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Crowningshield v. N. Y. Ins. Co.

Per Curiam. The object of the memorandum was to cover all previous deviations, and the ship was again to sail and the risk was renewed from the Isle of France back to the East Indies, on the same iter or voyage described in the policy, beyond that place. It is not like a warranty by the insured. It is an agreement by the insurer, who, in case of loss, could not object to pay, on the ground of a previous deviation. The representation that the ship had before come from Calcutta, was wholly immaterial to the risk, and could not affect the interest of either party. Having, then, run the risk, under the memorandum, the defendants are entitled to retain the premium.

Judgment for the defendant.(a)

(a) As to what constitutes a deviation ; see supra, p. 15, n. c. to Patrick v. Ludlow.) That a deviation may be waived ; see 1 Phill. on Ins. ed. 1840, p. 572, 573, and auth. In Warren v. The Ocean Ins. Co., (4 Shepley, 439,) it was held that where, by the uniform practice of an insurance compa. ny, a deviation by the risk, assumed in the policy is waived by the president, for a compensation agreed upon by him and the assured, and the waiver and assent, with the terms thereof, are written across the policy, without any new signature, and recorded by the secretary, a contract so made is binding upon the corporation. And it is the act of the corporation, although not re. cerded. As to return of premium, see supra, vol. 2, p. 330, n. (a) to Holmes v. United Ins. Co.; U. S. Dig. tit. Insurance, XVII. ; id. Suppt. tit. Insurance.

END OF APRIL TERM

CASES

ADJUDGED IN THE

SUPREME COURT OF JUDICATURE

OF THE

STATE OF NEW YORK,

IN JULY TERM, 1802.

CARPENTER against BUTTERFIELD.

The issuing of the writ in a cause is, for every material purpose, the com

mencement of the suit. Where a defendant, after a writ issued against him, of which he had notice

and before he was actually arrested, purchased a promissory note, made by the plaintiff, which was endorsed to him for the avowed purpose of setting it off against the plaintiff's demand; it was held the set-off was not admis

sible. 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. A debt or demand, to be set off under the statute, must be an existing debt

or demand, at the time of the commencement of the plaintiff's suit. Fictio juris is never allowed to work an injury or prejudice to any party.

Per Radcliff, J.

This was an action of covenant, on a sealed note, dated the 10th March, 1797, by which the defendant promised to pay the plaintiff 96 pounds, on the 1st May, 1798, &c.

The cause was tried at the Washington circuit, in 1801. The defendant offered in evidence, by way of set-off, a promissory note, made by the plaintiff, to Joseph Dickson, or order, and by him endorsed to the defendant, for a valuable consideration.

Carpenter v. Butterfield.

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It appeared that the under sheriff went to the house of the defendant, for the purpose of arresting him on the writ, issued in this cause, and found the door shut, and was informed by the defendant, who knew the sheriff had the writ,

and had come to arrest him, that he would not suffer [*146] himself to be arrested, until he could procure a *ne

gotiable note, then in the hands of Dickson, to be endorsed to him, which he intended to purchase as a set-off against the plaintiff's demand, and that as soon as he could have the endorsement made, he would submit to an arrest, and give bail. The sheriff went away, and the defendant afterwards procured the note to be endorsed to him, and gave bail in this cause. On this evidence, the judge refused to admit the set-off, and a verdict was found for the plaintiff.

A motion was made to set aside the verdict, and for a new trial, on the ground of the misdirection of the judge.

Woodworth, for the defendant.
Champlin, contra.

THOMPSON, J. The question submitted to the determination of the court, in this cause, is whether a promissory note, purchased by the defendant, and endorsed by him, after the issuing of the writ, and before the return thereof, may be set off, under a plea of payment, against the plaintiff's demand. I consider the issuing of the writ in a cause, as to every material purpose whatcver, the commencement of the action.(a)

(a) The Revised Statutes of New York, (3d ed. vol. 2, p. 440, § 1,) provides that the issuing and service of a capias ad resp. shall be the commencement of a suit, except where it is issued to save the statutes of limitation. (id. p. 397, 938.) See Johnson v. Comstock, (6 Hill, 10.) It is not however understood, that any change in the previous law upon this subject, was designed in the revision of the statutes, and that the issuing of a capias is the commencement of a suit. Mr. Graham remarks, (1 Grah. Prac. 3d ed. 502,) “ according to all the cases before the adoption of the revised statutes, the suing out of the capias was deemed the commencement of the suit. (Carpenter v. Butterfield, 3 Johns. Cas. 145. Lowry v. Lawrence, 1 Caines, 69. Bird v. Carital, 2 Johns. Rep. 312. Cheethum v. Lewis, 3 Johns. Rep. 42. Burdick v. Green, 18 Johns. 14. Ross v. Luther, 4 Cowen, 158. Ho

Carpenter v. Buiterfield.

The statute authorizing a set-off declares, that if two or more persons, dealing together, be indebted to each other,

gan v. Cuyler, 8 Cowen, 203 ; see also, Patterson v. Parker, 2 Hill, 598.) But in a late case, Bronson, J. said, that it was no longer the general rule, that the suit was commenced when the writ was delivered to the sheriff, but that service, as well as the issuing of the capias, was now necessary to the commencement of a suit, except where the question was upon the statute of limitations. (Johnson v. Comstock, 6 Hill, 11, 12.) This observation has been, however, more recently regarded by this court, in a case, for a note of which I am indebted to Mr. Hill, as a mere dictum, and has been overruled, on the ground, that the revised statutes, (2 R. S. 347, sec. 1,) had not made any change in the former rule in this respect, as it is above stated. (Dexter V. Adams, MS. Jan. term, 1845.) By the suing out of the capias, is not meant, merely, filling up the writ, although it is unnecessary, except, in actions for penalties or forseitures, (2 R. S. sec. 6,) to show that it was actually delivered to the sheriff: it is sufficient, if it appear, that the writ was made out, and sent to the sheriff or his deputy, by mail or otherwise, with a bona fide, absolute, and unequivocal intention of having it served. (Ross v. Luther, 4 Cowen, 161. Visscher v. Gansevoort, 18 Johns. 496. Burdick v. Green, 18 Johns. 14.)” See Grah. Prac. 2d ed. p. 103, 113. Burrill's Prac. 2d ed. vol. 1, p. 97. The general rule in the United States is, that the issuing or suing out of the writ, is the commencement of the action ; (Lowry v. Lawrence, 1 Caines, 69. Bryce v. Morgan, 3 Caines, 133. Bird v. Caritat, 2 Johns. 342. Cheetham v. Lewis, 3 Johns. 42. Fowler v. Sharp, 15 Johns. 326. Ross v. Luther, 4 Cow. 158. Hogan v. Cuyler, 8 Cow. 203. Parker v. Colcord, 2 N. Hamp. 36. Society, dc v. Whitcomb, ib. 227. Ford v. Phillips, 1 Pick. 202. Rced v. Brewer, Peck, 276. Thompson v. Bell, 6 Monr. 560. Day v. Lamb, 7 Verm. 426. Cox v. Cooper, 3 Ala. 256. See Chiles v. Jones, 7 Dana, 545. Whitaker v. Turnbull, 3 Harr. 172. Feazle v. Simpson, 1 Scammon, 30. Swift v. Crocker, 21 Pickering, 241. Bunker v. Shed, 8 Metcalf, 150. Swisher v. Swisher, Wright, 755. Caldwell v. Heitshu, 9 Watts & Sergeant, 51 ;) but in Connecticut, service of the writ is also required. (Clark v. Helms, 1 Root, 487. Jencks v. Phelps, 4 Connecticut, 149. Spalding v. Butts, 6 Connecticut, 30. Gates v. Bush. nell, 9 Connecticut, 530.) By the Code of Procedure of the State of New York, § 106, 112, 113, 114, civil actions in the courts of record in this state, shall be commenced by the service of a summons. The summons may be served by the sheriff of the county, where the defendant may be found, or by any other person, not a party to the action. The service shall be made, and the summous returned, with proof of the service, to the person whose name is subscribed thereto, with all reasonable diligence. The person VOL. III.

24

Carpenter v. Butterfield.

and one sue the other, the defendant may set off his demand, &c. On a fair and reasonable interpretation of the part of the statute, it would seem, that the debt or demand, which

subscribing the summons may, at his option, by an endorsement on the summons, fix the time, for the service thereof, and the service shall then be made accordingly. The summons shall be served by delivering a copy thereof, as follows: 1. If the suit be against a corporation, to the president, or other head of the corporation, secretary, cashier, or managing agent thereof: 2. If against a minor, under the age of fourteen years, to such minor personally, and also to his father, mother, or guardian, or if there be none within the state, then to any person baving the care and control of such minor; or with whom he shall reside, or in whose service he shall be employed : 3. If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs, in consequence of habitual drunkenness, and for whom a committee has been appointed, to the committee ; and to the defendant personally: 4. In all other cases, to the defendant personally. When the person on whom the service is to be made, cannot aster, due dili. gence be found within the state, and that fact shall appear by affidavit to the satisfaction of the court, or a judge thereof; and it shall in like manner appear that a cause of action exists against the defendant, in respect to whom the service is to be made, and that such defendant, is a resident of this state, or has property therein; such court or judge may grant an order, that the service be made by the publication of the summons in two newspa pers, which the judge may designate, as most likely to give notice to the person to be served, and for such length of time, not less than thirty days, as the judge shall deem reasonablo. In case of publication, the judge shall also direct a copy of the summons to be forth with deposited in the post office, directed to the person to be served, at his place of residence, unless it appear to the judge that such residence is neither kuown to the party making the application, nor can with reasonable diligence be ascertained by him. Personal service of the summons out of the state, shall be equivalent to publication, and deposit in the post office. The provision of the Code in reference to commencing actions to save the statute of limitations is as follows: An action shall not be deemed commenced, within the meaning of this title, unless it appear: 1. That the summons or other process therein was duly served upon the defendants, or one of them; or 2. That the summons was delivered, with the intent that it should be aciually served, to the sheriff of the county in which the defendants, or one of them, usually or last resided; or if a corporation be defendant, to the sheriff of the county in which such corporation was established by law, or where its general business was transacted, or where it kept an office for the transaction of business. (Code Proc. $ 79.)

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