Historical outlines of the law. e were resident in the shire on the day of date of the writ of summons; and that the knights, esquires, and others, who were o be choosers of the knights of shires, were to be resident within the shire. And that citizens and burgesses of the cities and boroughs were to be resident, dwelling and free in the same. Several statutes were passed in this reign on the subject of coin. By 3 Hen. 5, st. 1, c. 1, it was made felony to make, buy, or import coin called gally half-pence, suskins, and dodkins; and certain penalties were inflicted on any one passing such coin. By 3 Hen. 4, st. 2, c. 6, the clipping washing and filing of money was made treason. It was doubtful whether it was within the statute of treasons. By the stat. 3 Hen. 5 st. 2, c. 3, it was enacted that all Welsh people dwelling in the Queen's house, and others abiding near the house and elsewhere, not being denizens should be voided out of the realm by a certain day, under pain of felony. And by 2 Hen. 5, st. 2, c. 5, because many Welsh made inroads into Shropshire, Herefordshire, and Gloucestershire, and took away people by force: the justices of the peace were authorized to enquire, hear, and determine such offences, award process of outlawry, and certify this to the lords of the seigniories, where such plunderers harboured, who were to order execution to be done thereon. Irishmen and Irish clerk-beggars, called chamber-deacons, were by stat. 1 Hen. 5, c. 8, to be voided out of the realm by a certain time, on pain of losing their goods, and being imprisoned at the King's plea sure. Graduates in the schools, serjeants and apprentices of the law, those who were inheritors of any land, religious persons, professed merchants of good fame and their apprentices, and such as had estates and benefices, and those with whom the King would dispense, were, however, excepted. The breaking of truce and safe-conduct, either by the manslaughter, robbery, or spoiling of any one; and the voluntary receipt, abetment, procurement, concealing, hiding, and sustaining of such offenders, either by sea or land, were by stat. 2 Hen. 5, st. 1, c. 6, to be adjudged high treason. It was provided by stat. 2 Hen. 5, st. 2, c. 2, that no juror should be admitted to pass on inquests upon the trial of the death of a man, nor between party and part in real pleas, nor in personal pleas, where the debt or damages declared for amounted to forty marks unless he had lands or tenements to the yearly value of 40s. above all charges; and that if he had it not, it was a cause for which either party might challenge him. The Stat. 1 Hen. 5, c. 3, after reciting that persons possessed of lands or tenements suffered losses, because persons subtilly imagined and forged anew divers false deeds aud muniments, to trouble and charge their lands; enacts that any one so injured should have recovery of his damages against the party making and publishing, who were also to make fine at the King's pleasure. Felons living in the franchises of Tyndal, and Hexam might by, by 2 Hen. 5, st. 1, c. 5; and that of Ridesdale by 9 Hen. 5, c. 2, be outlawed; and that upon this being pronounced, and the process was returned before the justices, they were to certify to the ministers of those franchises, who were immediately to seize the lands, goods, and persons of the offenders. The Salaries of Curates were, by 2 Hen. 5, stat. 2, c. 2, to be eight marks per annum, and that of Chaplains was fixed at seven marks. An exception was made by stat. 1 Hen. 5, c. 7, from the statute of Richard the 2nd, against Frenchmen holding ecclesiastical benefices, in favor of prior alien conventional, and other priors having institution. and induction, so as they were Catholic, and found surety not to disclose the secrets of the realm. Fees for the probate of testaments were settled by stat. 4 Hen. 5, c. 8. The Lollards being considered at this time as the principal disturbers of the peace, it was stat. 2 Hen. 5, st. 1, c. 7, enacted that the chancellor, treasurer, justices, sheriffs, mayors, and bailiffs of cities and towns were, on entering office to make oath that they would use their whole power and diligence to destroy all heresies and errors, commonly called lollardies, and assist the ordinaries and their commissaries as often as required by them. In addition to the penalties already inflicted on such offenders, they were now to suffer forfeiture of goods and lands as in case of felony; but no heretics were to forfeit their goods till they were dead. In Chancery.The New York Life Insurance and Trust Company v. Emiline Davis et al. Some amendments were made in this reign in the course of process and proceeding. It was enacted by stat. 1 Hen. 5, c. 5, that in every original writ of actions personal, appeals and indictments, in which the exigent shall be awarded, to the names of defendants "additions" should be made of their estate or degree or mystery, and of the towns or hamlets, or places and counties of which they were or be, or in which they be or were conversant, otherwise the outlawry to be void, and before the outlawry pronounced, the writ and indictment may be abated by exception of the party. It was also provided, that though the writ of additions personal were not according to the records and deeds, if such addition was surplus age, the writ should not be abated on that account. The statutes of additions, as it was afterwards called, removed those inconveniencies that used to be occasioned by want of naming particularly the parties in a writ. A statute of jeofails, (so called because when a pleader perceives any slip in the form of his proceedings, he is at liberty by this and the other statutes of this name, to amend it ;) and amendment was made in the 9th year of this reign, c. 4, in order to remove some doubts which had arisen with regard to stat. 14 Edward 3, st. 1, c. 6, upon this subject. By this stat. of Henry, it was ordained that the justices before whom such plea or record was made or depending, should have power and authority, as well by adjournment as by way of error, or otherwise, to amend such record and proceeding, according to the permission of the former statute, as well after judgment as before, so long as the record was before them. Of the year-books of this reign, the third, fourth and sixth years are wanting. IN CHANCERY. Before the Hon. REUBEN H. WALWORTH, COSTS. REGISTER'S FEES. bill, and other services porformed by him accord ing to the fee bill of 1839 previous to putting in answer, or after it is ascertained that the suit will not be defended. THIS was an application for the retaxation of costs in a foreclosure suit. The first class of charges objected to were disbursements for registers fees for filing the Bill and other services performed by him, according to the fee bill of 1839, previous to the putting in of the answer of the infant defendants. J. Rhoades, for the complainants. The CHANCELLOR.-The Act of May, e That the court may dispense with the necessity of serving an order nisi to appoint a guardian ad litem for infants, where the solicitor, at the time of serving the subpoena, also serves a notice that will apply for an absolute order for that purpose, unless the infant shall have a guardian ad litem appointed within twenty days after the time specified for his appearance. In Chancery. The New York Life Insurance and Trust Company v. Emiline Davis et al. their accounts of the fees paid and unpaid | filing amendment to bill is not chargeable, to the comptroller periodically. It is im- without a special affidavit showing that possible at the commencement of a fore- the necessity for the amendment did not closure suit, to ascertain whether it will or arise from the fault or negligence of the not be defended and contested by plea, complainant's solicitor, and explaining answer or demurrer. Until after the why it became necessary-that no extra defendants have answered, or the bill has charge for serving subpoena's to appear, been taken as confessed against them, the beyond the sum allowed therefore can be register, assistant-register, or clerk, is taxed as a disbursement. therefore bound to demand and receive from the solicitor, for the use of the state, the fees for services performed by them officially, at and after the rate prescribed in the fee bill of 1839. And no provision is made by law for refunding such fees to the solicitor, by the state, or for deducting them from the accounts rendered against them, in case the defendants afterwards suffer the foreclosure suit to be taken as confessed, or put in an answer which does not contest the complainants right to a decree of foreclosure. The only rational construction therefore, which can be put upon the acts of 1839 and 1840, when taken together, is to construe the provisions of the latter, so far as relates to such fees as only applicable to services performed by the register, assistant-register or clerk, after it is ascertained that the suit will not be defended; and to allow to the solicitor as a necessary disbursement in the suit, the fees which he has been compelled to pay for services performed before that time according to the fee bill of 1839. The registers fee bill for filing the bill, sealing the subpoenas, entering order for absentee to appear, entering order nisi for the appointment of guardian ad litem, copy of the order and filing three affidavits, and entering order that infants answer the bill were properly allowed as necessary disbursements. His Honor decided also that the register is not entitled to a fee of eight cents for entering the bill; as the allowance by the folio for entering any order, decree or proceeding in the minutes was intended to cover proceedings which were copied into the registers of decrees and orders-such as proofs of wills, &c.—and does not apply to the mere memorandum entered in the minutes of causes. Also that the register is not entitled to a fee for filing the draft of orders to be entered by him; as such drafts are delivered to him to be entered in the minutes but are not to be considered as filed papers. Also that a charge for That no counsel can be allowed on special motions in foreclosure suits where there is no defence. That the master is not entitled to an allowance for attending to sign summons on a reference to compute amount due on a mortgage; nor for attending upon the return of summons and adjourning the hearing, where none of the defendants have appeared in the suit; unless in a case where it is necessary for the complainant to produce testimony as to the rights of non-resident defendants, or as to the propriety of selling the whole mortgaged premises. Nor is the master entitled to an allowance for drawing and copy of the underwritings upon the summons; as the underwriting as well as the drawing of the summons belong to the duties of the solicitor. That the master is entitled to a fee for attendance upon a reference to compute amount due, in addition to the specific allowance for computation, where the defendants have appeared and are summoned to attend the reference, and the master is required to examine and report as to the rights of the infants, as well as to take proof as to the rights of absentees. The sum of $34,65 directed to be deducted from the bill of costs, as taxed, and the balance only, directed to be paid. Guardian ad litem allowed $8, for his costs upon this application. N. Y. Supreme Court.-Field v. Chase.-Demurrage. SUPREME COURT. Supreme court of the State of New York. Before the Hon. SAMUEL NELSON, C. J., and Judges BRONSON and COWEN. FIELD V. CHASE. DEMURRAGE. F. chartered a Ship for a voyage from Boston to Havannah and Matanzas and thence to a port in Europe, and it was stipulated that "twenty running days should be allowed for discharging and loading at Cuba, and if more were used, thirty dollars per day demurrage to be paid by F-the ship reached the port of Havannah during the Easter holidays, when, according to the usage of the place, the Custom-house was closed, in consequence of which the brig couid not be entered, nor could permission be obtained to unload. The consignee had notice immediately on her arrival. Held, that the twenty five running days commenced on the arrival of the Brig in port, and notice to the consignee and that the occurrence and continuance of the Easter Holidays and the consequent suspension of business at the Custom-house, and the delay from those causes did not postpone the commencement of the running days allowed for discharging and loading. ERROR to the Superior Court of the City of New-York. The case is sufficiently stated in the opinion of the Court. J. H. Raymond, for the plaintiff in error. J. M. Martin, for the defendant in error. By the Court, COWEN, J.-The action in the court below was by Field against Chase, to recover moneys advanced by the former in payment of the disbursements and port charges of the brig" Damascus" at Cuba, pursuant to his stipulation in a charter party. He had chartered the ship of the defendant, who was master and part owner, for a voyage from Boston to Havanna and Matanzas, and thence to a port in Europe, &c.; "twenty-five running days to be allowed for discharging and loading in Cuba; and if more are used, thirty dollars per day demurrage to be paid by said Field." The defendant retained for several days demurrage at Havanna out of the moneys advanced by the plaintiff as above stated; and the sole question is, whether the brig was delayed at that port under circumstances which He rendered the plaintiff accountable. was detained 34 days; and 5 days of the demurrage were accounted for by the fact that she reached the port during the Easter holidays, when according to the usage of the place, the custom-house was closed. The brig, therefore, could not be entered, nor could permission be obtained to unload. The consignee had notice of her arrival immediately. The court below charged the jury that the 25 running days commenced on the arrival of the brig in port and notice to the consignee, that the occurrence and continuance of the Easter holydays, the consequent suspension of business at the custom-house, and the delay, from those causes, of the custom-house entry and permit, did not postpone the commencement of the running days allowed for discharging and loading. A verdict was accordingly rendered in favor of the defendant; and the plaintiff sued out a writ of error from this court. It is impossible to say, from this case, that it was the business of the defendant to see that the brig was entered at the custom-house. I should rather conclude that this was the business of the consignee. It is settled that this provision for running days as they are called, is, in effect, a positive stipulation by the freighter that he will, on arriving at the port to which they relate, load and unload within the time mentioned, and that if detained longer it shall be counted as his own delay. The legal consequence of such a construction is, in ordinary contracts, extremely well settled. If violated from any cause, even in consequence of inevitable accident, this shall not excuse the party from the payment of damages. The contract is express, not merely implied by law. In this last case he would be excused by the act of God or the enemies of the country. But where it is express, nothing short of the other party's fault will have that effect. The decisions in respect to the stipulation in question will in general be found in harmony with the distinction. A ship being detained by the crowded state of the docks is one instance. (3 Chit. Com. Law, 428, and the books there cited in note 1). Being blocked up by ice in the Thames is another; though a further detention for want of clearances in consequence of the custom-house being burnt N. Y. Supreme Court-Mather v. Delafield. down was allowed to be an excuse on the ground that, to obtain the clearance was shown to be the business of the owner. Barrett v. Dalton (4 Camp 333 vid. id. 335, note.) So if the delay be occasioned by the irregular act of the custom-house officers. (Bessey v. Grant, id. 131.) So where the delay arises from the regular course of business at the Government of fice. (Hill v. Idle, id. 327), or even the prohibition of a foreign government. (Blight v. Page, 3 B. and P. 295, in note.) In all these cases demurrage was allowed, and in the last, the general distinction which I have noticed was adverted to by Lord Kenyon. He cites Co. Litt. "That if a 66 man be bound in an obligation to A. "conditioned to enfeof B. a stranger, and "B. refuse, the obligation is forfeited, for "the obligor has taken it upon him to "make the feoffment. The reason of this "he says, is clear. If a man under"take what he cannot perform he shall "answer for it to the person with whom " he undertakes." To apply the rule to the principal case; Here the plaintiff undertakes to unload and reload in 25 days after arriving in the port of Havanna, and if detained more to pay a per diem of $30. He sets up for excuse that business being suspended during the Easter holidays, he could not enter the brig, nor procure a He is bound permit to begin the work. to go farther, and show that the defendant was obliged to obtain those papers; but by a failure on his part, prevented the plaintiff. That he has not done. The cases, or rather dicta, may not be entirely uniform; but on the balance of authority there can be no doubt; beside its entire accordance with principle and analogy. (3 Chit. Com. Law, 427-8; Holt on Ship. 326, id. 332, 2nd Lon. ed.; Randall v. Lynch, 2 Camp. 352; 12 East 179; S. C. Kent's Com. 202, 4th ed.; Barker v. Hodgson, 3 Maul and Selw. 267; Mc. Culloch's Com. Dict. tit. Demurrage. There is a difference, it seems, in respect to this provision of a charter party, deWhere the loadpending on the words. ing or unloading is to be within a certain number of days generally or so many working days they do not include Sundays or custom-house holidays; otherwise are, as here, running days. (Holt on Ship. 338-9, Lond. ed. of 1824, Cochran v. Relberg, 3 Esp. Rep. 121; Lawes on Chart. Parties 131.) On the former words, the defendants case would indeed have been very questionable; on the latter it is very clear. The reasoning in Duff v. Van Zandt 3 John, Cas. 162 is mainly relied on by the counsel for the plaintiff. But the words there were working days. Judgment affirmed. MATHER V. DELAFIELD. ACT FOR THE APPROPRIATION OF PUBLIC An Act for the appropriation of public property to the use of an individual requires for its passage the concurrence of two-thirds of the Members elected to each house (Const. N. Y. Art. 7, §9.) where therefore A. M. the uncle of the plaintiff died seized of land without devising same and all A. M.'s heirs were aliens including the Plaintiff, but the plaintiff claimed to be entitled to such land by virtue of an Act passed 24th April 1840 in these words, " M. an alien, is hereby authorized to take and hold in fee simple the real estate devised to him by A. M. deceased, late of New York, or of which the said A. M. deceased was seized at the time of his death; and to sell, dispose of and convey the same in the same manner as a citizen of the United States can do, and all right title and interest of the people of the State of New York in and to the lands is hereby released"—but it did not appear that such act had been passed by the assent of two-thirds of the Members elected to the House. Held (affirming the judgment of the Superior Court) that such act did not operate to vest in or confer on the plaintiff any title or estate in the land in question. ERROR to the Superior Court of the City of New York, where the plaintiff in error sued the defendant in error in ejectment. Andrew Mather, the plaintiff's uncle, died seized of the land in question in 1826, without devising the same, having ac quired title thereto after the making of his will in 1816. All of Andrew Mather's heirs, including the plaintiff, were aliens; but the plaintiff claimed that he was nevertheless entitled to recover in virtue of the act of April 24th 1840. (Sess. Laws of 1840, p. 117). The Plaintiff's Counsel read in evidence a copy of the act in these words: "Andrew Mather an alien, is hereby authorized to take and hold in fee simple the real estate devised to him by Andrew Mather de 2 |