it into this court, for trial, on the return day of the fubpoena, ALBANY, which would have been fufficient. The greatest difficulty arifes from the defendant's denial, that a fubpoena was fhewn to him, at the time of leaving the ticket. But as the officer who ferved it, fwears pofitively to this fact, we think fome further explanation neceffary. The defendant does not fay, that a fubpoena was at no time fhewn to him, nor that this was the only ticket he received. It is probable the officer, on recollecting the mistake, may have returned, and hewn it, or that he made an entire new fervice, or that fomething may have paffed rendering the exhibition of a fubpoena unneceffary. At any rate, we think this matter ought to be further inquired into, and that therefore the rule for an attachment be made abfolute. Feb. 1805. Jackfon V. Hakes Jackfon ex dem. Hiram Clowes against Jeffe WOODWORTH, attorney general, moved to fet afide the judgment and execution in this caufe for irregularity, on affidavits, the facts of which were fhortly thefe. The defendant, being a tenant, abfconded whilft rent was in arrear, upon which the leffor of the plaintiff took poffeffion of the premises, and when thus in perfect enjoyment of them, brought an ejectment under the 23d. fection of the act "concerning diftreffes &c.*" in order to bar the tenant's right under the leafe, as if the premises had been then vacant. Foote, district attorney, strongly contended, that though the leffor of the plaintiff was then actually in the occupation of the lands, they were, even as to him, in the eye of the law regarded as vacant, because the only poffeffion known to the law, was that of the tenant. That if this were not fo, the landlord of an abfconding tenant, would be in a worse fituation when in poffeffion of the demifed property, than when out of poffeffion; because if he was out of poffeffion, he might, after a fuit and lapfe of fix months, get into the poffeffion and keep it; but if in poffeffion, he was never fure of retaining it, as the tenant might, at any time turn him out. From thefe confiderations he infifted, that the only mode of barring the intereft of the leffee was by adopting fuch proceedings, as he had in the prefent case advised. That they were grounded ALBANY, Sayer V. Finck. An opinion attorney, that a on an affidavit which was framed, with the caution neceffary, to comport with the peculiar fituation of the leffor of the plaintiff, who could not swear there was no fufficient diftrefs on the premises, because his own cattle were there, but that there was no fufficient diftrefs belonging to the tenant. Kent C. J. Take the effect of your motion with cofts. It is abfurd to fuftain a fuit in fuch a cafe. It is against the whole theory of the action. The proceedings are an absolute nullity. John Sayer against John Finck. HOPKINS moved to fet afide the inqueft taken in this of a plaintiff's caufe at the laft fittings, in New-York, on an affidavit by two caufe on the perfons, that the debt for which the action was brought had day docket will been paid, and on another affidavit by the defendant's attoron, will not, in ney, stating, that he did not attend when the cause was called not be brought future, be a rea taken in the ab fon for fetting on, because, from a converfation with the partner of the afide an inqueft, plaintiff's attorney, and who he thought was attorney also for fence of the de- the plaintiff, he was led to imagine the trial could not be had fendant's attor- on that day, as there were eighteen prior caufes, on the day companied by a docket, and that the plaintiff's attorney himself would not atftrong affidavit tend. ney, though ac of merits not withstanding it was allowed in this cafe. Per curiam. Let the inquest be fet afide, on payment of all cofts. The court grant this only under the peculiar circumstances of the cafe. It appears that the defendant's attorney thought he was converfing with a perfon, who was acting as attorney for the plaintiff. This belief might eafily be induced, from this circumftance, that the attorney on record, and the perfon spoken with were in partnership. It was, however, but an opinion of the adverse attorney, that the cause would not be heard. We fhall, in future, expect more explicit reafons, for thinking a caufe will not be brought on. The affidavit of merits is very ftrong. Taking this, together with the mis-apprehenfion of the defendant's attorney, that the partner of the plaintiff's attorney, was abfolutely concerned in the fuit, are the grounds of our prefent determination, Jofeph Winter against the Prefident and Directors of the Bank of New-York. be in ALBANY, Winter V. Bank of New- If two perfons enter a bank at the fame time, quef- and the other fhip- latter of whom one with money without, the cafhier it is to circumstance the alone, without ASSUMPSIT to recover one thousand dollars, had and received by the defendants, to the ufe of the plaintiff. From the evidence, at the trial, thefe appeared to fubftance, the circumftances of the cafe. The money in tion was one of feveral confignments to different people, ped under regular bills of lading, from New-Orleans to New- informs the York. On the captain's arrival, as the confignees did not be depofited on come for their property, he put the whole into a box, in order his account, this to depofite in the bank, but when he got there he found hours of bufinefs over, and the outer doors juft closed. this moment, one Arnold, with whom he had formerly been acquainted, stepped up to him, and told him if he wanted to go into the bank, he might ftill enter at the back door, and that he would fhew him the way. This propofal being accepted, Arnold, followed by the captain with the cash, proceeded to the back door, and went into the bank. So foon as they had entered, Arnold, leaving the mafter with his money, pushed on to a further part of the building, where the cafhier was fitting, and informed him, in fuch a manner, however, as not to be heard by the captain of the veffel, that he had brought about 4000 dollars to depofite, which he begged to be received. This being confented to, he then requested to have given up to him, and obtained, a note that was over due, his check for 1600 dollars certified to be good, another note, under proteft, credited to his account as paid, and a note of one Armstrong's, for 1400 dollars, depofited as a collateral fecurity for one of his own for 750 dollars. Having accomplifhed his object, he took his leave. At any acts of the While these things were tranfacting with the cafhier, the captain was inquiring of the porter, and one of the clerks, whether his cash could not, though after banking hours, be received for the night. Being anfwered in the affirmative, he asked at what hour he could come to count it; and upon being informed the next morning at ten o'clock, he affifted. the porter and clerk in removing it into a back room, where he left it, and went away. On returning the morning after, he demanded his money, which was delivered to him, when he counted it out, and immediately afterwards inquired for the any arife. Feb. 1805. Winter V. ALBANY, cashier, to depofite it with him, on account of the confignees. On going to him an explanation took place, which ended by the captain's fhewing the bills of lading, and the bank's refufBank of New- ing to pay the money to the confignees, in confequence of which the plaintiff commenced the prefent action, and obtained a verdict. The defendants now applied to fet it aside, as contrary to evidence. York. The only queftion was, whether the conduct of the captain was, from the teftimony, fuch as to fanction the fraud of Arnold, and thereby throw the lofs on the confignees, in capacity of whofe agent he then acted? The arguments of counsel being directed, only to fhew how the balance of evidence would turn, and that being accurately weighed in the opinion of the court, it is unneceffary to do more than state the decifion, which was delivered by Spencer J. After a verdict for the plaintiff, under an un exceptionable charge from the judge who prefided, the court are called upon to fet afide this verdict, as against the weight of evidence. There is no imputation of fraud, or defign, either in the captain, Living, or the officers of the bank. But the question is, who produced the miftake? It is a principle, 2 Wafh. Rep. not controverted, that where one of two innocent perfons muft fuffer by the act of a third, he, who has enabled fuch third perfon to occafion the loss, must fuftain it. Testing the evidence, by this equitable principle, I proceed to examine the conduct of Captain Living; for, if there has been no culpability on his part, the plaintiff is entitled to recover. 245 He states, that not having been called on by the confignees of the money, which he had brought from New-Orleans, he thought it beft to depofite it in the bank; he arrived there, after it was clofed, and there met with Arnold, by whofe directions, he went to the rear part of the bank, met with the porter and one of the clerks, to whom he communicated his wifhes to depofite the money, and after fome converfation it was left in the bank, for fafe keeping. Captain Living observing, that he fhould come the next morning, at the opening of the bank, and depofite it. Arnold, it feems, informed the porter of the bank, that it was his money, and this claim was twice repeated in the prefence of Captain Living. If he had heard this converfation, and remained filent, it would have brought him within the rule of enabling a third person to occafion the lofs. But he says, that owing to deafness he did not hear what paffed. It has been urged, that this infirmity of Cap Feb. 1805. Scriba V. tain Living, ought to have rendered him more circumfpect, ALBANY, and, as he must have feen Arnold converfing with the porter, he should have been more explicit, having been warned that Graves and Arnold was a dangerous man. It is, I think, not a correct pofition, that Living was blamable in not contradicting what M. I. Company. he did not hear, and could not have imagined; the infirmity of deafnefs, instead of being a misfortune, would favor of culpability, and, inafmuch as Living was the bearer of the money, as he never enabled Arnold to occafion the lofs, and the omiflion arofe from the officers of the bank in not afking him if this money was Arnold's, and as the whole merits of the cafe have been confidered by a jury, who have decided in favor of the plaintiff, we do not think it a verdict against the weight of evidence, and therefore refufe the motion for a new trial. John Boonen Graves and George Scriba againft the Marine Infurance Company. ASSUMPSIT, for money had and received, to recover back the amount of premium, paid for insurance. for If an infurance be on a return cargo, begin on board the intermediate The facts were these. The plaintiffs fhipped ning the advenLa Vera Cruz, a cargo, fully covered by other policies, in the ture "from, and ufual form, and then effected the one, on which the prefent immediately action was brought, upon the return cargo, "beginning the loading thereof "adventure upon the faid goods and merchandizes, from, and faid veffel," "immediately following the loading thereof, on board of the faid the port of deftination, with "veffel, at La Vera Cruz, and fo &c. until the faid goods liberty to touch "shall be fafely landed at New-York," with liberty to touch and trade at two and trade at New-Orleans, or the Havannah. On the outward ports, the policy voyage the veffel was captured, carried into Jamaica, detained will not cover there two months, and liberated, and arrived at her place of cargo from the destination, where he was not permitted to discharge her port of deftinaoutward lading, or even remain within the port, although in the intermediate diftrefs, from her mafts being fprung, and fhort of provifions the veffel was ports, though and water. Thus circumftanced, fhe was, with her original obliged to carry lading on board, and without taking in any thing in addition fequence of beto it, compelled to depart for the neareft port fhe could ing refufed permake. She accordingly failed for New-Orleans, and there that of her defloaded with a cargo for New-York, to the full amount of X x the outward tion to one of it there, in con miffion to enter the tination; premium there |