NEW-YORK, case peculiar in its circumstances, and *cannot be considered as May, 1818. establishing any general rule. The verdict must be set aside, and a new trial awarded, with costs, to abide the event of the suit. WARNER V. BOOGE. New trial granted. [* 233 ] . Where a party in a suit becomes entitled costs *WARNER against BooGE. IN ERROR, on certiorari to a justice's Court. The return, which was very obscure, to the certiorari in this to costs from the case, stated, that the ground of the action of the defendant in opposite party, for opposing a error, was a bill of costs for resisting a motion for judgment, motion, who the as in case of nonsuit, in this Court, in the case of Booge v. having Warner, taxed by the recorder of Hudson at 27 dollars and 6 promises to pay cents. The return further, stated, that the defendant below, is the plaintiff in error, undertook and promised to pay the bill, on and promised to confess a judgment for the amount. The jussideration, and tice gave judgment for the plaintiff below for 25 dollars. been taxed) the bill, the promise founded sufficient con will support an action. Per Curiam. The only error alleged as a ground for rever sing this judgment, is the want of consideration to support the promise. If the defendant in the Court below was a stranger to the suit in which these costs accrued, the objection would be well taken; but he appears to be a party in the cause, and we must take the promise proved, to have been made in reference to the very bill in question. The return stated, that it was proved that the defendant did undertake and promise to pay the bill. This was an admission that the costs were properly taxed against him, and he being a party in the suit, there was a sufficient consideration to support the promise. Judgment affirmed. demand, or in abatement of the damages. That where there is an opportunity *JACKSON, ex dem. BROWN and others, against M'VEY. NEW-YORK, JACKSON V. M'VEY. Where a per THIS was an action of ejectment for the recovery of lands in the town of Wallkill, in the county of Orange. The cause son acting in rewas tried before Mr. J. Platt, at the Orange circuit, in September. 1816. lation to land as executor, and, consistently with permits another to enter upon land, he or those and Occupy the who claim unmaintain an action of eject ment against der him cannot such tenant, and claiming the land in his own right, are inadmissible in suption, as evidence of title; such deevidence only in relation to the port of the ac clarations being possession. The lessors of the plaintiff claimed as the children and heirs his duty as such at law of William Brown, deceased, who was the son of John Brown, deceased, and produced a deed of quitclaim, in fee, from John Brown to William Brown, for the premises in question, dated the 13th of February, 1801. A witness on the part of the plaintiff stated that John Brown, in his lifetime, claimed the land as owner thereof, as the witness supposed, because he threatened to prosecute any person trespassing on it, and did his declarations, prosecute some persons; that Daniel M Vey, the father of the defendant, entered on the land about six-and-twenty years before the trial, by permission of John Brown, and built a house with his consent, and that he and his family always said that they held the land under John Brown. On his cross-examination, the witness stated, that John Brown was the executor of Duncan Brown, his father; that the witness understood from John Brown, that the lands in question had been sold by Duncan Brown to Duncan Dove, who had given a mortgage to secure the purchase money. The witness further stated, that John Brown claimed the land until the mortgage was paid; and if not paid, as the witness supposed, he claimed the land as his own; and that the eldest son of Duncan Brown was Daniel Brown, who died long before the revolutionary war, leaving a son and several daughters. The counsel for the plaintiff then offered to prove, by other witnesses, that John Brown, in his lifetime, both before and after the entry of M'Vey, in his conversations with various other persons, claimed the land as absolute owner. This testimony, being objected to, was overruled by the judge. A mortgage from Duncan Dove to Duncan Brown and his heirs, was produced on the part of the plaintiff. This mortgage was of 200 acres of land, including the premises in question, and was dated the 23d of March, 1753, conditioned for the payment of 801. on the 22d of March following, with interest. No evidence was offered on the part of the defendant. The judge charged the jury, that if they believed, from the evidence, that John Brown entered upon the land as executor of his father, and, as such, permitted the defendant's father to enter, then the lessors of the plaintiff acquired no right to the land by descent, nor by the conveyance from John Brown, and they should find for the defendant. But if they believed that John Brown leased the land, as proprietor, they should find for the plaintiff. The jury found a verdict for the defendant, which the plaintiff now moved to set aside, and for a new trial. 185 VOL. VV. 24 [ * 235 ] NEW-YORK, Whilst in possession, and to show the character of his possession, May, 1818. *but declarations as to the title; and as such they were inadmissible. The motion for a new trial must, accordingly, be denied. Low v. VROOMAN Motion refused. Where an ejectment cause was referred by held that the expenses at to recover half ses from the Low against VROOMAN. IN ERROR, on certiorari to a justice's Court. This was an action of assumpsit for money paid, laid out and consent of the expended, brought by the defendant in error against the plainparties, and the tiff in error. land in question It appeared that there had been an action of ejectsurveyed, it was ment pending in this Court between the parties, which, by conparty succeed- sent, was referred to surveyors, it being a mere question of ing in the cause, boundary. On the survey, one Tenax attended as a chain-bearer, who had paid who sued the plaintiff below for his services, and recovered betending the sur- tween eight and nine dollars, for the one half of which this acvey, was entitled tion was brought against the defendant below. The expenses of these expen- were proved to have been necessary and proper, and that the opposite party, plaintiff below having succeeded in the ejectment suit, the costs there being some were taxed; but these expenses were struck out of the bill by evidence of an the taxing officer, and the bill was paid by the defendant below. they should be There was no positive proof that the survey was to be made at borne equally, the joint expense of the parties, and Tenax swore that he conpenses not sidered the plaintiff below as his employer. One of the referees being admissiple in the taxa- testified, that he inferred from the acts of the parties on the tion of the costs survey, that each was to bear an equal share of the expenses, in the suit. but he did not recollect to have heard from either any explicit have been, upon declaration on the subject; that on the survey the referees were taxation, im boarded part of the time by the plaintiff, and part by the deproperly struck out of the bill, fendant. The justice gave judgment for the plaintiff below. agreement that and such ex Where costs the remedy of the party is by appeal from the [* 239] the charges which were rejected Per Curiam. The reference to the surveyors was by mutual consent of the parties, and the costs attending the *survey were taxation, and not such as could be taxed in the bill of costs, without some not by action against the op- special agreement on the subject. The evidence on the quesposite party, for tion, whether the expenses were to be borne mutually by the parties, is rather doubtful, but such a conclusion may very fairly be drawn from the circumstances given in evidence, and it was so understood by one of the surveyors. It was an expense incurred for the mutual benefit of both, and it is just and equitable that each one should bear his proportion. Had this been a charge which might have been taxed against the losing party, and which had been struck out of the bill of costs improperly, the remedy ought to have been by appeal from the taxation; but not being such a charge, there is no remedy, except by ac lion. May, 1818. We cannot see that any principle of law has been viola- NEW-YORK, ted; and the real and substantial justice of the case being in support of the judgment, it must be affirmed. IRVINE (a) If no directions are given respecting the costs of an award, they are to be paid by both parties equally. Grove v. Cox, 1 Taunt. 165. IRVINE against Cook. IN ERROR, on certiorari to a justice's Court. Improper evidence ought not to be allowed to be given in the This was an action brought by the defendant in error to recover from the plaintiff in error a balance due to him on the sale of a mare. The defence set up was payment made by the presence of the jury, although note of one Crawford; to repel which, the plaintiff below offered they are, afterto prove the insolvency of Crawford, by what one Reuben Smith wards, directed had said. This testimony was objected to by the defendant (a) below, and the objection was overruled, but the testimony was not admitted to the jury as evidence. A verdict was found for the plaintiff below. to disregard it. *Per Curiam. The only objection to this return relates to the [* 240 ] testimony offered of what Reuben Smith had said as to the insolvency of Crawford. The hearsay evidence of what Smith had said was certainly inadmissible. It was objected to, and the justice says that he overruled the objection: by this he must mean that he received the evidence; but he says that the testi mony was not admitted to the jury as evidence. If the return is to be understood, as we think it must, that the justice admitted the evidence to be given to himself, but that he did not allow the jury to consider it as evidence, it was improper. Such a practice would be dangerous in its consequences, as the evidence is given in the presence and hearing of the jury. This point was decided in Haswell v. Bussing, (10 Johns. Rep. 128.) The Court say that it would lead to great abuse, if a justice were allowed to admit a witness to testify de bene esse, and to say that he afterwards disregarded the evidence. The judgment must, accordingly, be reversed. Judgment reversed. (2) Penfield v. Carpender, 13 Johns. Rep. 350. Tuttle v. Hunt, 2 Cowen, 436. 189 NEW-YORK, HERRICK V. WHITNEY. There is a warranty im in HERRICK against WHITNEY and others. THIS was an action of assumpsit, on a promissory note, dated plied The March 6th, 1816, payable in six months, to John Fitch, or bearer, and executed by the defendants. The cause was tried before Mr. J. Platt, at the Oneida circuit. transfer of ev ery negotiable witness for the the ex Fitch was called by the plaintiff as a witness to prove the ecution of the note by the defendants, and stated that he transnot a competent ferred the note to one Cummings in payment for a pair of bolder, in an ac- horses, but at the risk of Cummings, as to the solvency of the tion against the makers, and that he had no interest in the suit. The defendmaker, although the holder took ants' counsel objected to the competency of the witness; the it at his own judge, however, admitted him. A verdict was taken against solvency of the the defendant, Whitney, for the amount of the note, subject to maker the pay the opinion of the Court, and in favor of the other defendants, ee having a direct interest to who were proved to be infants. risk as to the [* 241 ] charge the ma ker, in order to protect himself *The case was submitted to the Court without argument. Per Curiam. The witness was responsible upon an implied against his im- warranty that the note was not forged. He, therefore, had a plied warranty. direct interest in establishing the fact which he was called to prove; for, by obtaining a verdict for the plaintiff, on the plea of non assumpsit, he protected himself against his own warranty. Judgment for the defendants. (a) (a) A forged note is not payment of goods sold, and the seller may treat it as á nullity, and bring his action on the original contract. (Markle v. Hatfield, 2 Johns. Rep. 445.) The vendor of a chattel, being liable to the vendee on the implied warranty of title, is not a competent witness in an action against the vendee by a person claiming it. (Heermance v. Vernoy, 6 Johns. Rep. 5.) For the same reason, the grantor of land, with warranty, express or implied, is inadmissible in support of his grantee's title. (Jackson and Caldwell v. Hallenback, 2 Johns. Rep. 394. Swift v. Dean, 6 Johns. Rep. 523. Smith v. Chambers, 4 Esp. Rep. 164.) (b) Vide Barrett v. Snoden, 5 Wendell's Rep. 181. Baskins v. Wilson, 6 Cow. Rep. 471. Murray v. Judah, Id. 484. Shaver v. Ehle, 16 Johns. Rep. 201. Williams v. Mathews, 3 Cow. Rep. 252. 190 |