NEW-YORK, Anonymous. Anonymous. BY the court. All caufes intended for argument must be Cafes for argu- duly noticed before term to the clerk, that he may enter them on the calendar. If not fo noticed, they must go to the foot of the calendar, without regard to the date of their issues. ment must be noticed. Court will not grant a new tri John Halfey against James and Samuel Watfon. THIS was a motion for a new trial, on an affidavit of a al, where the e- difcovery of new and material evidence. The points and vidence has been fubftance are fo well and accurately condensed in the decifion applications for of the court, that it is unneceffary to do more than state the new trials, on judgment. account of a fubfequent difcove Per curiam. This is a motion for a new trial, and comes ry of material before us on the ground of a difcovery of material testimony teftimony, what that testimony fince the trial of the cause. To fee this, and judge whether is, must be ftat- it be material or not, it will be neceffary to state the former teftimony and nature of the suit. ed, that the court may judge of its materia lity. It is affumpfit by Halsey the plaintiff, against James and Samuel Watson, the defendants, as owners of the fhip Chesapeake, founded on a neglect in not taking on board some tobacco, according to contract. The witness, Heyer, who appears to have acted as agent for the plaintiff, ftates what the contract was, and the time at which it was to be on board. This agreement appears to have been made on a Friday. The witness enquired of the defendant James Watson, when the tobacco should be fent down to the veffel. The anfwer was, Send it down as quick as poffible: in confequence of which, it was fent the very next day. From three witneffes it is fhewn, that the principal part of the tobacco was on the dock by eleven o'clock in the forenoon, and that the whole was ready to be put on board by three. Thefe facts, then, are established by three witneffes. The captain fwears that, after 4 or 6 hogfheads had been brought, he requested the carmen not to bring any more, as there were appearances of a storm. This the principal carman has, in effect, denied; for he fays, he was defired by thofe on board the ship, or the captain, to bear a hand; and that he got all the tobacco down by dinner time. Here the May 1803. Halley V. teftimony is contradictory. We are to judge then, if the ma- NEW-YORK, terial evidence, as it is termed, that has been difcovered fince the trial, be really teftimony of materiality. There is one person who swears, as to the directions given by the captain. J. & S. Watson. The court are of opinion, that this is not material, fo as to warrant granting a new trial. This in two points of view: The teftimony goes only to impeach the credit of what has been fworn, and not to establish any new fact. It is merely contradicting former evidence. In that point of view it is not material: nor can it be fo in another, unless the defendants can go further. The direction not to bring down the tobacco, was to a carman. This is not fufficient; as Warfon directed it to be sent as soon as poffible. It ought to have been to the owner of the tobacco: or to have fhewn, that the requeft was brought home to the knowledge of the plaintiff: that it was made to a carman, is not fufficient. The defendant's affidavit ftates two other witneffes who are material; but does not fay to what facts they would testify: we cannot therefore judge whether they are material or not. Blackmer, it is stated, will teftify, that the tobacco was not marked till Monday. This will only go to impeach the credit of the testimony; for, three witneffes fwear to the fact of the marking being before one o'clock on Saturday. The captain himfelf does not pretend that the reason for not taking it on board, was the hogfheads not being marked, but only that he had not time. He does not pretend it was not ready to be taken on board. New trial refufed. Ephraim Hart against David Hofack. a note borrow. ASSUMPSIT for money lent and advanced, for money An accountable receipt givenfor had and received; plea, non affumpfit and payment, with an notice of fet-off. The plaintiff proved, and gave in evidence ed, fhould be the following promiffory note: taken up when the note is fet A child of fourteen "Sixty days after date, I promife to pay. Dr. David Ho- tled. fack, or order, three hundred and seventy-five dollars, value years, put with rec'd. N. York, 6th February, 1800. Eph'm. Hart." a physician on trial, to fee how The plaintiff alfo proved, that he paid this note when it he would like was due; and in addition proved, and gave in evidence the profeffion, the following accountable receipt: E cannot make an election to become a student, NEW-YORK, Hart V. Hofack. an apprenticefec. In NewYork, no fixed rate of fees for taking appren tices in the medical line. "I promise to ACCOUNT with Eph'm. Hart for his note May 1803. payable to me for three hundred and feventy-five dollars, dated this day, at fixty days. N. York, 6th February, 1800. David Hofack." From the facts of a case reserved, it appeared, that the defendant is a doctor, and alleged that the note was fo as to charge intended as an apprentice-fee for taking the plaintiff's fon. the parent with In fupport of this defence, the defendant called witneffes, who teftified that the plaintiff's fon came to the defendant the latter part of the one thousand seven hundred and ninetyyear nine, and continued with him till the spring of one thousand eight hundred; that, the fon was confidered in the defendant's fhop as a ftudent: that the witnefs understood from the fon, that he was to be fome time on trial; but the witnefs did not hear him fay how long: that, the defendant's usual apprentice-fee is three hundred and feventy-five dollars; and the witness paid this fee to the defendant, when the witness commenced his ftudies: that, the witnefs has heard the fon fay he was to pay the defendant a fee of three hundred and feventy-five dollars: that the fon had a ticket for the hofpital, which was obtained for him by the defendant, and is only granted to regular ftudents, and it would have coft five dollars to any other perfon: that the fon had free admiffion to the defendant's library, and used his books: that feveral phyficians fay it is not usual to return an apprentice-fee, and the witnefs knew one instance in which a return of the fee was refused : that one of the witneffes gave the defendant only one hundred and fifty dollars as a fee, owing to particular circumftances that, the fon, after being about three months with the defendant, faid he had been upon trial, but that he was now a regular student that the fon was a boy of about fourteen years of age that, the defendant's ufual term of apprenticefhip is three years; but there is no particular period fixed by agreement. : Elias Noah, on the part of the plaintiff, deposed, that he was very intimate in the plaintiff's family that, the defendant, by letter, which the witness faw and read, informed the plaintiff he had occafion for money, and applied to the plaintiff to borrow his note. Upon this, the plaintiff made and delivered to the defendant the note above mentioned, and the defendant figned and delivered the receipt above mentioned: the witness always confidered the tranfaction as a loan by the Hart v, Hofack. plaintiff to the defendant, and nothing else: that the witness NEW-YORK, feveral times met with the defendant in the plaintiff's family: May 1803. that the defendant was very folicitous to have the plaintiff's fon come and study phyfic with him: that the defendant used much persuasion for this purpose, both with the plaintiff and with his fon: that, finally the plaintiff and his fon confented that the fon fhould study phyfic with the defendant : that it was exprefsly agreed between the plaintiff and the defendant, that the plaintiff's fon, if he went to study phyfic with the defendant, fhould have a right to quit the defendant whenever the plaintiff's fon pleafed to do fo; that the fon, after this agreement, went to study phyfic with the defendant : that the fon attended the defendant's fhop but irregularly: that the fon, after being fome months with the defendant, adopted an opinion, that he could not, from the acquaintance he had formed in New-York, pursue his ftudies as closely as he ought to; and thereupon he left the defendant, and went to Europe: that, the witness always underflood that the fon was merely on trial with the defendant. The Judge charged, that this cafe did not depend on any general cuftom of the faculty, or of this defendant, in relation to the fee in question; but on the particular agreement; that the defendant had, no doubt, a right to fix what price he thought proper for his ftudents; but, whatever might be his established fee, he was bound by any agreement he had made; that, on this fubject, little dependence ought to be placed on the declarations of the plaintiff's fon, who was no more than fourteen years of age; particularly, as he must be confidered as under the controul of his father. Neither ought much stress, in his opinion, be laid upon the circumstance of the defendant's procuring the fon a ticket for the hofpital; as his father, or the defendant might have thought it proper to procure the fon a ticket, although he was merely on trial with the defendant: that if the jury believed that the fon had gone to ftudy with the defendant on trial; that the time for trial had elapfed; and that afterwards, the plaintiff and his fon had elected, that the fon fhould continue and ferve his apprenticeship with the defendant; then it would be their duty to find a verdict for the defendant; but if they believed, that the fon was with the defendant on trial, and that, by virtue of an agreement between the plaintiff and NEW-YORK, defendant, the fon was entitled to leave the defendant whenMay 1803. ever the fon difliked to remain with the defendant; then it would be their duty to find a verdict for the plaintiff; deducting, however, from the damages a reasonable allowance for the time the fon was with the defendant. Hart V. Hofack. The jury found a verdict for the defendant. On the above facts, it was now moved, on the part of the plaintiff, to fet it afide, as contrary to evidence. Troup for the plaintiff. The action was to recover money lent the defence, that it was given as an apprentice-fee. The question then is, whether from the evidence, it was a loan or a payment. That it was the former, is manifeft from the evidence of Noah, who faw the defendant's letter, afking to borrow money. If the money was a payment, it was fingular a request should be made to have it lent. It is not ufual for creditors to borrow their debts due, and give accountable receipts for the amount. The agreement on which the plaintiff's fon went, is exprefsly proved; he was to leave the defendant when he pleased; and the receipt was therefore worded as an accountable one; becaufe, if the fon did not continue to complete his ftudies, only a proportionable fum was to be paid. The plaintiff did not contend the three hundred and feventy-five dollars were to be recovered without deduction; but that the defendant was not entitled to the whole, against his agreement and his receipt. No argument could be drawn from the election of the fon, had it been clearly established he was only fourteen years of age, and could not elect without the concurrence, and under the controul of his father. As to the defendant's witneffes, their teftimony went to facts perfectly immaterial: the ground of the fuit was the agreement; by that, no time was specified for electing to leave the defendant: whenever the election was made, and the plaintiff's fon did leave the defendant, he was, upon his receipt, to account; and, for fo much of the ufual time of studying under the tuition of the defendant as was unexpired, a deduction was to be made: thus, and thus only, the contract in evidence, and the receipt could be confiftently explained. : Pendleton for the defendant. The application can fucceed only on two grounds; either that the verdict is against the weight of evidence, or against a rule of law arifing out of the |