lessor of the plaintiff acquired his title; and the act under which these proceedings were had, declares the forfeiture to attach upon all the estate, which the person had at the time of conviction. By this conviction, then, the premises became forfeited, and the title to the same vested in the people of this state, which title has since been in due form of law, conveyed to the defendant. I am, therefore, of opinion, that the defendant is entitled to judgment. A sale of the proportion of one advice of all the others severs Charles and Joseph Selden, against James Hickock. TROVER for five hundred bushels of Turks Island salt. of joint owners The defendant and two others were joint owners of a cargo of a cargo, with the consent and of sixteen hundred bushels of salt, one thousand only of which was that of Turks Island. The two other partners, being unathe tenancy in ble to pay their proportion of duties and charges, by the advice the vendee may and consent of the defendant,sold their shares to the plaintiffs. for it against the On a refusal to deliver after payment made, the present ether partners. common, and maintain trover action was brought, and a verdict having been found for the plaintiffs, the application was to set it aside, and order a non-suit to be entered. Allen for the defendant. The plaintiffs and defendant |