1828. Langdon v. Oct. Term, pose of replenishing his store from time to time, as occasion might require. They constituted then a part of his ordinary stock in trade as a retail grocer, and I am of opinion, that the keeping of them under the circumstances, and for the purposes of ordinary retail, and not in universal quantities, is not a storing of them, within the meaning of the clause in the policy under consideration. N. York Equi table Ins. Co. It is difficult, perhaps, to affix any precise meaning to the word storing, as used in the policy. Its import is in a degree vague and uncertain. Without undertaking here to define it, it is sufficient to say, that it does not, in my judgment, reach a case like the present, Judgment for the plaintiffs. [E. Anthon, Att'y for plf. C. C. King, Att'y for defts.] Note. One of the principal points of defence relied upon by the underwriters, at the outset of this cause, rested on the ground, that the plaintiff had materially increased the risk, after effecting the insurance, by dividing off 20 feet of the rear of the lot upon which the building stood, at the distance of 75 feet from the house, and erecting thereon a carpenter's shop. This point was presented to the court at the trial, and insisted on as a substantial ground of defence: but the judge charged the jury, that if they considered the risk to be enhanced by the erection of the carpenter's shop, they would find a verdict for the defendants. The jury found, however, that the risk was not thereby increased, and the defendants, therefore, did not make this a point of defence upon the argument at bar. The defendants also offered to prove by parol, that it is the custom among underwriters, whenever they insure a grocery, to exact a higher premium than for an ordinary building. But upon the question being objected to, it was withdrawn ; the presiding judge intimated, however, that the inquiry was improper. The counsel for the plaintiff in the course of the trial, upon the examination of the surveyor of the defendants, asked him, "whether the plaintiff did not inform him, at the time the survey was made, that the store in the building was intended for a grocery?" This question being objected to was overruled by the judge, and an exception taken to his opinion by the counsel for the plaintiff. But this exceрtion was not afterwards brought forward, or in any way agitated upon the argument before the whole court. This cause was subsequently carried into the Supreme Court by writ of error, where the judgment of this court was affirmed. PETER BALLINGALL versus JAMES BURNIE. Where a defendant, in an action of assault and battery, has been held to bail without affidavit, and without an order of a judge for that purpose, to an amount exceeding $500, the court upon application will order the bail to be reduced to that sum. THE defendant was arrested and held to bail in the sum of $10,000, in an action of assault and battery, without any order for that purpose, and without any affidavit on the part of the plaintiff upon which such order could be granted. Mr. E. Wilkes, on the part of the defendant, now moved, that the bail-bond should be set aside and cancelled, or that the bail should be reduced to $500, the amount fixed by the rules of the court in ordinary arrests of the kind. He said, that in cases where there was no affidavit, or where the affidavit was defective, or not duly filed, or where the sum sworn to is not endorsed on the writ, the court would discharge the defendant on common bail. [Tidd's Prac. 165.] He Mr. Hugh Maxwell, contra insisted, that the affidavit to hold to bail might now be made, and all irregularities of proceeding cured by a subsequent compliance with the rules of the court. proposed to file such an affidavit, and to show the court that this was a proper case for heavy bail, and for the exercise of its discretion. The ordinary sum of $500 would leave the plaintiff almost without a remedy, and if the irregularities of the first step could not be cured, serious injury would result to the plaintiff. Mr. Wilkes, in reply, contended, that the proceedings were oppressive in themselves, and a contempt of court. That the affidavit to hold to bail would now come too late, or at all events, would only justify the holding to bail in the ordinary sum of $500. [Bunting v. Brown, 13 John. R. 425.] Oct. Term, 1828. Ballingall v. Burnie. Oct. Term, 1828. Austin v. Dewey. The Court, on a subsequent day, ordered the bail to be reduced to $500, and that the bail should be discharged as to the excess beyond that sum. [H. and E. Wilkes, Att'ys for the deft. W. P. Hawes, Alt'y for the plff.] AUSTIN versus DEWEY. A seaman, charged with disobedience of orders and mutinous conduct, was voluntarily discharged from the ship by his captain, who expressed regret for the difficulties which had occurred, and promised to pay the seaman his wages. In an action brought by the latter against the master, it was held, that the captain's promise operated as a waiver of any forfeiture of wages by the seaman, for disobedience of orders during the voyage. CERTIORARI from the Marine Court. The present defendant brought an action in the Marine Court against the plaintiff, as master of the ship Savannah, to recover the amount of his wages, as a seaman on board that vessel. The defence set up was disobedience of orders and mutiny on the part of the seaman, and desertion of the ship before her cargo was discharged. This defence was met by proof, that the seaman left the vessel with the captain's permission, who promised, after the arrival of the ship, to pay him his wages, and expressed regret for the difficulties which had occurred on the passage. The cause was tried before the justices of the Marine Court, without the intervention of a jury, and judgment being rendered in favour of the plaintiff, the defendant below brought the cause into this court, by certiorari. Mr. Gerard, for the captain, went into an examination of the testimony to prove the facts as to disobedience of orders: but as they are not noticed in the opinion of the court, they are not here set forth. He contended, that the shipping articles were conclusive evidence of the contract between the parties: [Abbot on 1828. Ship. 472.] and that seamen, by disobedience of orders, forfeit Oct. Term, their wages. [He cited Abbot, 456, 7. and the act of Congress, of July 20, 1790.] Mr. Clizbe, for the defendant, examined the testimony at large, and the points of law. He contended, that the defence being founded entirely upon a clause in the agreement between the master and seaman, is not to be favoured, because the latter can hardly be supposed to be acquainted with the extent of his obligations. For disobedience of orders, he is liable to punishment, and the court will not willingly superadd another. [He cited 2 Mason's Rep. 556.] OAKLEY, J. The defendant in error sued the plaintiff in error in the Marine Court, for his wages as a seaman on board the ship Savannah. The defence to the action rested on the ground, that the seaman had been guilty of disobedience of orders and mutinous conduct during the voyage, and that he had left the ship before the end of the voyage, without the permission of the сарtain. It is not necessary to consider, whether any act of disobedience or mutiny, on the part of the plaintiff below, was proved, or whether such act, if proved, worked a forfeiture of his wages. It sufficiently appeared, from the evidence in the case, that after the vessel had arrived at New-York, the captain voluntarily discharged Dewey from the ship; that he expressed his regret that any difficulty had occurred during the voyage, and promised to pay him his wages. Such a promise by the captain, under the circumstances of the case, we think operates as a waiver of any forfeiture of wages by disobedience of orders, during the voyage. The court below appear to have rested their judgment on this view of the case. We think they were right, and that their judgment must be affirmed. Judgment affirmed. [Ira Clizbe, Att'y for the deft. in error.] Austin v. Dewey. In an indictment, under the act to prevent forcible entry and detainer, [1 R. L. 96.] the defendant may be convicted of forcible detainer only. In a prosecution of this nature, the title to the premises, as between the defendant and the relator, cannot be inquired into; although the latter is bound to set forth his title, so far as to show himself to be within the provisions of the act. That title may be controverted by the defendant, but he cannot set up his own as a substantive matter of defence: because the question of title cannot be tried in this action. THE defendant in this case, was tried on the 4th day of September, 1828, before Mr. Justice Hoffman, on an indictment found by a jury, impannelled under the act entitled, " an act to prevent forcible entry and detainer." [1 R. L. 96.] At the trial the relator, for the purpose of showing his title to the premises in question, and his possession thereof, offered in evidence, 1. A lease from Peter Ogilvie to one William Peet, of the lot and premises known as 221 Delancey-street, in the city of New-York. This lease was for a term of 21 years, from the first day of October, 1825, reserving a rent of fifty dollars per annum, and was duly recorded in the office of the Register, for the city and county of New-York, on the 21st day of April, 1826. 2. An assignment of this lease from Peet to one Newcomb, for the consideration of $600, dated the first day of May, 1826, and recorded on the 13th of March, 1827. On this assignment was endorsed a condition or defeasance, by which it was agreed, that upon the payment of the last-mentioned sum by Peet to Newcomb, on or before the first day of the July next following, the assignment was to be void. This assignment was recorded on the 13th of March, 1827; and on the same day Peet released the defeasance to Newcomb.. 3. An assignment of said lease by Newcomb to one Scott, on the same 13th of March, and from Scott to the relator, on the first day of September following, for the consideration of $775. |