*JACKSON, ex dem. MINER and MINER, against BONEHAM. NEW-YORK, JACKSON BONEHAM. THIS was an action of ejectment brought to recover part of In an action lot No. 85, in the former township of Milton, now Geneva, in of ejectment the county of Cayuga. The cause was tried before Mr. J. Spen-bers of Moses brought by the cer, at the Cayuga circuit, in June, 1817. Miner, the plain der a patent Minner, a sol tionary war; it service of the pear that there The plaintiff produced in evidence an exemplification of letters tiffs claimed unpatent, dated the 13th of September, 1790, to Moses Minner, issued to Moses for lot No. 86, in the township of Milton, in Montgomery dier in the Newcounty, excepting 100 acres out of the south-east corner of the York line dulot. Esther Miner was called as a witness on the part of the ring the revoluplaintiff, who testified, that she was the sister of Moses Miner, was held that and of the lessors of the plaintiff, and that Moses Miner was, by prima facie evithe patent was trade, a gunsmith, and lived at Stonington in Connecticut, and dence of the about the year 1774 went to sea. The witness also proved a soldier mentionletter from Miner to his mother, dated at New-York, in Septem- ed in it; and as ber, 1775, in which he says that "he had got to be a soldier." it did not apShe heard, in 1776, that he was with the New-York troops, but was any man in the army by never heard of him again until fourteen years after the war, the name of when she was told that he had been killed; that the general Minner, the vaopinion in the family was, that he was dead, and that he always considered spelt his name Minor and Miner, and not Minner. The testi- mere misspellmony as to the death of Moses, and his being with the New- ing of the name, York troops, was objected to as hearsay, but was admitted by affect the identhe judge. The plaintiff also gave in evidence a sworn copy of son, and did not tity of the perthe records of the town of Stonington, which contained the make it a disdate of the marriage of the parents of the lessors, and the time of the birth of their children. This memorandum was objected to, but was admitted by the judge. riance must be a which could not besides, the defendant claimed tinct name; and under a soldier of the name of strong evidence person under whom the lessors The defendant gave in evidence a deed for the premises dated Moses Minor, August 29th, 1791, from Ebenezer Minor, describing himself who, there was as "heir at law to the estate of Moses Minor, deceased, late a to show, was private in the first New-York regiment, mariner," to William I. the same as the Vredenburgh, in fee. It appeared from the testimony of Esther Miner, that she and the plaintiff's lessors were the only surviving heirs of Moses Miner; and it was admitted, that if the plaintiff was entitled to recover, the defendant ought to be compensated for his improvements. A verdict was taken for the plaintiff, subject to the opinion of the Court. Richardson, for the plaintiff. claimed. (a) as evidence of the son. It seems that a register of marriages and births, kept in the records of a Foot, contra. He cited Jackson, ex dem.. Shultze, v. Goes, town, is evi. 13 Johns. Rep. 518–523. dence of pedi gree and heir ship. THOMPSON, Ch. J., delivered the opinion of the Court. The (a) Jackson v. Cody, 9 Cow. Rep. 140. Jackson v. King, 5 Cow. Rep. 237. Jackson . Etz, Ibid. 314. JACKSON V. BONEHAM. NEW-YORK, premises in question are a part of lot No. 86, in the old townMay, 1818. ship of Milton, and are claimed by the lessors of the plaintiff under a patent to Moses Minner, bearing date the 13th of September, 1790. The principal question in the case is, as to the identity of the soldier. The patent is prima facie evidence of the service, as a soldier, of the person mentioned in the patent; and where there appears to have been two persons of the same, or nearly the same name, in the service, it is, sometimes, difficult to identify the patentee. But in the case before us, the only difficulty appears to arise from the name being spelled Minner, instead of Miner. It is evident that the soldier under whom the lessors claim wrote his name Miner; and if it had been shown that there had been in the army any man by the name of Minner, the patent would be deemed to have issued to him; but nothing of that kind appearing, it must be considered a mere misspelling of the name, which cannot affect the identity of the person; nor is it such a difference in the spelling as to make it a distinct name. Besides, the defendant himself sets up a title derived from a soldier by the name of Moses Minor. The grantor in the deed under which he claims describes himself as the heir at law of Moses Minor, deceased, late a private in the first New-York regiment, mariner. And the evidence in the case is very strong to show that this is the same person under whom the lessors derive title. It appears, by the testimony of his sister, that he left. Stonington, in Connecticut, in the year 1774, and went to sea. And she produced a letter from him to his mother, dated at New-York, in September, 1775, which mentions that he had got to be a soldier, (as he expressed himself.) Thus it appears that the soldier under whom the plaintiff claims went to sea in the year 1774, and entered the service in the fall of 1775; and in the defendant's deed he is described as a mariner, which is a pretty strong circumstance to show that both parties claim under the same person. [* 228] The hearsay evidence offered and objected to, of Moses Miner being with the New-York troops, and of his being killed in the army, was admissible for the purpose of showing his death, and the place where he died, but would not, of itself, afford any evidence of his having served in the army as a soldier entitled to bounty land. We do not perceive any objection to the admission of a sworn copy of the records of the town of Stonington, as evidence of the family of Moses Miner. But this was unnecessary proof; the fact was sufficiently established by his sister, Esther Miner. From her testimony, it appears that the lessor of the plaintiffs and herself are the only surviving heirs of her brother Moses. They are, accordingly, entitled to recover two thirds of the premises in question. The defendant claims under a deed from Ebenezer Minor, who calls himself the heir at law of Moses Minor; but there is no evidence of that fact, nor any thing showing who Ebenezer Minor is. SMITH It was admitted on the trial, that if the plaintiff had a right NEW-YORK, to recover, the defendant was entitled to compensation for his May, 1818. improvements. The plaintiff must, accordingly, have judgment for two thirds of the premises in question, with stay of execution until the improvements have been paid for, pursuant to the act in such case made and provided. Judgment for the plaintiff. V. JONES. *SMITH against JONES. THE SAME against THE SAME. IN ERROR, on certiorari to a justice's Court. [* 229 ] Where the plaintiff has an he cannot di tinct parts, and bring separate as, on an entire contract of sale of goods, he vide it into dis actions for each; one part of the The defendant in error brought two actions in the Court be- entire demand. low, against the plaintiff in error, for goods sold and delivered, &c. The defendant pleaded, and also produced an account as a set-off. The evidence on the trial was decidedly in favor of a balance against the plaintiff below, except as to three barrels of pot ashes, which, as far as there was any evidence of a sale, appeared all to have been sold at one time; yet the plaintiff in cannot maintain one action claimed for one barrel only, and for the residue in an action for the other. The only evidence of the sale was the confession goods sold, and of the defendant, made five or six years before the trial, but another action who, at the same time that he admitted the purchase, alleged (a) that he had paid for the ashes, and agreed that if his son John The defenddid not swear that they had been paid for, he would pay for that he had purthem. The plaintiff had spoken to the defendant's son John, chased goods, but had who had since died, on the subject, and he replied that he could paid for them, swear that all the ashes had been paid for. It was proved that the plaintiff below had, on some occasion, declared, that if the defendant's son John was dead, he could get pay for the three barrels of ashes. Verdicts were found for the plaintiff below, in both causes. Per Curiam. The only matter in question, in these causes, is the three barrels of pot ashes. There is no pretence, from any part of the evidence, that these ashes were sold at different times, or in different parcels; but the natural and necessary conclusion to be drawn from the evidence is, that it was an entire contract for the whole quantity; and yet the plaintiff has set up and divided this entire demand into separate suits, which, of itself, would be a fatal objection to the judgments. But, independent of this, there was no proof to sustain (a) Vide Phillips v. Berick, 16 Johns. Rep. 136. Butler v. Wright, 2 Wendell's Rep. 369. Miller v. Covert, 1 Ibid. 487. Connell v. Cook, 7 Cow. Rep. 310. Farrington v. Smith, infra, 432. for another part. ant's confession the is not sufficient plaintiff to recover in an ac to entitle the tion for the price. SILL NEW-YORK, the recovery. The same testimony that proved the sale, proved May, 1818. also the payment. *(3 Johns. Rep. 427. 9 Johns. Rep. 141.) Besides, the great delay on the part of the plaintiff in bringing these actions, casts a suspicion on the claim; and more particularly as he waited until the witness was dead, from whom he himself had learnt, that he could swear to payment. The judgments must be reversed. V. ROOD. Judgments reversed. In an action chattel, the defendant may, deceit in the sale. (a) note given on SILL against ROOD. THIS was an action of assumpsit on two promissory notes. on a promissory The defendant pleaded non assumpsit, with notice of set-off, for note given for the price of a goods sold, work and labor, money had and received, &c. The cause was tried at the Onondaga circuit, before Mr. J. Spencer. under the gen- At the trial, the plaintiff having proved the notes in question, eral issue, show the defendant offered to show, that they were given by the defendant to the plaintiff in payment for a shearing machine, and A promissory that, at the time of the sale, the plaintiff falsely represented the the sale of a machine to be of great value, when, in fact, it was worth nothing. chattel, fraudu- This testimony was objected to, on the ground that it was lently represented by the not admissible under the plea or notice, and was rejected by the judge. The defendant then offered to prove a breach of wargreat value, when, in fact, ranty as to the value and utility of the machine, which testivalue, is without mony was objected to, and excluded on the same ground; and consideration, the judge ruled, that neither the fraud nor breach of warranty, although they went to take away the plaintiff's whole cause of action, could be given in evidence under the plea of non assumpsit, without notice. A verdict was found for the plaintiff for the amount of the notes, and the defendant now moved for a new trial. seller to be of it was of no and void. [*231] The case was submitted to the Court without argument, on a reference to authorities. *Per Curiam. The only question in this case is, whether, under the plea of non assumpsit, it is competent to give in evidence that the note was fraudulently procured, or that it was given without consideration. The evidence offered, and which was excluded, was, that the notes in question were given in payment for a shearing machine sold by the plaintiff to the defendant; that the plaintiff made certain representations with respect to the usefulness of the machine, which were utterly false, and (a) Vide M'Allister v. Renb, 4 Wendell's Rep. 483. Burton v. Stewart, 3 Ibid. 236 Gleason v. Clark, 9 Cow. Rep. 57. Hills v. Bannister, 8 Cow. Rep. 31. Slade v. Halsted, 7 Ibid. 322. Frost v. Everett, 5 Cow. Rep. 497. Beecker v. Vrooman, 13 May, 1818. SILL V. ROOD. that known to him at the time; and that the machine was, in NEW-YORK, fact, worth nothing, and totally useless. This evidence was overruled, on the ground that a special plea or notice under the general issue was necessary in order to let in such defence. The cases on this subject do not seem to warrant so rigid a rule. The rule, as laid down by Chitty, (1 Chitty, Pl. 472.) and which is sanctioned by adjudged cases, is, that under the general issue of non assumpsit, any matter may be given in evidence which shows that the plaintiff never had cause of action; and that under that plea most matters in discharge of the action, which show that, at the time of the commencement of the suit, the plaintiff had no subsisting cause of action, may be taken advantage of under the general issue. This rule has been expressly sanctioned by the Court in the case of Wilt v. Ogden, (13 Johns. Rep. 56.) If the notes in question were procured upon such fraudulent representations, they were utterly void, and without consideration, and there never was any cause of action. The case of Runyan v. Nichols, (11 Johns. Rep. 547.) was not like the present: the defence there set up was considered as going only to reduce the amount of the plaintiff's claim, and not to destroy the cause of action entirely. (a) It was a (a) That was an action by an attorney to recover his costs; and the defendant offered to show negligence in the conduct of the suit. In Templer v. M'Lachlan, (5 Bos. & Pull. (2 N. R.) 136.) such a defence was not allowed under the general issue, though Mansfield, Ch. J., seemed to think that it might be admitted, if the negligence was so great as to deprive the defendant of all benefit from the suit. In Mills v. Bainbridge, there cited by Shepherd, arguendo, Lord Ellenborough is said to have ruled, that in an action for freight of goods, the defendant could not give in evidence the injury the goods had sustained by bad stowage but must resort to his cross action. There can be no doubt, that if admissible a all as a defence, it may be made under the general issue in assumpsit; but the difficulty is, that by admitting such a defence, the plaintiff may, in some cases, b taken by surprise, contrary to the just principle of pleading, which requires tha the facts on which the party relies should be stated so as to apprize the opposite party of what is meant to be proved, in order that he may be prepared to answer or contest it. (1 Chitty, Pl. 215. 472.) In Basten v. Butler, (7 East, 479.) which was an action for work and labor, &c., Lord Ellenborough seemed to think that there was a distinction between an action for a specific sum agreed on, and where the plaintiff proceeded on a quantum meruit; that in the latter case, the plaintiff must come prepared to prove that he has not only done the work, but that he ought to have so much for it, and, therefore, could not be surprised by such a defence. But Lawrence, J., thought that, even in the first case, the defendant ought to be let into the defence, if he had given the plaintiff notice that he meant to dispute the goodness or value of the work done. And Le Blanc, J., was of opinion, that, in either case, the plaintiff ought to come prepared to show that he had done his work properly, according to his contract. In Farnsworth v. Garrard, (1 Campb. N. P. Rep. 38.) Lord Elenborough said, there had been considerable doubt on this point, and that he had ruled in deference to the authority of Mr. J. Buller, (7 East, 480, 481, notes,) but having since conferred with the judges, he considered the correct rule to be, that if there has been no beneficial service, there should be no pay; but if some benefit has been derived, though not to the extent expected, it should go to the amount of the plaintiff's de mand, leaving the defendant to his action for negligence. In Fisher v. Simuda, (1 Campb. N. P. Rep. 190.) which was an action by a buyer against the purchaser, to recover damages for the bad quality of the article sold as sound and good, and who had been sued for the price by the seller, and made no defence, but suffered judgment to pass by default, Lord Ellenborough said the plaintiff ought to have made his defence in the original action, and given in evidence the bad quality of the article supplied, either in answer to the whole |