Covenhoven v. Seaman and others.

and 3d. That he should prosecute his suit in that behalf, with effect. Instead of a compliance with these [24] stipulations, it appears that Jones has not proved his liberty, nor prosecuted his suit with effect, but has suffered judgment to be entered against him, as in case of nonsuit, and has, at the prayer of the plaintiff, surrendered himself to him.

The condition of the recognizance has, therefore, not been performed. A party submitting to a nonsuit, does not prosecute the suit to effect, (Carth. 519,) nor if the writ be abated for any cause, will it save the recognizance, unless another writ be sued out with due diligence. The case given in Fitzherbert, (Nat. Brev. 68. A.) is very analogous to the present. "In a homine replegiando, the plaintiff was bound by recognizance, in a certain sum of money to the defendant's use, that he would sue him cum effectu. And it was held that, if the writ abate for any cause, yet he ought to sue another writ for the taking, &c., otherwise he shall forfeit his recognizance.

The only question that can be raised is, whether the surrender to the plaintiff, and the acceptance by him, amounted to a discharge of the recognizance. We think there is no ground for that opinion. There were good reasons for the stipulations in the recognizance, that the suit should be prosecuted to effect, and the question of the freedom or servitude of Jones, be judicially determined. It would either silence the unjust pretensions of the plaintiff, and forever deliver the man from bondage, or it would quiet him in the lawful possession of his property.

We are, therefore, of opinion, that the plea is bad, and that judgment must be rendered for the plaintiff.

Judgment for the plaintiff.

Doe v. Roe.

*TUTTLE against MASTON.

[*25]

In an action before a justice, the plaintiff's declaration may contain several counts for several causes of action, for 25 dollars each, if they do not in the whole amount to more than the sum of 200 dollars, and the plaintiff concludes with stating his damages at 25 dollars only.

IN error on certiorari. It was specially assigned and relied upon, as error in this case, that the declaration before the justice contained two counts, in which the plaintiff below stated two several causes of action, on different days, and each of them to the value of 10 pounds, and it was contended that as the sums demanded in the two counts exceeded the value of 10 pounds, the justice had no jurisdiction, it being limited in amount to that sum.

Per Curiam. The plaintiff below concluded, by demanding the sum of 10 pounds only. In general, when the action sounds in damages, the sums alleged in the different counts of the declaration, are not material, and may be arbitrary. Notwithstanding the limitation in a justice's court, there can be no error, if the damages, in the aggregate, do not exceed the sum of 80 pounds, to which the jurisdiction of that court extends, provided the balance claimed be 10 pounds, or under. We are, therefore, of opinion, that the exception is not well taken.(a)

Judgment affirmed.

DOE against ROE.

On a feigned issue to try the fact of adultery, it was held, that the confession of the wife, connected with other proofs, were admissible in evidence. Such confessions, however, if made by collusion, or with a fraudulent intent, are entitled to no weight.

THIS was a feigned issue from the court of chancery. One P. S. filed his bill in that court, against Catharine, his

(a) Cahill v. Dolph, infra, 333. Stillson v. Sandford, 3 Caines' R. 174.

wife, to obtain a divorce for adultery, pursuant to the statute of the 30th of March, 1797. The fact being denied by her answer, the Chancellor directed it to be tried on this issue.

On the trial before Mr. Justice KENT, at the last August sittings in New York, evidence was given, among other things, of the confessions of the wife, to prove her guilt, and a verdict was found for the plaintiff.

[*26]

*It was now moved to set aside this verdict, on the ground, that the confessions of the wife were incompetent evidence, and, by consent of parties, the question was submitted to the opinion of the court.

Riggs, for the plaintiff.

Jones, for the defendant.

RADCLIFF, J. The confessions of the wife, when connected with other proof, were, in the first instance admissible. But if it had appeared, that such confessions were made with a fraudulent design, or by collusion with the husband, in order to obtain a divorce, their effect would be destroyed. No circumstances appear in this case to induce that belief. I therefore think that the evidence was properly ad mitted, and that the verdict ought not to be disturbed.(a)

KENT, J., and BENSON, J., concurred in this opinion.

LEWIS, J. The confessions of the wife, in my opinion, ought not to have been admitted. It was clearly contrary to the spirit of the statute, which requires proof of incontinence, where the party who is defendant in equity does not deny the allegations of the complainant's bill, or where, ac

(a) "This rule was derived from the ecclesiastical law, and it is well settled that the confessions of the party are admissible on a charge of adultery if supported by other proof; but unless corroborated by other evidence and circum. stances, they are not sufficient ground for a decree." Betts v. Betts, 1 Johns. Ch. R. 197, 199. Burns Eccl. Law, tit. Marriage, § 11. Baxter v. Baxter, 1 Mass. R. 346. Holland v. Holland, 2 id. 154. See the same doctrine laid down in Fournel, Traite de L'Adultere, 160. But in Billings v. Billings, 11 Pick. R. 461, it was held in a case where there could be no collusion, that the confession of the adulterer was sufficient evidence of the crime. In regard to the confessions of the paramour, see Burgess v. Burgess, 2 Hagg. Con. R. 235, n.

Vredenbergh v. Hallett & Bowne.

cording to the course of that court, the bill ought to be taken pro confesso. This manifests an intention in the legislature to prevent collusion, which cannot be effected, if a jury be permitted to be influenced, as in ordinary cases, by the confessions of the parties.

LANSING, Ch. J. I am also of opinion, that the confessions of the wife ought not to have been admitted; and as it does not judicially appear who are the real parties, we may avail ourselves of the circumstance, that we are deciding between fictitious parties, to exclude these confessions, by which we shall prevent collusion, and thereby promote the object of the statute.

Motion denied.

*VREDENBERGH against HALLETT & BOWNE. [*27]

Where the cause of action is such as to carry interest, and judgment is delayed after verdict, the plaintiff is entitled to interest on the amount of the verdict, to the time of the taxation of costs, after judgment; and the interest is to be taxed with the costs, de incremento.

THE plaintiff obtained a verdict some time since, on which judgment was not rendered until this term. The action was on a policy of insurance, upon which the plaintiff was entitled to interest on the amount of the loss sustained, from the time it ought to have been paid. The interest was accordingly included in the sum found by the jury, and calculated by them, agreeably to the practice of the court, down to the term subsequent to the verdict. After the trial, a case was made for the opinion of the court, which was delayed for argument, and was not decided until the present

term.

Per Curiam. The plaintiff must be allowed the interest on the amount of the verdict, until the time of taxing the costs in this action, and the same must be taxed, together with the costs.

In all actions founded on contracts carrying interest, and

Cathcart v. Cannon.

delayed under similar circumstances, the like interest may, in like manner, be taxed.*(a)

PALMER, widow, &c. demandant, against HORTON,

tenant.

The wife of a person attainted, under the act of the 22d October, 1779, is entitled to dower out of the estate of her husband, which has become forfeited.

IN dower: Palmer, the late husband of the demandant, was attainted, in pursuance of the act of the legislature of this state, entitled, "an act for the forfeiture and sale of the estates of persons, who have adhered to the enemies of this state," passed the 22d October, 1779, and his estate was thereby forfeited to the people of this state. The demandant, in this case, claimed to be endowed of the premises in question, which are a part of the real estate so forfeited.

Ogden, for the defendant.
Hoffman, for the tenant.

The Court, without hearing an argument, gave judgment for the demandant, and said they had frequently de[*28] cided, "in this court that the forfeiture of the estate of the husband, in pursuance of the act above mentioned, did not forfeit the wife's right of dower.

Judgment for demandant.

CATHCART against CANNON manucaptor, &c.

Bail are entitled to an exoneretur where the principal is convicted and sentenced to the state prison for life.

BEFORE the return of the capias issued against the defendant, as bail, application was made to a judge, after April

(a) Lord v. The Mayor &c of New York, 3 Hill, 430, n. (a) and references. People v. Gaine, 1 Johns. R. 343. See also Bissel v. Hopkins, 4 Cowen, 53, but is otherwise when the plaintiff has been the cause of delay. Williams v. Smith, 2 Caines' R. 253.