UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY Faculty Library REPORTS OF CASES ARGUED AND DETERMINED SUPREME COURT AND IN THE COURT FOR THE CORRECTION OF ERRORS o? -nut STATE OF NEW-YORK. BY NICHOLAS HILL, JUN. Counsellor at Law. VOt. IT. ALBANY: WM. * A. OOULD & Co., 104 STATE-STREET. NEW-YORK: OOULD, BANKS & Co., 144 NASSAU- STREET. Stereotyped and printed by G. M. Davison & Co., Saratoga Springs. 1843. Entered according to Act of Congress in the year one thousand eight hundred and forty- three, by WM. & A. GOULD & Co. in trie cleik s uui^e of the district court of the northern district of New-York. MEMBERS OF THE COCBT FOR THE n sy (0 IF IB IN THE YEAR 1812. LUTHER BRADISH, President of the Senate. REUBEN H. WAL WORTH, Chancellor. SAMUEL NELSON, Ch. J. GREENE C. BRONSON, ESEK COWEN, of the Supreme Court. Senators. GABRIEL FURMAN, MORRIS FRANKLIN, FUST DISTRICT. JOHN B. SCOTT, ISAAC L. VARIAN. DANIEL JOHNSON, JOHN HUNTER SECOND DISTRICT. ROBERT DENNISTON, ABRAHAM BOCKEE. ALONZO C. PAIGE, &RASTUS ROOT, THIRD DISTRICT. HENRY W. STRONG, ERASTUS CORNING. BETHUEL PECK, JAMES G. HOPKINS, FOURTH DISTRICT. JOHN W. TAYLOR, EDMUND VARNEY. JOSEPH CLARK, MJMNER ELY, FIFTH DISTRICT. HENRY A. FOSTER, WILLIAM RUGER. StXTH DISTRICT. ALVAH HUNT, ANDREW B. DICKINSON, NEHEMIAH PLATT, JAMES FAULKNER. SEVENTH DISTRICT. ROBERT C. NICHOLAS, LYMAN SHERWOOD, ELIJAH RHOADES, WILLIAM BARTLIT. EIGHTH DISTRICT. HENRY HAWKINS, ABRAM DIXON, fS| SAMUEL WORKS, GIDEON HARD. JUSTICES OF THE SUPREME COURT, SAMUEL NELSON, Chief Justice. GREENE C. BRONSON, ) r . . ESEK COWEN, j Justzces - CIRCUIT JUDGES. FIRST CIRCUIT, WILLIAM KENT. gECOND CIRCUIT, CHARLES II. RUGGLES. THIRD CIRCUIT, JOHN P. CUSHMAN. FOURTH CIRCUIT, JOHN WILLARD. FIFTH tJlRCUTT, PHILO GRIDLEY. SIXTH CIRCUIT, ROBERT MONELL. SEVENTH CIRCUIT, DANIEL MOSELEY. EIGHTH CIRCUIT, NATHAN DAYTON. GEORGE P. BARKER, Attorney General. [4] CASES REPORTED IN THIS VOLUME. Acker v. Witherell, .. TI2 Adsitv. Brady, .. 630 Aiken, Lannon v 591 Aikin, People v. .. 606 Allen, Briggsv 538 Alston T. Mechanics' Mutual Ins. Co. of Troy, i 329 Amidon, Hunt T 345 Anderson, Rapelye v ~ 472 Anonymous, 20 , 56 , 597 603 Artcher, Hanford v 271 Austin v. Vandermark, 259 Bank of the State of New. York, Commercial Bank of Buffalo v. . 516 Bank of Utica v. Root, 535 Barber, Kctchum v 224 , v. The West Stockbridge R.R.Co 547 Becker, Ex partc, 613 Benham, Sheldon v 129 Berthclon v. Betts, 577 JJrtts, Bcrthelon v ! 577 Bigelow v. Grannis, 206 Bingham, Ehlo v 595 Birdseyp v. Ray, 158 Bishop v. Bishop, 138 Blauvclt, Williams v 27 Bojrertv. Hertell, 492- Bond, Wallace v 536 Borst, Herrick v 650 Boyd v.Townsend, 183 Brady, Adsitv 630 Breasted v. The Farmers' Loan and Trust Co 73 Briggsv. Allen, 538 Brittan v. Peabody, .. 61 16' Brown v. Stebbins, _ 154 Bulger, Webb v _ 588 Burns, Kempshall v 468 Bush, People v 133 Bywatcr, Hughes T 551 Calkins, Mecch v 534 Camp v. The Lumberman's Bank,. 39 Gary v. Gruman, 625 Case, Van Hovenburgh v 541 Chase, Fame v 563 Child v. Starr, 369 Clark, NeUis v 424 Colev. M'Clellan, 59 Commercial Bank of Bnftalo v. Bank of the State of New-York, 516 Coster, Cowles v 550 Cowing, Kelleyv 266 Cowles v. Coster, 550 Grain, Finehout v 537 Crowner, Wood v 548 Culver v. Green, 570 Curtis v. Hubbard, 487 Dakin, Matterof, 42 Davis, Greenvault v 643 Dawsonv. Kittle, 107 Dockstader v. Sammons, 546 Ehle v. Bingham, 595 Everest, People v 71 Exparte Becker, 613 Fleming, 581 Green, 558 Kctchum, 564 Newell .. 589,608 Paddock. 544 n CASES REPORTED. Ex parte Reed, 572 Wood, 542 Fanners' Loan and Trust Co., Breasted v 73 Faulkner, Matter of. 30, 598 Fenton v. The People, 126 Finehout v. Grain, 537 Fleming, Ex parte, 581 Forman v. Stebbins, 181 Fountain, Reynolds v 52 Fuller v. Van Geesen 171 G Gale v. Mead, 109 Gardner, Keneda v 469 Gilbert, Johnson v 178 Goodyear v. Ogden, 104 Gould v. Root, 554 Grannis, Bigelow v 206 Graves v. Woodbury, 559 Green, Culver v 570 , Ex parte, 558 Greenvault v. Davis, 643 Griswold, Jackson v 522 Gruman, Cary v 625 Hanford v. Artcher, 271 Hazard, People v 107 Henry, Wright v 205 Herkimer Co. Mutual Ins. Co., Al.-iim v 187 Herrick v. Bors-t, 650 Hcrtell, Bofrert v 492 Iloyt, Miner v 193 Hubbard, Curtis v 487 , Townsend v 351 Hughes v. Bywater, 551 Hunt v. Araidon, 345 Ingraham, Sharp v 116 Ittick v. Whitney, 54 Jackson v. Griswold, 522 Johnson v. Gilbert, 178 , Sharp v 92 , Wilkinson v 4g v. Williams, 34 Koocn, Williams v 168 Kelley v. Cowing, 266 v. The Mayor &c. of Brook- lyn, 263 Kempshall v. Burns, 468 Keneda v. Gardner, 469 Ketchum, v. Barber, 224 Exparte, 564 Kittle, Dawson v 107 Larmon v. Aiken, 591 Lee, Mills v 549 v. Tillotson, 27 Lewis, Munsell v 635 Lumberman's Bank, Camp v 39 Luqueer, Prosser v 420 n Mann, Porterv 540 v. The Herkimer Co. Mu- tual Ins. Co 187 Matter of Dakin, 42 Faulkner, 30, 598 Whitney, 533 Mayor &c. of Brooklyn, Kelley, v. 263 of New-York v. Nichols, 209 M'Cagg, Miller v 35 M'Clellan, Cole v 59 Mead, Gale v 109 Mechanics' Mutual Ins. Co. of Troy, Alston v 329 Meech v. Calkins, 534 Millard v. Robinson, 604 .Stanley v 50 Miller v. M'Cagg, 35 Mills v. Lee, 549 Miln v. Spinola, 177 Miner v. Hoyt, 193 Mitchell v. Williams, 13 Moore, Park v 592 Munsell v. Lewis, 035 If Nellis v. Clark, 424 Nelson v. Sharp, 584 Newell, Exparte, 589, 608 Nichols, Mayor &c. of New-York v. 209 Ogden, Goodyear v 104 Paddock, Exparte, 544 Paine v. Chase 553 Park v.Moore, 592 Patchen v. Wilson,. . . ." .........'. 57 Peabody, Brittan v ' ', 61 CASES REPORTED. vn People v. Aikin, .. 606 v. Bosh, 133 v. Everest, : 71 , Fenton v 126 v. Hazard, 207 , Purdyv 384 v. Sly, 593 v. Supervisors of Niagara,. 20 v.WilHams, 9 Porter, v. Mann, 540 Taylor v 140 Potter, Shepardv 202 Prince, Rapelye v 119 Prosser v. Luqueer, 420 Purdy v. The People, 384 Ranney, Taylor v 619 Rapelye v. Anderson, 472 v. Prince, 119 Ray, Birdseye v - 158 Reed, Ex parte, 572 Reynold* v. Fountain, 52 Robinson, Millard v 604 Rockwell v. Rockwell, 164 Rogers, Vermilyea v - 567 Root v. , 38 Root, Bank of Utica v 535 , Gould v 554 Ryeras, Wheeler v 466 Safford v. Wyckoff, .. 442 gammons, Dockstaderv 546 Seymour v. Strong, 255 Sharp v. Ingraham, 116 v. Johnson, 92 , Nelson v 584 v. Speir, 76 Trowbridgev 38 Sheldon v. Benham, 129 Shepard v. Potter,.. 202 Sly, People v 593 Smith, White v 166 Speir, Sharp v 76 Spinola, Miln v 177 Stanley v. Millard, 50 Starr, Child v 369 Stebbins, Brown v ..... .. ............ 154 -, Fonnan v ................... 181 Stimson, Supervisor of Galway v... 136 Strong, Seymour v ..................... 255 Supervisor of Galway v. Stimnon, . 13rt Supervisors of Niagara, People v.. . aO Suydam v. Westfall, ................. 211 Taylor v. Porter, 140 v. Ranney, til'J Thompson, Walrath v 2W Tillotson, Lee v 27 Townsend, Boyd v~ H3 v.Hubbard, 351 Trowbridge v. Sharp, 3tf Vandcrmark, Austin v 259 Van Geesen, Fuller v 171 Van Hovenburgh v. Case, 54 1 Vermilyea v. Rogers, 567 W Wallace v. Bond, 536 Walrath v.Thompson, 200 Webb v. Bulger, 58 Westfall, Suydam v 2'1 West Stockbridge R. R. Co., Bar- ber v 547 Wheeler v. Ryeras, 46G White v. Smith, 166 Whitney, Ittick v 54 .Matter of, 533 Wilkinson v. Johnson, 46 Williams v. Blauvelt, 27 , Johnson v _ 34 v.Keech, 168 , Mitchell v 13 , People v 9 Wilson, Patchenv 57 Witherell, Acker v 112 Wood, Ex parte, 542 Wood v. Crowner, 548 Woodbnry, Graves v 559 Wrightv. Henry,... M 205 Wyckoff, Safford Y. 442 CASES ARGUED AND DETERMINED IN THE S ^ IP IB ES IE (D CD TET Hi It OF THE STATE OF NEW-YORK, IN OCTOBER TERM, 1842. [Continued from Volume Three.] THE PEOPLE vs. WILLIAMS. A representation, though false, is not within the statute against obtaining property &.c. by false pretences. Unless calculated to mislead persons of ordinary prudence and caution. Accordingly, where an indictment charged the defendant with obtaining V.'s gig. nature to a deed of lands, by falsely pretending that G., who held a bond and mortgage against V., was about to sue him on the bond, foreclose the mortgage &c., and that G. had so told the defendant : Held, that the pretences set forth wore not sufficient to warrant a conviction. CERTIORARI to the Erie general sessions, where Williams was convicted of obtaining the signature of one Van Guilder to a deed of lands, by false pretences. The case turned mainly upon the sufficiency of the indictment, which charged the fol- lowing facts, viz : That Williams, heretofore &c., at &c., did falsely pretend to Van Guilder that one Gray was about to sue him, the said Van Guilder, on, a bond which he, the said Gray, then held and owned against Van Guilder, and that the said Gray was also about to foreclose a certain mortgage which he VOL. IV. 2 m 10 CASES IN THE SUPREME COURT. The People v. Williams. then held and owned, and which was a lien upon a farm of Van Guilder, situate &c., and that he, the said Gray, would take said farm by such foreclosure away, and deprive the said Van Guil- de; of the. same ; and further, that the said Gray had told him, the said Williams, that he was going to sue him, the said Van Guilder, upon said bond, and was going to foreclose the said mortgage : By means of which said false pretences the said Williams did then and there unlawfully obtain the signature of said Van Guilder to a certain written instrument, commonly called a warranty deed, which said instrument bore date &c., and purported to convey to said Williams all that piece or par- cel of land known c., [describing it,] being the premises upon which the said Van Guilder then resided; wi>h intent then and there to cheat and defraud him the said Van Guilder. Whereas in truth &c. said Gray was not about to sue said Van Guilder on the bond &c., and was not about to foreclose the said mortgage &c. ; and whereas in truth &c. the said Gray had not told the said Williams that he was going to sue him, the said Van Guilder, upon said bond, or foreclose the said mort- gage &c. At the trial, evidence was given of the facts alleged in the indictment ; and the defendant's counsel requested the court to charge that the pretences laid were not such as could be made the subject of a criminal prosecution under 2 R. S. 677, 53. The court refused so to charge, and held the contrary, to which the defendant's counsel excepted. The jury found the defendant guilty ; whereupon judgment was suspended and the proceedings brought here by certiorari, pursuant to 2 R. S. 736, 27. E. Cook $ D. Tillinghast, for the defendant, contended that, to bring a case within the statute, the false pretences must oe such as may mislead men of ordinary prudence and caution while engaged in the lawful pursuits of business. (2 R. S. 677, $ 53 ; The People v. Haynes, 11 Wend. 566, per Nelson, J.; Young v. The King, 3 T R. 102, per Kenyan, Ch. /.) ROCHESTER, OCTOBER, 1342. \\ The People . William* The pretences alleged in the present case are not of thnt character. True, the indictment shows the defendant told Van Guilder a falsehood ; but that is not enough. It was a falsehood unproductive of any legal injury a mere moral irregularity, at most. Its direct tendency was to quicken Van Guilder in the payment of a debt due from him, (The, People v. Thomas, 3 /////, 169,) and, in its own nature, it was not calcu- lated to operate any other result. If he was influenced by it to attempt a transfer of his property beyond the reach of credi- tors, the act is the legitimate offspring of his own folly or fraud, and not of the falsehood charged upon the defendant The statute could not have been intended for such cases. H. W. Rogers, (district attorney) contra, insisted that the case was within both the letter and spirit of the statute. The English statute, 33 Hen. 8, c. 1, related to frauds effected by means of false tokens, and required that these should be such as might deceive persons of ordinary prudence. Though this statute extended the common law rule, it was found to be in- sufficient j and hence the enactment of 30 Geo. 2, c. 24, which embraced frauds effected by false pretences, as well as tokens. The latter has been considered as extending to every case of obtaining goods &c. by false representations, " to which persons of ordinary caution might give credit." (Young v. The King, 3 T. R. 102 et seq.) Our statute of 1813, (1 R. L. 410,) was substantially a transcript of 30 Geo. 2, ch. 24, and the course of decision under both has been the same. (See The People v. Johnson, 12 John. Rep. 292.) .The phraseology of the present statute, (2 R. S. 677, 53,) is more comprehensive than that of either of the others adverted to. It leaves no room for speculating as to the adequacy of the means employed to effect the fraud ; but looks to the fact, and embraces all " false pre- tences" by which goods &c. have been actually obtained. That this court have regarded it as extending to a new class of cases, not provided for by the law of 1813, is evident from repeated adjudications ; (The People v. Stone, 9 Wend. 182 ; 12 CASES IN THE SUPREME COURT. The People r. Williams. The People v. Genung, 11 id. 18 j 7%e People v. Haynes, id. 557 ; The People v. Herrick, 13 id. 87 j 7%e Peop/c v. Ken- dall, 25 id. 339 j) and if they have not already gone the entire length of construing it co-extensively with the fraud actually perpetrated by the pretences used, they have as yet established no limit short of that. The opinion of the chancellor in The Peo- ple v. Hayni'Sj (14 Wend. 546,) fully maintains the doctrine con- tended for here. PER CUHIAM. It is impossible to sustain this indictment without extending the statute to every false pretence, however absurd or irrational on the face of it. The charge is of falsely representing to Van Guilder that he was about being proceeded against for a debt due from him, and that, by means of the repre- sentation, his signature was obtained to a deed of lands. How such a result was made to follow from means apparently so inadequate, we are left to conjecture. Looking to the case made by the indictment, Van Guilder's only ground of com- plaint would seem to be, that in attempting to defraud another he had himself been defrauded. But whatever the fact is in this particular, there can be no doubt that an exercise of com- mon prudence and caution on his part would have enabled him to avoid being imposed upon by the pretences alleged ; and if so, the case is not within the statute. (See GoodhaWs case, Ry. $ Mood. Cr. Cas. 461, 463 ; Rose. Cr. Ev. 362.) New trial ordered. (o) (a) See The People v. Thomas, (3 Hill, 169) and the cases cited in note (a) to that case. ROCHESTER, OCTOBER, 1842. 13 Mitchell v. MITCHELL vs. WILLIAMS & ROBERTS. To maintain trover against two joint bailees, a demand of and refusal by one ia not sufficient ; a conversion by both must be shown. In the case of partners the rule is different ; for each being the general agent of the other, a refusal by one is evidence of a conversion by both. Per COWEN, J. W. &. R. having hired of M. a number of cows for a year, the former (W.) took possession of and kept them on his farm, several miles distant from R.'s resi- dence. A few months after the hiring, the cows were sold under an execution against W., issued upon a void justice's judgment At the expiration of the year, the cows being still in W.'s possession, M. demanded them of him and be refused to deliver them up. A like demand was made of R. at his residence, who said " he would have nothing to do with the matter," and refused to go and see W. on the subject Held, in trover against W. &. R., that whether enough had been shown to prove a conversion by R. was a question of fact to be sub- mitted to the jury ; and the circuit judge having directed them to find a convcr. sion by both, a new trial was ordered. If R.'s refusal to act in the delivery of the cows proceeded from an honest desire to avoid a litigation which he supposed might arise out of the sale under the void judgment, he was not guilty of a conversion. Per COWEN, J. Otherwise, if his refusal to act proceeded from a design to countenance or aid W. in unlawfully withholding the cows from M., or to embarrass the latter in his en- deavor to obtain possession. Per COWEN, J. In general, the property being present, or under the undisputed control of the party of whom it is demanded, his mere neglect to deliver, without saying a word, or a refusal on his part to point out the property and act in the delivery, will be prima facie evidence of a conversion. Per COWEN, J. Where there is proof of a positive and unexcuscd refusal to deliver on demand made, the judge may advise the jury, as matter of law, to find a conversion. Per COWEN, J. TROVER for six cows, tried at the Oneida circuit, in April, 1842, before GRIDLEY, C. Judge. The case was this: On a settlement of accounts between the plaintiff and the defendant Williams, in April, 1840, a balance was found due from the latter, who thereupon " turned out" the cows in question to apply on the account. Roberts, the other defendant, was present and acted as interpreter for Williams, his brother-in- law, who is a Welchman. After the cows were so turned out, the plaintiff hired them to the defendants for one year at $2,50 14 CASES IN THE SUPREME COURT. Mitchell v. Williams. per head. They were left with Williams for his use, and never cape to the actual possession of Roberts, he living some four or five miles from Williams. After the expiration of the year the cows were demanded of Williams, and he refused to give them up. On a like demand being made of Roberts at his resi- dence, he replied that " he would have nothing to do with the matter," and refused to go and see Williams on the subject. The defendants proved that, in October, 1840, four of the cows in question were sold to one Jones, in virtue of two executions upon judgments rendered by a justice of the peace against Wil- liams in favor of Billings and Owens ; but it turned out that both judgments were void, having been rendered on confession for more than $50 each, without the affidavit required by 2 jR. S. 245, 114, sub. 3. All the cows in question, except one which had been killed by a son of the defendant Williams, were on the premises of the latter when the demand was made. The defendants' counsel insisted that no sufficient evidence of a conversion by Roberts had been given j but the circuit judge ruled otherwise, and directed the jury to render a verdict for the plaintiff against both defendants for the value of the five cows. The defendants' counsel excepteM ; and the jury having found a verdict in accordance with the judge's directions, the defen- dants now moved for a new trial on a bill of exceptions. J. Kernan $ .7. A. Spencer, for the defendants. W. $ C. Tracy, for the plaintiff. By the Court, COWEN, J. The plaintiff being the owner of the cows, bailed them to the defendants for one year at a stipu- lated compensation. The bailment was for the special benefit - of Williams, with whom the cows were left, Roberts residino * & four or five miles distant from him. At the expiration of the year the cows were demanded by the plaintiff of Roberts at his residence. Roberts said he would have nothing t6 do with the matter. The single question is whether this was prima facie ROCHESTER, OCTOBER, 1842. 15 Mitchell c. Williams. evidence of a conversion by him. There was no dispute on the argument, that a conversion had been made out against Williams. No doubt is raised that assumpsit might have been brought against both, on the Joint promise to re-deliver which is implied by law; (Story on Bailin. 89, ^ 116;) but it is denied that trover will lie against Roberts, except for an actual conversion by him, to be shown by at least an unqualified re- fusal to deliver. It was held in Lockwood v. Bull 4" Eager, (1 Cowen, 322,) that the two actions of trover and assumpsit are not exactly concurrent : that is to say, mere neglect of one or both to de- liver the property to the bailor will not necessarily furnish ground for an action of trover ; but in a case of bailees, though their contract be joint, yet, to sustain trover against them joint- ly, a wrongful conversion by both must be shown. The de- fendants were not in the case of partners, where each being the general agent of the other, a refusal by one is evidence of a conversion as to both. (Holbrook v. Wight, 24 Wend. 178.) The sale of the cows on the judgments and executions was a mere sham. The proceeding *was a nullity. The cows re- mained with Williams ; and there was nothing in the case therefore which necessarily embarrassed either of the defen- dants in delivering them. If Roberts had been in the ac- o tual possession, and, to a demand, had made the same re- ply, " I will have nothing to do with the cows," or " with the matter," such language might, per se, have been suffi- cient evidence of a conversion. (Smith v. Young, 1 Campb. 439.) But did he mean any thing more than that he would remain neutral in the controversy which he thought might perhaps arise out of the sale 1 The plaintiff had a right to take the cows from Williams and drive them away. Was there in Roberts' act any thing beyond a nonfeasance 1 The goods came lawfully to his possession ; and to make his mere inaction decisive evidence of a conversion in other words, to make it a refusal there should have been an intent J6 CASES IN THE SUPREME COURT. Mitchell . Williams. to embarrass the plaintiff in his steps to obtain possession. It is not to be denied that Roberts' conduct was open to such a construction, He was the near relation of Williams, and his advice to give up the cows would probably have been decisive. If. by refusing to act, he intended to collude with, or counte- nance or aid Williams in depriving the plaintiff of his right, by means of the sham judgments and executions, that would amount to a positive refusal, and so furnish the usual evidence of a conversion. Indeed, if unexplained, it would be decisive evi- dence of a conversion ; for a refusal is considered such in prac- tice. I will not deny that a judge may advise a jury, as mat- ter of law, on a demand and refusal unexcused, to find a con- version. The refusal would be an exercise of a dominion over the property of the owner incompatible with his right. (Bris- tol v. Burt, 7 John. Rep. 254, 257.) But there must be a re- fusal ; something more, I think, than a naked withdrawal from all dispute, in good faith, and from a desire to avoid getting between two fires. In Lockwood v. Bull ^ Eager, Bull might, by going to James, who had got the property and held it ad- versely, have been instrumental in its restoration. But the pe- culiar condition of the property, it being in dispute, was held to be an adequate excuse. Under' ordinary circumstances, the property being present or under the undisputed control of the defendant, a mere neglect to deliver, without saying a word, or a refusal to point out the property and act in the delivery, would be prima facie evidence of a conversion. As was said by Wood- worth, J. in Lockwood v. Bull fy Eager, " mere non-compliance with the demand, after a reasonable time has been afforded for a delivery, would be tantamount to a refusal, and presumptive evidence of a conversion, and throw upon the defendant the burthen of rebutting the presumption." (1 Chit. PL 159, Jim. ed. of 1840.) Non-compliance is a virtual refusal ; (Durell v. Mosher, 8 John. Rep. 445 j) but in the case at bar it was qualified, or at least might have been so by the circumstances. In Lock- wood v. Bull 4r Eager, a majority of the court acting for the jury on a case, found for the defendant upon facts not stronger for ROCHESTER, OCTOBER, 1842. 17 Mitchell t>. Williams. him, I think, than we have here for Roberts. The difficulty is, that here the judge told the jury in so many words to find for the plaintiff. Had he told them the reply of Roberts \vas equivocal, and left its meaning to them, and they had put the same construction upon it as he did, that would have been clearly right. (Harger v. JW Mains, 4 Watts, 418.) I am certainly with him in the suspicion that what Roberts said might have been mere affectation of a desire to avoid difficulty, and intended to countenance Williams and his family in holding over against the plaintiff; but strictly, I think the question should have been submitted to the jury. With the case of Lockwood v. Bull . The Lumbermen's Bank. fendant's counsel again consented to postpone to a subsequent day for the accommodation of the plaintiff, whose witnesses had not arrived. Owing to the amount of criminal business, the cause was not again called. H. H. Martin, for the plaintiff. As the defendant consented to the postponement, he cannot now move for judgment. By the Court, BRONSON, J. If the cause had been passed for the accommodation of the defendant, or if there had been a mutual agreement that the cause should not be tried before a particular day, and it had been passed before the day arrived, the defendant would not be entitled to judgment. But here the defendant was ready, and only consented to have the cause passed for the accommodation of the plaintiff, who had two opportunities to try it. The motion must be granted unless the plaintiff stipulates and pays costs. Ordered accordingly. CAMP & CAMP vs. THE LUMBERMEN'S BANK. This court has no power to compel an individual to furnish the certificate required bj the third section of the " act to amend the law in relation to suits against for. eign corporations ;" (Seat. L. of '42, p. 227 ;) and this, though he be an attorney of the court. Nor can the officers of a private corporation be thus compelled to furnish the cer- tificate. If the person applied to refuse to give the certificate, the remedy of the plaintiff, it seems, is by an action at law, or a bill of discovery in equity. Per BRONSON, J. ON serving an attachment against the defendants, who are a foreign corporation, the sheriff of the county of Chautauque called on Abner Hazletine, Esq. an attorney of this court, delivered him a copy of the writ, and required from him a cer- tificate in relation to certain choses in action which were alleg- 40 CASES IN THE SUPREME COURT. Camp v. The Lumbermen's Bank. ed to be in his hands, and to be the property of the bank. Mr. Hazletine gave the sheriff a certificate specifying several choses in action in his possession which were the property of the bawk, and as to others he declined to make any disclosures, on the ground that he could not do it without a breach of the confidential relation existing between himself and the bank as attorney and client. A. Taber, for the plaintiffs, now moved for an order that Mr Hazletine furnish the required certificate. S. H. Hammond opposed the motion. By the Court, BRONSON, J. It will not be necessary to con- sider the case in reference to the confidential relation of attor- ney and client which is said to exist between Mr. Hazletine and the bank. If the plaintiffs have a right to the discovery which they seek, I think they cannot attain their object in this form of proceeding. By the act of the last session, the shares which any foreign corporation may hold in any bank &c., and all trust property, real or personal, and the funds, deposits, moneys or credits, held by or due from any bank, corporation or individual in this state, for any foreign corporation, are subjected to attachments in suits at law against such foreign corporation. (Stat. 1842, p. 227, ^ 1.) The attachment is to be executed by leaving an attested copy with the cashier of the bank, the secretary of the insurance or other company, or with the individual holding such trust property. $ 2.) On the application of the sheriff, " the cashier, secretary, or clerk, or individual shall furnish him with a certificate under his hand, in his official capacity, if he be an officer," of the property " held by such company, corporation or individual for the benefit of such foreign corporation." ( 3.) Although the duty of making the certificate is express- ly enjoined, no provision has been made for enforcing perform- ance, and I see no principle upon which we can order an indi- ALBANY, DECEMBER, 1842. 41 Camp v. The Lumbermen's Bank. vidual, or the officers of a private corporation, to do such an act. Mr. Hazletine may be liable to an action for withholding the certificate, or the plaintiffs may have a discovery in a court of equity ; but I think they cannot attain their object in this form. It is of no importance that Mr. Hazletine is an attorney of this court. He is not charged with any violation of the duty which he owes to his clients ; but as to this matter he stands before us like any other individual, and if we can order him to make the. certificate, we could make the like order upon any other man who had refused to make discovery concerning property of the defendants supposed to be in his hands. An officer of the court will sometimes be ordered to do a particular act in relation to some proceeding in court, and per- formance will be enforced by attachment. A sheriff may be required to return a writ, or an attorney to pay over money which he has collected for his client. And, where there is no prior proceeding in court, a public officer will sometimes be re- quired by mandamus to perform a duty enjoined upon him by law. But I am not aware of any principle which will warrant us in acting in this manner upon individuals who sustain no offcial relation to the court or public, or upon the officers of a private corporation. "^ Motion denied. VOL. IV. 42 CASES IN THE SUPREME COURT. Matter of Dakin. Matter of S. D. DAKIN, an attorney of this court. In order to give the right of proceeding summarily against an attorney to compe. the payment over of money in his hands, it is not essential that he should have received the money in any suit or legal proceeding, or that he should have been employed to commence legal proceedings. Per BRONSON, J. It is enough if the money was received by the attorney in his professional charac- ter ; as, where the demand on which he received it was left with him under in- structions to call for payment, or obtain better security, but without any direc- tions to sue. Per BRONSOX, J. Otherwise, if the circumstances be such as not to afford a presumption that he was entrusted in the transaction by reason of his professional character. On an application for an order that D., an attorney, pay over moneys received by him for R., it appeared that L., who was a land-agent, took a bond and mort- gage in favor of R. and sent him the bond but retained the mortgage for the purpose of receiving payments on it ; that several years afterward, L., with the assent of those for whom he acted, among whom was R., transferred his land- agencies to D. who attended chiefly to that kind of business ; that D. never had the bond in his possession, nor had he instituted proceedings to collect the mort- \ gBg 6 * or been instructed to do so ; but he received several sums of money on the mortgage and refused to pay them over, though demanded. Held, not a case for the summary interference of the court, and the motion was therefore denied. PRIOK to 1831, Richard R. Lansing, who was an attorney at law, resided atUtica where he kept a land-office, and acted as the agent of several land-owners, and among others he acted in such land-agency for the executors of Simon Remsen, and took a bond and mortgage for them from one Anthony Bradt in the year 1827, for securing the payment of 82400. The bond was transmitted to the executors in the city of New- York, but the mortgage was retained by Mr. Lansing for the purpose of re- ceiving payments upon it. In 1831, Mr. Lansing removed from Utica, and on that occasion transferred his land-agencies, with the assent of his principals, including the executors of Remsen, to Samuel D. Dakin, who resided and kept an office at Utica as an attorney at law. He did very little business as an attorney, and the last suit in which he was concerned was en- tered in his law register in August, 1836. His principal busi- ness was that of a land-agent, for which he was compensated ALBANY, DECEMBER, 1842. 43 Matter of Dakin. by his employers by a commission of five per cent, on the mo- neys received and paid over. He kept a book in which the moneys received in the course of his agency were entered to the credit of the several persons to whom they belonged. In that book the moneys received from Bradt were- entered. He never had the bond of Bradt in his possession, and was never instructed to institute any proceedings either at law or equity for the collection of the money, nor did he ever institute any such proceedings. He received payments from Bradt on the mortgage from time to time, the first payment being in April, 1834, and the last in May, 1839, when the mortgage was fully paid. Of the moneys thus received, about $1200, including interest, still remains in his hands, and he has neglected to pay it over on demand made, alleging as his excuse that he is in- solvent. Both of the executors of Remsen are dead, and Ben- jamin W. Strong is now administrator of Remsen with the will annexed, and as such claims the money in question. Mr. Strong in his affidavit stated that he had no doubt the executors of Remsen employed and confided in Dakin on account of his pro- fessional character and standing as an attorney of this court ; and that he believed Dakin prosecuted some demands for the executors in his professional character. All this was very fully denied by Mr. Dakin, and, as to the leading features of the case, he was confirmed by two witnesses. R. W, Peckham, on behalf of Mr. Strong, the administrator, moved for an order that Dakin pay over the money, or that an attachment issue against him. He cited and commented on the following cases : Ex parte Stoats, (4 Cowen, 76 ;) Matter of Aitkin, (4 Barn. # MA. 47 ;) De Woolfe v. , (2 Chit. R. 68 ;) Ex parte Corpus Christi College, (6 Taunt. 105 ;) Cocks v. Harman, (6 East, 404 ;) Matter of Lowe, (8 East, 237 ;) 2 Petersd. M. } 613 ; Matter of Knight, (1 Bing. 91.) (a) (a) A better report of thii case will bo found in 7 Moore. 437, rum. Ex partt Hall 44 CASES IN THE SUPREME COURT. Matter of Dakin. S. J. Cowen, contra. By the Court, BRONSON, J. The summary jurisdiction exer- cised by the courts for the purpose of compelling attorneys to perform their duty to clients, is not only just in itself, but it exerts a wholesome influence upon the whole body of the legal profession. If the client were driven to the dilatory and some- times inefficient remedy by action when the attorney improper- ly neglects to pay over money, a few unworthy members of the bar would bring 6dium upon all the rest. It is not essential to th'e exercise of this summary remedy that the attorney should have received the money in any suit or legal proceeding, or that he should have been employed or instructed to commence legal proceedings. It is enough that the money was received in his character of attorney, as where a dema-nd is left with him with instruction to call for payment, or obtain better security, but without any directions to sue. When the attorney is also engaged in other business, and the particular character in which he was retained does not affirma- tively appear, it may be inferred from the nature of the em- ployment, and the other circumstances of the case. In De Woolfe v. , (2 Chit. R. 68,) Bayley, J. said the recent doc- trine was, that whenever a person had been employed in con- sequence of his being an attorney, though not in an action, the court would interfere summarily to compel him to do what was right. In that case the attorney had received money under a power which described him as a counsellor and attorney, and the court said, it was otherwise manifest that the employers con- templated the party's professional character ; and he was ordered to account and pay over the money. The rule was well stated by Abbott, Ch. J. in the Matter of Mtkin, (4 Barn. & Aid. 47.) " Where," he says, " an attorney is employed in a matter wholly unconnected with his professional character, the murt will not interfere in a summary way to compel him to execute faithfully the trust reposed in him. But where the employ- ALBANY, DECEMBER, 1842. Matter of Dakin. mcnt is so connected with his professional character as to af- ford a presumption that his character formed the ground of his employment by the client, there the court will exercise this ju- risdiction." The defence of the attorney in that case was put wholly on the ground that he had not been employed to prose- cute any suit ; and as that position was untenable, the motion was granted. In Ex parte Stoats, (4 Cotoen, 76,) a like ob- jection by the attorney was overruled. In this case there seems to hare been no written power, and as the executors are dead, we cannot have their statement con- cerning the nature of the retainer. Mr. Strong believes that Mr. Dakin prosecuted some other demands for the executors in his professional character. If that were so, it would not be conclusive without showing that those demands were received upon a similar retainer with the Bradt mortgage. But the fact that Mr. Dakin was ever employed or acted for the executors in a professional character is fully denied. In addition to this, Mr. Lansing swears that he was the land-afent of the execu- tors in respect to certain real estate, and that he took this mortgage in*the course of that agency, which was subsequent- ly transferred to Mr. Dakin. And Mr. Dakin and his clerk, Mr. Gillmore, both swear that the money in question was re- ceived as such agent, and in no other character or capacity. There is, then, not only the absence of any direct proof that the money was received as an attorney, but there is direct proof to the contrary. The fact that Mr. Dakin was an attorney, may hare had some influence upon the executors in selecting him as their agent ; but there is no direct proof that such was the case, and the nature of the business was not such as to raise the pre- sumption that he was retained in his professional character. Such agencies for land-owners have no necessary connection with the business of an attorney, and are most commonly un- dertaken by men who do not belong to the legal profession. On the whole, we think a case has not been made out for 46 CASES IN THE SUPREME COURT. Wilkinson . Johnson. exercising this summary jurisdiction over Mr. Dakin as an offi- cer of the court. Motion denied. (6) (6) In re G. Chitty, (2 Dowl. Pr. Cos. 421,) a rule was moved for, calling on Mr. Chitty, an attorney, to shew cause why he should not give up to Mr. Dow- land a promissory note for 300Z., and a policy of insurance on the life of Mr. Dow. land. The affidavit on which the motion was founded stated that in 1829, Mr. Chitty lent Mr. Dowland 300Z. on the security of a note for that amount and a policy of insurance on the life of the borrower. In 1831, Mr. Chitty sold for Mr. Dowland a reversionary interest in a sum of 7000L From the proceeds of this ale, Mr. Chitty paid himself the 300Z. with interest and expenses, and the balance to Mr. Dowland. On this settlement, the latter required the note and policy to bo given up to him, when Mr. Chitty said he had left the note at home, but would either forward it the next day or destroy it. The note and policy were not sent, and nothing further was heard from them until sometime afterwards, when the per- onal representatives of a banker at Shaftsbury, where Mr. Chitty lived, applied to Mr. Dowland for the amount of the note, and threatened to enforce their claim by action. Then it appeared that Mr. Chitty had paid the note into his bankers as a security for money advanced to him. PER CUKJAM. We flunk it would be carrying the rule further than the authori- ties warrant, if- we were to grant this motion. The misconduct of Mr. Chitty in not returning the note was not misconduct in his employment as an attorney, the transaction between the parties being not that of an attorney and client, but of borrower and lender. Rule refused. WILKINSON vs. JOHNSON. THE SAME vs. THE SAME. On moving for a consolidation of actions it is not enough for the defendant to show that the causes of action are such as may be joined in one declaration ; but it must affirmatively appear, in addition, that no defence is intended in either of the suite, or that the questions which will arise in them are substantially the same. It is not an objection to a consolidation that the actions are based on different transactions, provided no defence be intended in either, and the rule is only ask- ed to avoid the expense of entering up several judgments. Per BRONSON, J. Nor will the rule in such case be refused even though the suits are to be defend- ed, provided the questions to be tried are identical ; as where the suite are brought upon distinct contracts originating in different transactions, and the de. ALBANY, DECEMBER, 1842. 47 Wilkinson . Johnson. fendant does not deny the validity of the contracts, but sets up some matter in discharge, going to the whole of the plaintiff's demand e. g. payment, release, accord and satisfaction, insolvency, bankruptcy, &c. Per BKONSO.N, J. CONSOLIDATION. These two suits were commenced, one on the first, and the other on the second day of September last. Both actions were assumpsit, and it appeared from the bills of particulars of the plaintiff's demands that one action was brought for money had and received by the defendant to the plaintiff's use in the year 1837, and the other action was brought upon a written undertaking of the defendant to pay the plaintiff $1000 for negotiating the sale of a bond and mort- gage in the year 1838. The defendant swore to a defence on the merits in both suits, but did not state the nature of the de- fence in either case. E. F. Smith, for the defendant, moved for an order consoli- dating the two actions. He cited 3 Wend. 441 ; Grah. Prac. 501. M. T. Reynolds, opposed the motion, and cited 9 John. 262 ; 19 Wend. 23. By the Court, BRONSON, J. On moving for a consolidation it is not enough for the defendant to show that the causes of action in the two suits are such as may be joined in one decla- ration. It must appear in addition, that no defence is intended in either of the suits, or that the questions which will arise are substantially the same in both. (Dunning v.Bank of jiuburn, 19 Wend. 23.) Although the two actions may be based upon different transactions, yet if no defence is intended, and the consolidation is only asked for the purpose of avoiding the ex- pense of entering up several judgments, there cannot often be a good objection against granting the motion. But when a de- fence is to be made in one or both of the suits, very different considerations arise. If only one of the actions is to be defend- 48 CASES IN THE SUPREME COURT. Wilkinson r. Johnson. ed, there can be no good reason for delaying the plaintiff in the other. His acknowledged right in the one case should not be withheld until another matter, which is in controversy be- tween the parties, can be determined. It does not occur to me that there can be any case for a consolidation where there is a defence in one action, and none in the other. When both actions are to be defended they may very proper- ly be consolidated, where the questions to be tried will be sub- stantially the same in both. The questions may often be iden- tical ; as where the suits are brought upon different contracts growing out of the same transaction, and the defence is, that by reason of fraud, usury, want of consideration, or the like, there never was a valid contract ; or where the consideration tipon which the contracts were made has wholly failed. So too, the questions to be tried may be identical although the contracts were based upon different transactions j as where the defendant does not deny the validity of the contracts, but sets up some matter in discharge of the actions, as payment, release, accord and satisfaction, insolvency, bankruptcy, and the like, going to the whole of the plaintiff's demands. In such cases the matter in controversy between the parties may as well be set- tled in one action as in several ; and a consolidation will not only result in a saving of time and expense to the parties, but it will relieve courts and j.urors from the useless burden of twice investigating the same matter. But when different questions are to be litigated in the two actions, a motion for consolidation, which is always addressed to the discretion of the court, ought not to be granted. The venue and the witnesses may be different in the two suits, and the investigation upon one trial of several transactions which have no connection with each other, would tend to embarrass both court .and jury, and might result in a verdict which would not do complete justice to the parties. It is true that the costs may be increased by having two trials. But the parties stand upon equal ground. Both insist that they are right, and each goes on at the peril of paying costs if he fails. In one respect ALBANY, DECEMBER, 1842. Wilkinaon t>. Johnson. the defendant has the advantage in leaving the suits to proceed separately. If he succeeds in either, he will recover the costs of that suit, although he may fail in the other. But if the ac- tions are consolidated, and the plaintiff succeeds as to either of his demands, though he fails in the other, he will recover costs ; and thus the expenses of the whole litigation will fall upon the defendant, notwithstanding his success as to one half of the controversy. The papers on which this motion is made are defective in not showing that the same question or questions are to be liti- gated in both actions. A defence on the merits is sworn to in each, but the nature of the defence is not disclosed. In one suit it may be a denial that any valid contract was ever made, while in the other the original liability may be admitted, and some matter may be set up in discharge of the action. We see that the plaintiff sues upon distinct contracts springing out of transactions which have no connection with each other. But if that did not appear, the defences and the questions to be litigated in the two suits may be entirely different. It is al- ways incumbent on the moving party to make out a prima facie case. If he asks for a consolidation where a defence is to be made, he should state. enough of the nature of the actions and the defence to show that both suits will turn upon the same question. The defendant has fallen far short of satisfying that rule. Motion denied. VOL. IV. 50 CASES IN THE SUPREME COURT. Stanley t>. Millard. STANLEY and others vs. MILLARD. A bill of particulars furnished pursuant to a judge's order, containing several charges for cash, without stating whether the money was lent to, paid out for, ot received by the defendant, is insufficient. So of a bill containing charges for notes, giving the amount of each, without any other description. So of a bill containing items for goods sold &c., giving dates and sums with par- ticularity, and then adding : " The same items as above in every respect in each year, and on every day of the same, (Sundays and fourth of July exceptcd,) from Sept. 1st, 1838, to Jan'y let, 1840." In general, where a bill of particulars furnished under an order is insufficient, the par- ty should apply to a judge at chambers for a further order ; and if a second in- sufficient bill be delivered, the party may then apply to the court. But if the first bill be so clearly evasive and unsatisfactory as to show that the par- ty delivering it did not intend to comply with the judge's order, the opposite par- ty may then move the court at once, without obtaining a second order at chambers. BILL of particulars. The declaration contained the common counts in assumpsit. The defendant obtained and served a judge's order that the plaintiffs deliver a bill of the particulars of their demand on or before the 7th day of October, or that, they show cause &c. No cause being shown, the order was made absolute that the plaintiffs deliver a bill by the 12th of October. On the llth of October the plaintiffs delivered a bill in w r hich the defendant was charged, (giving dates and sums with particularity,) with goods sold, .money, notes, and various other items, amounting to several thousand dollars. Then fol- lowed these words " The same items as above in every respect in each year, and on every day of the same, (Sundays and fourth of July excepted,) from September 1st, 1838, to January 1st, 1840." After this followed other items, with dates, to the amount of several thousand dollars ; and the whole was con- cluded with these words " The same items in every respect as above in each year and every day of the year, (Sundays ex- cepted,) from January 1st, 1840, to October 1st, 1842." On an affidavit that the bill was false and evasive ALBANY, DECEMBER, 1842. 51 Stanley r. Millard. /. A. Millard, in pro. per., now moved for judgment of non pros. He cited Purdy v. Warden, (18 Wend. 671 j) Barnes v. Henshaw, (21 id. 426.) J. D. Willard, for the plaintiffs, read an affidavit that the bill was delivered in good faith. He cited Humphrey v. Cot- tleyou, (4 Cowen, 54 j) Goodrich v. James, (1 Wend. 289 j) GraA. Prac. 518. .By Me Court, BRONSON, J. This is not a sufficient bill of particulars. It contains several charges for " cash" in different sums, from two dollars up to more than two thousand. But whether it was money lent to, or paid out for the defendant, or whether it was money received by him to the use of the plaintiffs does not appear. The defendant is also charged with " one note $1000," another note of the same amount, and " one note $500." Whether these notes were made by the defen- dant or by some one else, or whether they were sold to the de- fendant, or delivered to him for collection, is not stated. This is not the proper way to prepare a bill of particulars. It does not give the party the information which he has a right to de- mand. But the worst features in the bill are the general cla'uses in which the plaintiffs, who are merchants or manufacturers and keep books of account, claim each and all of the items in the bill on every day, except Sundays and the fourth of July, in a period of more than four years. They claim several millions of dollars in a case where the true amount probably does not exceed a few hundreds, and where the defendant insists that a belance is due to him.. This is not a fair compliance with the judge's order. > As a general rule, when the bill is not sufficient, the party should apply to a judge at chambers, who will make an or- der for further or better particulars ; and if a second insuffi- cient bill is delivered, the party demanding- it may then apply to the court. But where the first bill is so clearly evasive and 52 CASES IN THE SUPREME COURT. Reynolds r. Fountain. unsatisfactory as to show that the party delivering it did not intend to comply with the judge's order, the other party may move the court at once, without obtaining a second order at chambers. (Purdy v. Warden, 18 Wend. 671.) Although this bill is clearly insufficient, I am satisfied from the affidavits that no wrong was actually intended. The plaintiffs should therefore be allowed to deliver further and better particulars of their demand on payment of the costs of this motion. Ordered accordingly. REYNOLDS vs. FOUNTAIN, adm'r, &c. Where judgment as in case of nonsuit for not noticing a cause for hearing before referees is set aside on payment of costs, the plaintiff must notice the cause for hearing immediately ; and if he fail to do so, the defendant may enter his de- fault and perfect a second judgment, without serving a new notice under the 44th rule. If the plaintiff need time to bring on the hearing, he should ask it when the mo- tion to set aside the judgment is made, and have the allowance inserted in the order. The same rule prevails where a default for not pleading is set aside. If the defen. dant do not plead immediately, another default may be entered without giving a new notice or entering a new rule. Per BRONSON, J. THIS cause was referred in April, 1841. In November of that year the defendant served notice, pursuant to rule 44, requiring the plaintiff to notice the cause for a hearing within twenty days, or elect to discontinue and pay costs. The plain- tiff having neglected to proceed, the defendant, in December following, Centered a rule for, and perfected judgment as in case of nonsuit, pursuant to the aforesaid rule. On the 5th of February, 1842, the court, on the plaintiff's motion, made an order that the judgment be set aside on payment of costs ; but no further directions were given. The costs were paid, but the plaintiff took no measures to bring on the hearing. The ALBANY, DECEMBER, 1842. 53 Reynolds t>. Fountain. plaintiff's attorney died on the 5th of March, 1842. In August following, notice was given to the plaintiff to appoint a new at- torney, and on the 8th of September the appointment was made and notice of it given to the defendant. On the 5th of Octo- ber the plaintiff's default for not proceeding to a hearing was again entered, and judgment as in case of' nonsuit perfected. Woodruff" # Young, for the plaintiff, moved to set aside this judgment for irregularity. They insisted that the defendant should have served a new notice to proceed to a hearing in twenty days, and could not act upon the notice given prior to the first judgment, which was set aside. Ji, Taber, for the defendant, likened.it to the case of a judg- ment by default for not pleading pursuant to a rule for that purpose. If the judgment be set aside, and the party does not plead, his default may be again entered, without a new rule to plead. If the plaintiff in this case wanted any further terras when the first judgment was set aside, he should have asked for them at that time. By the Court j BRONSON, J. I think the defendant's counsel is right on this point of practice. Nothing but the judgment was set aside. The notice which had been given requiring the plaintiff to proceed to a hearing was not touched, and the de- fendant was at liberty to act upon it and enter a new default without further notice. Prior to 1837, the practice was to en- ter a rule and give notice that the plaintiff proceed within twenty days. (See 44M rule of 1830.) But in 1837, this and many other useless rules were abolished, and nothing but a notice was required. The analogy between this notice to proceed in twenty days and a rule to plead within the like pe- riod is complete. If the default entered in either case for not complying with the notice or rule be set aside, it cannot be ne- cessary to give a new notice or enter a new rule. The old one has not ceased to operate, and another default may be 54 CASES IN THE SUPREME COURT. Ittick v. Whitney. based upon it. When a default for not pleading is set aside, and no further order is made, the party must plead immediate- ly, or another default may be entered. If he wants time, he should see that time is given by the order. So here, when the first judgment was set aside, the plaintiff should have asked as much time as he thought necessary for bringing on the hearing, and the allowance should have been inserted in the order. The judgment is regular, but the plaintiff must be relieved on terms. Ordered accordingly. ITTICK and others vs. WHITNEY. Under the act of 1840, (Sett. L. of '40, p. 330, 3,) an attorney fee " for attending the trial of a cause" is taxable, though the circuit in reference to which the charge is made was not held, by reason of the non-attendance of the judge ; but otherwise as to a counsel fee. The costs of a pending chancery proceeding cannot be taxed in a suit at law. M. Hoffman, for the defendant, moved for a retaxation of costs. The action was noticed for trial at the April circuit. The circuit judge did not attend, and the circuit was adjourn- ed without day pursuant to 2 R. S. 203, 1921. At a sub- sequent circuit the cause was tried, and the plaintiff had a ver- dict. He taxed attorney's fee $3, and counsel fee $5, for at- tending prepared to try the cause at the circuit which fell through. He also taxed the same items, without objection, for the circuit at which the cause was tried. Pending the suit, which was an action of ejectment, the plaintiff filed a bill in chancery, and obtained an injunction upon the defendant not to commit waste. The defendant ap- peared in that suit, but nothing further was done before the ejectment suit was tried and judgment perfected. The plain- tiff taxed in his bill in the ejectment suit $30 for the costs of the chancery suit, which is still pending. ALBANY, DECEMBER, 1842. 55 Ittick t>. Whitney. L. Ford, for the plaintiffs, opposed the motion. By the Court, BRONSON, J. As the April circuit fell through in consequence of the non-attendance of the judge, I think the costs of that circuit stand upon the same footing as though the circuit had been held, but the cause had not been reached on the calendar. As there was no trial, the counsel fee should not have been allowed. (Schenck v. Lathrop y 3 Hill) 449.) As an original question, I should have entertained the same opinion concerning the attorney's fee. But as to that, there has been no important change in the language of the statute. By the act of 1813, the attorney was allowed " a fee on trial." (1 R. L. 16.) By the act of 1830, the allowance was, " for at- tending the trial of a cause." (2 R. S. 613, 18.) The act of 1840 has the same words, with the exception that the word " for" is omitted. (Stat. of 1840, p. 330.) Under the former statutes, it was the settled practice to allow an attorney's fee whenever the cause was noticed for trial and was not reached upon the calendar, or was put over the circuit by the opposite party. And where an allowance was made to the attorney for " argu- ing demurrer, special verdict," &c., the fee was allowed at every term when the cause was noticed for argument, al- though the attorney did not in fact attend. This was done on the ground that the attorney, as such, never tries or argues the cause, and the fee must have been intended as an allowance for preparing the cause for trial or argument. ( Wilson v. White, 2 Wend. 265.) If we follow the settled construction of these statutes, the attorney's fee was properly allowed. The chancery suit is still pending, and it belongs to that court to determine who shall pay the costs of that proceeding. Those costs could not be taxed in this suit. The sum of $35 must be deducted from the bill as taxed. Motion granted. 56 CASES IN THE SUPREME COURT. A-nnvmous. ANONYMOUS. A demurrer to a declaration cannot be treated as a nullity on the mere ground that it is frivolous, or will work delay. In order to justify the plaintiff in disregarding the demurrer and entering the de. fendant's default for not pleading, it must appear that a fraud was attempted upon the rules and practice of the court. Per BR.ONSON, J. M. I. Townsend, for the defendant, moved to set aside a de- fault for not pleading, which was entered after a demurrer to the declaration had been duly served. C. M. Jenkins, for the plaintiff, read affidavits tending to show that the demurrer was frivolous, and put in merely for delay. He cited Bank of Buffalo v. Lowry, (22 Wend. 630 ;) Anon. (id. 619.) By the Court, BRONSON, J. In each of the cases cited, a fraud was attempted upon the rules and practice of the court, and it was not allowed to succeed. So, too, it has long been held, that striking out the similiter and demurring, merely for the purpose of carrying the cause over a circuit, is a fraud upon the rules of the court which will not be tolerated. It was a frivolous demurrer of 'that kind to which Cowen, J. allu- ded in one of the cases cited. Here there has been nothing out of the usual course of proceeding, and we have repeatedly held that a demurrer put in in due time cannot be disregarded on the ground that it is frivolous, or will work delay. A plea is often put in where there is no real defence, and yet if no trick is resorted to for the purpose of effecting delay, the plea cannot be disregarded. The rules and practice of the court allow of some delays without any reference to the question whether there is a real defence or not ; such as time to plead, and the delays resulting from the service of a plea or demur- rer. It is only when there is some fraud or trick, that we ALBANY, DECEMBER, 1842. 57 Patchen t>. Wilson. overlook all the usual forms for the purpose of defeating the contrivance. Motion granted. PATCHEN & PATCHEN, adm'rs, &c. vs. WILSON. An executor or adminstrator who fails in an action necessarily brought in his repre- sentative capacity, is not liable to pay costs except in the cases specified in 2 R. S. 615, $ 17. Goods and chattels, on the death of the owner, vest in his personal representa- tive ; and if they be afterwards tortiously taken or wrongfully converted, he may sue for them in his own name without describing himself as executor or adminis- trator. Otherwise, where the executor or administrator sues on a contract made with the testator or intestate. In such case, unless the contract be a promissory note pay- able to bearer, the action must be prosecuted by the representative as such ; and this, though the time for payment or performance had not arrived when the tes- tator or intestate died. THE plaintiffs brought assumpsit for money had and received by the defendant to the use of the intestate in his life time. The defendant, as an attorney and counsellor, had done busi- ness for the intestate, and, in January, 1838, collected and received upwards of $8000 in money belonging to the intes- tate. The defendant paid over to the intestate all but the sum of 86000, which he retained in his hands ; and after the intes- tate died in 1840, the administrators brought this action to re- cover the money. It appeared on the hearing of the cause be- fore referees, that the intestate agreed the defendant should re- tain the 86000 in his hands without interest, until the litigation in which the intestate was then engaged should be terminated. Two suits were still pending when the intestate died. The defendant claimed a set-off for his services, amounting to up- wards of #13,000, and the referees reported that $453,99 was due the defendant. S. Stevens, for the defendant, now moved for costs against the plaintiffs, on the ground that they did not necessarily sue in VOL. IV. 8 CASES IN THE SUPREME COURT. Patchen v. Wilson. their representative character. (The People v. Judges of Al- bany , 9 Wend. 486, and cases there cited.} J. Edwards, for the plaintiffs. By the Court, BRONSON, J. The cases on which the defen- dant relies were actions of replevin and trover to recover goods and chattels which belonged to the testator at the time of his death, and which were afterwards tortiously taken or wrong- fully converted. As such property vests, on the death of the testator, in the personal representative, the wrong was done to him, and he could sue in his own name without calling himself executor. But it is not so where the executor sues on a con- tract made with the testator. There he must necessarily sue in his representative character ; and this is so, although the time for payment or performance had not arrived when the testator died. In the case of a chattel, the representative may sue in his own name, and then use the letters testamentary as a part of his chain of title. But except upon a note payable to bearer, the representative cannot sue on a contract made with his testator without calling himself executor. Here the ad- ministrators necessarily prosecuted the suit in the right of the intestate, and although they have failed, they are not liable to pay costs. Motion denied. (a) (a) See Reynolds, adm'r &e. v. Collins, ex'r $-c. (3 Hill, 441.) ALBANY, DECEMBER, 1842. 59 Cole v. M'Clellan. COLE v*. M'CLELLAN. A person attending before a court or officer is not entitled to a witness* privilege from arrest, unless he attend as a witness; and this, though he be sworn and examined after the arrest. The privilege of an attorney or counsellor from arrest, while attending court, may be waived by him. Accordingly, where a counsellor, on being served with a capias authorizing him to be held to bail, omitted to claim any exemption, but rather invited the arrest, telling the officer to prepare a bail bond, which he afterwards executed ; held, that this amounted to a waiver of the privilege. A, counsellor is not privileged from arrest while attending before an examiner, master, or a judge out of court. MOTION to be discharged from arrest on the ground of privi- lege. The defendant swore that he resided at New Rochelle, in the county of Westchester, and was a counsellor of the court of chancery. That on the 27th of October last, while attend- ing an examination of witnesses at White Plains in that county before an examiner in chancery, as counsel for the defendant in a chancery suit, he was arrested and held to bail on a capias ad respondendum for an alleged assault and battery upon the plaintiff in this action. He further stated, that on the day fol- lowing he was examined as a witness on the part of the com- plainants in the chancery suit ; but it appeared that he was not attending before the examiner as a witness, and was only called to give some explanations in relation to the testimony of other witnesses. The deputy sheriff who made the arrest did not know that the defendant was attending the examiner as coun- sel, and the defendant did not claim any privilege from arrest. When the deputy made the arrest in the morning, the defen- dant said he should remain in town through the day, and told the deputy to prepare a bail bond, naming the person who would be his bail, and he would sign it. The deputy call- ed again in the evening at the hotel where the defendant stop- ped and presented the bail bond. The defendant then men- tioned that he was attending the examiner as counsel. The 60 CASES IN THE SUPREME COURT. Cole v. M'Clelkn. deputy enquired if any advantage could be taken on that ground, intending, as he swore, to abandon the arrest if it was incorrect. The defendant replied that it would make no dif- ference ; that his name was not spelled right, and he could set aside the proceedings on that ground. The defendant did not object, but appeared desirous to sign the bail bond, and did sign it. The deputy swore that he should not have made the arrest if the defendant had denied his authority to make it. J. L. Tillinghast, for the defendant. W. W. Frothinghamj for the plaintiff. By the Court, BRONSON, J. Although the defendant was examined as a witness the day after the arrest was made, he had not been served with a subpoena, and was not attending the examiner as a witness. He is therefore not entitled to a dis- charge on that ground. (a) If the defendant was privileged from arrest as a counsellor, I see no reason why the privilege could not be waived. In Scott v. Van Jllstine, (9 John. R. 216,) it was said that an attor- ney could not waive his privilege ; but that was where the de- fendant had been sued by bill as an attorney, and he pleaded that he had left the profession and become a farmer, arid thus attempted to defeat the suit by renouncing his privilege. But (a) At common law, it was not necessary for the protection of a witness that he should be in attendance under a subpoena or summons, if, upon application to him, he consented to attend without one ; (Lord Kenyan, Ch. J., in Arding v. Flower, 8 T. R. 534, 536 ; 1 Phil. Ev. 4, 7th Land. ed. ; see also Meekins v. Smith, 1 H. BL 636, 7 ;) and hence, it has been held that a witness attending upon request from another state or country, though not summoned or subpoenaed, is privileged. (Norris v. Beach, 2 John. Rep. 294 ; Walpole v. Alexander, cited 1 7'idd's Pr. 195, 6, 3d Am. from 9th Load ed.) For the statute on this subject, see 2 R. S. 402, 51 et seq. As to the general doctrine, see Cowen $ Hill't Notes to PhiL Ev. 15 to 17, -and the COM* there cited. ALBANY, DECEMBER, 1842. Brittan v. Peabody. it was held that the plaintiff had a right to treat him as an at- torney so long as his name remained on the roll. Here the de- fendant not only omitted to claim any exemption, but he rather invited the arrest ; and after having thus waived his privilege, I think he ought not to be heard in making this complaint. Honesty and fair dealing forbid it. But there was no privilege. The statute has expressly sub- jected all officers of courts to arrest in the same manner as other persons, except during the actual sitting of the court ; and no attorney, counsellor or solicitor is exempt from arrest while the court is sitting, unless he is employed in some cause pending and then to be heard in such court. (2 R. S. 290, 86.) It does not appear that the court of chancery, of which the defendant is an officer, was actually sitting at the time the arrest was made. And besides, the counsel must be employed in some cause to be heard in court. The exemption does not extend to an attendance before an examiner, master, or judge out of court. Motion denied. BRITTAN and another vs. PEABODY and another. Where, in an affidavit to change venue, the statement of merits was thus " thia deponent is advised by his said counsel that said defendants have a good and substantial defence &c., which advice this deponent believes to be true :" Held, insufficient. E. Jl. Doolittle, for the defendants, moved to change the venue on an affidavit by Peabody, which stated, among other things, that " this deponent is advised by said counsel that said defendants have a good and substantial defence to said suit up- on the merits, which advice this deponent believes to be true." E. F. Smith, contra, said the affidavit should have been that the defendants have a defence on the merits, as they are advised 62 CASES IN THE SUPREME COURT. Brittan . Peabody. &c. They have only sworn that they are advised they have a defence, and believe the advice. By the Court, BRONSON, J. The affidavit is clearly insuffi- cient. Motion denied. (a) (a) The following summary of cases on the subject of changing venue for the convenience of parties and witnesses may, it is believed, be of use to the pro. fession ; as there is, perhaps, no other head of practice under which a greater num- ber of questions are constantly arising at the special terms. 1. In what actions.] The venue maybe changed in all transitory actions, pro. viilcd the court shall deem it necessary for the convenience of parties and their witnesses. (2 R. S. 409, 2.) If the action be against a public officer for acts done by him in virtue of his office, the venue will be changed, for this cause alone, to the county in which the fact complained of happened. But where it is question, able whether the action be or be not local, the motion will be determined upon the usual grounds, viz. the convenience of parties and witnesses. (Allen v. Forshay, 12 Wend. 217.) In a subsequent case, the defendant being a private citizen, it was held that he was not entitled to a change of venue on the ground of the action being local ; but must resort to his remedy by demurrer, plea in abate, ment or nonsuit at the trial. (Morgan v. Lyon, 12 Wend. 265 ; and see Right, myer v. Raymond, id. 51.) The distinction which once prevailed between actions ex contractu and ex delicto, in respect to granting and refusing motions of this kind, no longer exists. (Grah. Prac. 561, 2d ed.) 2. What parties may move, and whether all should join in the application.] The plaintiff cannot move to change the venue ; but only the defendant. (Swartwout v. Payne, 16 John. Rep. 149.) The former, however, may change the venue by amending his declaration, as of course, under the 23d general rule ; (Rules of Sup. Court, 1837, No. 23; Wakeman v.Sprague, 7 Cowen, 164; Wolverton v. Wells, 1 Hill, 374 ;) and if he inadvertently allow the proper time for that purpose to elapse, he may obtain leave to amend on motion. (Paine v. Parker, 13 John. Rep. 329.) In general, if there be several defendants, all should unite hi the application for a change of venue. (Sailly v. Hutton, 6 Wend. 508 ; Legg v. Dorsheim, 19 id. 700.) But where a default for not pleading has been entered against one of two de- fendants, the other may move alone. (Chace v. Benham, 12 id. 200.) So, if the action be in form against several, and process be served upon a part only, it is the constant practice to allow the motion to be made by the latter. Formerly, though ALBANY, DECEMBER, 1842. Brittan v. Peabody. the defendant* were the maker and endorsers of a promissory note, sued jointly under the statute, neither could move for a change of venue without joining the others. (Legg v. Dorsheim, 19 Wend. 700.) But by an act passed in May, 1841, ' any party to any promissory note or bill of exchange, who shall be sued jointly with any other party to said bill or note," may " apply to the supreme court for any order or relief which such party applying would be entitled to, if such party had been separately sued in such action, and said court are authorized, in their dis- cretion, to grant to such party applying the like order or relief that by the rules and practice of the court would be granted to such party if sued separately." (Sess. Lout of 1641, p. 272, 1.) 3. In what state of the cause, and within what time.] The defendant should use due diligence in preparing the motion for the earliest practicable day after the service of the declaration. (See Rules of Sup. Court, No. $4.) In general, he ought not to wait until after issue joined ; (Chapin v. De Groff, 4 Coven, 554 ; Lee v. Chap. man, 11 Wend. 186 ;) though, should he do so, the motion may still be granted, provi- ded the plaintiff will not thereby lose a trial nor be subjected to delay (Deletan v. Baldwin, 3 Caine*' Rep. 104 ; Kent v. Dodge, 3 John. Rep. 447 ; Anon. 18 Wend. 514 ; Lee v. Chapman, 11 id. 186.) And even where the consequence will be the loss of a trial or a term, if the circumstances be such that the same result must have followed had notice been given the first opportunity, the delay, though it extend beyond the joining of issue, is not ground for denying the motion. The meaning of the rule on this subject is, not that the mere loss of a trial or a term shall defeat the application, but that the plaintiff shall be subjected to no greater delay than what must have arisen from an earlier movement ( Gar lock v. Dun. kle, 22 Wend. 615.) Where, after a cause had been noticed for trial in the county where the venue was laid by the plaintiff, and the trial put off on the appli- cation of the defendant, he applied to change the venue, the motion was granted on payment of the costs of the circuit and of resisting the motion, and on the defendant's stipulating to take short notice of trial. (Carpenter v. Watrous, 5 Wend. 102.) If the object of the motion be clearly for delay, and it has not been noticed the first opportunity, it will be denied with costs ; as, where the defendant procures an order unnecessarily enlarging the time to plead, and, at the expiration of that time, serves notice of the motion accompanied by a further order for a stay until after decision. (Semble ; see Kilbourne \. Fairchild, 12 Wend. 293 ; Haywood v. Thayer, 10 id. 571.) In Smith v. Prior and others, (9 Wend. 498,) the plaintiff, on receiving notice of motion to change the venue, proposed to change it to the county desired by the defendants, provided they would take short notice of trial, the circuit in that county being about to be held ; to which proposition the defen- dants refused to accede. These facts appearing, and the defendants not pretend- ing that the proposed notice was too short to have enabled them to prepare for trial, the motion was denied ; the court saying, " we cannot but perceive that the sole object of the defendants is delay." This case, however, does not apply so as to give the like advantage from a proposition and refusal to accept abort notice, if tha 64 CASES IN THE SUPREME COURT. Brittan v. Peabody. plaintiff has omitted to declare till too late to notice for trial at the circuit where the venue is laid. (Garlock v. Dunkle, 22 Wend. 615.) The venue may be changed, though the cause be at issue on demurrer, and no issue of fact be contemplated until the demurrer is decided. ( Thurber v. Brown, 2 Hill, 382.) 4. The affidavit on which to move.] The affidavit must, in general, be made by the defendant himself; though, under special circumstances, set forth in the affidavit, it has been held sufficient when made by another e. g. the defen- dant's attorney. (Grah. Prac. 562, 2d ed. ; 1 Dunl. Prac. 413 ; Scott v. Gibbs, 2 John. Cos. 116 ; Colm. $ Cain. Gas. 128, S. C.) The nature of the action is usually stated, but this is unnecessary ; (Baker v. Sleight, 2 Caines? Rep. 46 ; Az&nymous, 1 Hill, 668 ;) nor. is it necessary to mention the county where the cause of action arose ; (Anonymous, 1 H ill, 668 ;) though otherwise, previous to the revised statutes. (Franklin v. Underhill, 2 John. Rep. 374 ; Tillinghast v. King, 6 Cowen, 519 ; 1 Dunl. Prac. 413.) It must appear by the affidavit that the defendant has merits ; and, in this par- ticular, its statements should purport to be made under the advice of counsel, (Swartwout v. Hoage, 16 John. Rep. 3,) unless the defendant be himself a coun- sellor. ( Cromwell v. Van Rensselaer, 3 Cowen, 346.) Where the defendant is not of the degree of counsel, and he is therefore to swear to the advice of counsel, the 61st general rule applies. (Onondaga Co. Bank v. Shepherd, 19 Wend. 10.) This requires that, in addition to what was usually inserted before in similar affi- davits, the party shall " swear that he has fully and fairly stated the case to hia counsel, and shall give the name and residence of such counsel." (Rules Sup. Court, 1837, Ai>. 61.) In regard to the fact of having stated the case &,c., a close adherence to the language of the rule is to be observed, though slight and unimportant variances e. g. " this case," or " his case," instead of " the case" have been overlooked. (Brownell v. Marsh, 22 Wend. 636.) But a substitution of the words " his defence," (id.) or " the/ac Richard Roe. } SIR Take notice that on the affidavit, a copy of which is herewith served, this court will be moved at the next special term thereof, to be held at the capitol in the city of Albany on the [let Tuesday of December next,] for a rule or order changing the venue in this cause from the county of [Erie] to the county of [Montgomery,] or for such other or further rule or order as the court may deem proper to grant. Dated &c. Yours &c. S. BELDINO, Jim. To BENJAMIN H. AUSTIN, Esqr. Def 'ta Att'y. PltfPs Att'y. 8. Grounds of opposition to (he motion.] These, in general, are to be sought for entirely in the number and residence of the witnesses ; (Anonymous, 1 Hill, 663, D ;) and the application will therefore not be defeated by showing that the defendant's witnesses will have to travel a few miles further, in case the venue be changed, than if it were retained. (Hull v. Hull, id. 671.) So, though it appear that the court house in the county where the venue is laid is but a short distance e. g. six miles from the court house of the county to which the defendant seeks to change it, and that the counties adjoin. (Williams v. Fellows, 9 Wend. 451.) But see Mumford v. Cammann, (3 Games' Rep. 139.) The residence of the plain- tiff's witnesses in an adjoining state, to a pumbcr exceeding that sworn to by the defendant, is not ground for retaining the venue ; and this, though their residence be adjacent to the county where the venue is laid, (feet v. Billings, 2 Wend. 282, Canfeld v. Lindley, 4 Cowen, 532,) and though the plaintiff has obtained the promise of his witnesses that they will attend. (Bank of St. Albany v. Knicker- bocker and others, 6 id. 541.) Nor will the venue be retained on the plaintiff's stipulating to pay the expense of the defendant's witnesses ; (Rathbone v. Harmon, 4 Wend. 208 ; but see Worthy v. Gilbert, 4 John. Rep. 492 ;) or changed, on tho defendant's entering into a like stipulation as to the plaintiff's witnesses. (Har. rower v. Beits, 2 Cowerfs Rep. 496.) The motion, however, will be denied, if it appear that the plaintiff has a greater number of witnesses residing in the county where the venue is laid, than that sworn to by the defendant. (Anonymous, \ Hill, 6G8 ; Hull v. Hull, id. 671 ; Sherwood v. Steele, 12 Wend. 294, 5.) So if the number of witnesses sworn to by the respective parties be equal. (Wood v Bishop, 5 Cowen's Rep. 414 ; see Sherwood v. Steele, 12 Wend. 294.) Where, after service of papers for a motion to change the venue from the county of S. to the county of M., together with an order to stay proceedings, the plaintiff amended his declaration under the 23d rule, by changing the venue to the county of A. ; and it appeared on the motion that the plaintiff had a sufficient number of witnesses ALBANY, DECEMBER, 1842. 59 Brittan c. Pcabody. to retain the venue in the latter county, and that the defendant had had time to servo new papers since the amendment, but omitted to do so, the motion was denied. (Wolverton v. Wells, 1 Hill, 374.) If the defendant, after service of his papers, and before the motion be actually made, Buffer a default for not pleading to be entered against him, this will defeat the application, even though he obtained and served an order staying proceedings pursuant to the rule on that subject (Anonymous, Feb. Sp. Term, 1843, Af. S.; and tee Rules of Sup. Court, 1837, No. 94 ; ante, pi. 5.) For other grounds on which the motion may be resisted, see ante, pi. 2, 3, 4, of this note. 9. Affidavit to oppose motion.] The plaintiff's affidavit should be in form and substance similar to that of the defendant, (Onondaga Co. Bank v. Shepherd, 19 Wend. 10, Grah. Pr. 563, 2d ed., 1 Burrilff Pr. 414,) except that it need not show the plaintiff has merits. He must swear unqualifiedly to an equal number of witnesses with those sworn to by the defendant, or a greater number, or the motion will be granted. Accordingly, where, in answer to the defendant's affida- vit of eight witnesses residing in and near the county to which the venue was sought to be changed, the plaintiff swore that he had nine witnesses residing in and near the county where the venue was laid, and that without the testimony of each and every of them he could not safely proceed to trial, " taking into consideration the sustaining of the action, and meeting and resisting the defence which he beluved the defendant intended setting up," the affidavit was held to be insufficient and the motion granted. (Sherwood v. Steele, 12 Wend. 294.) General Form of Affidavit to oppose Motion, SUPREME COURT. Richard Roe r. John Doe. [Erie] county SB : Richard Roe, the above named plain. tiff, being sworn says, that he has fully and fairly stated the case to Benjamin H. Austin, his counsel in this cause, who resides at [the city of Buffalo] in the county of [Erie,] and has fully and fairly disclosed to his said counsel the facts which he expects to prove by each and every of the witnesses hereinafter named ; that [Ben- jamin Rose] and [Hiram Perry] of the town of [Concord,] and [James King] and [Charles Stevens] of the town of [Brandt,] all of whom reside in the said county of [Erie,] are each and every of them material witnesses for this deponent on the trial of this cause, as he is advised by said counsel and verily believes ; and that without the testimony of each and every of said witnesses, this deponent cannot safely proceed to the trial of this cause, as he is also advised by said counsel and verily believes. RICHARD ROE. Subscribed and tworo Jeremiah Wells, S pd. pd. pd. - paid pel. pd. pd. pd. pd. pd. 112 32 50 08 41 1C 43 19 41 37 45 35 26 60 40 24 68 76 CO 44 76 36 ALBANY, JANUARY, 1343. Sharp v. Spcir. On the 23d of Decetober, 1825, a resolution was passed by the trustees as follows : " The assessors having returned an assess- ment for building a well and pump between Clark-street and Love-lane j resolved , that the same is hereby ratified and con- firmed, and that the collector be authorized to collect the same." On the same day a v/arrant issued to the collector to collect the assessments. On the 3d of February, 1826, the trustees resolved, " that the collector be directed to collect the tax of well and pump district No. , for the well in Willow- street ;" and on that day a second warrant issued to the collec- tor to collect the assessments. On the 10th of March, 1826, the trustees resolved " that the assessors be directed to aid the collector in describing the seve- ral pieces of lands, &c. on which the general assessment re- mains unpaid, in order that he may make a return of the same according to law, so that the same may be sold &c." It was proved the affidavit being lost that about the 23d of July, 1827, the collector made the necessary affidavit that several assessments for different improvements remained unpaid, and among others, the assessment in question " Sharp, 19,76." On the same day the trustees passed a resolution for the sale of the lands. The resolution recited that the collector had made affidavit that " the following assessments" remained un- paid. Then followed a long list of assessments for various improvements, and among the number " From Mrs. SJiarpe en property in Willow-street, for making a well and pump in Willow-street, 19,76." It was further recited, that some of the persons assessed, " viz. Patrick Coughran, Charles Mahon, Mrs. SiiarpC) and William Jackson, cannot upon diligent en- quiry be found in said village." It was then resolved that the attorney of the board be directed to advertise for sale pursuant to law, " the several pieces of land whereon the said assess- ments have been laid as aforesaid, excepting &c., and to sell the same for payment of the said assessments with interest, costs and charges." The attorney of the board gave a notice of sale which was pub- CASES IN THE SUPREME COURT. Sharp v. Speir. lished in a newspaper at Brooklyn for three months, as fol- lows : " Whereas there is now due and unpaid from the seve- ral persons hereinafter named the several sums of money here" iir.ifter mentioned for taxes and assessments assessed upon property owned or occupied by them respectively in the vil- lage of Brooklyn for the several objects of benefit or improve- ment herein specified, to wit, [among others] No. 8, for mak- ing a well and pump in Willow-street From Mrs. Sharp, assess- ed en land in Willow -street, near Clark-street, containing on said Willow-street thirty-Jive feet, $19,76. Therefore notice is hereby given to the several owners or occupants," to pay the several amounts, together with interest, costs and charges, on or before the 8th day of November, 1827, and that in default of payment the land would be sold on that day for the lowest term of years for which any person would take the same and pay the charges. On the 8th of November, the lot in question was sold to the defendant for a term of twenty years, and he paid the charges, amounting to $32,86. On the same day the cor- poration executed to the defendant a declaration of the sale, in which the lot was truly described as being in the form of a tri- angle, bounding on Willow-street thirty-eight feet, on Clark- street one hundred and thirteen feet, and on lands owned by Henry Waring. The plaintiffs also owned another lot on the opposite corner, bounded on two sides by Willow and Clark streets, and being within the assessment district. They also owned a third lot near Clark-street, but not fronting on Willow- street. On this state of facts the judge charged the jury that the plaintiffs were entitled to recover, and the defendant excepted. Verdict for the plaintiffs. The defendant now moved for a new trial on a bill of exceptions. J. Greenwood, for the defendant. E. Sandford, for the plaintiffs. ALBANY, JANUARY, 1843. Sharp r. Spcir. By the Court, BEONSON, J. As the plaintiffs made out a perfect title to the property, it is only necessary to examine the claim set up by the defendant under the assessment and sale for making a well and pump in Willow-street. The first en- quiry will be, whether, assuming all the proceedings to have been regular, there was any legal authority for selling the luiul. It has become so common of late to take private prop- erty in one form or another without the consent of the owner, that corporations are not always very careful to look at their charters ; or if they are examined, the powers conferred are construed very liberally. But the right to take private prop- erty in any form without the consent of the owner, is a high prerogative of sovereignty, which no individual or corporation can exercise without an express grant. The power may be delegated, but the delegation must plainly appear. It cannot be made out by doubtful inferences from powers relating to other subjects. Nothing short of express words, or necessary implication, will answer the purpose. (a) The village of Brooklyn was incorporated in 1816, the char- ter was amended in 1824, and these laws were, with some modifications, reduced into one act in 1827. (Stat. o/"1816, p. 90; 1824, p. 224; 1827, p. 127.) The act of 1816 pro- vided for levying taxes upon the freeholders and inhabitants of the whole village, but not for making assessments within any more limited district. The act of 1824 authorized the trustees to order and direct the pitching, paving, altering, amending and cleansing of streets within the village, and to cause the expense of conforming to such regulations to be as- sessed among the owners and occupants of the houses and lots intended to be benefitted thereby ; and the trustees were au- thbrized, by warrant under their hands and seals, to levy the assessment by distress and sale of the goods and chattels of (a) See Doe, ex dem. Ltxnon, v. Chunn, (1 Blackf. Rep. 336 ;) as to which, how. ever, qttcre. VOL. IV. 11 82 CASES IN THE SUPREME COURT. Sharp v. Speir. the owner or occupant who should make default in payment. ( 3.) By the eighth section of that act, the trustees were au- thorized to divide the village into well and pump districts, to provide wells and pumps, and to assess and collect the ex- penses of those works in the same manner as was provided in relation to street assessments by the third section of the act. Thus far it is quite clear that there is no power to sell lands for making wells and pumps. The assessments are to be col- lected by distress and sale of the goods and chattels of the persons assessed. But it is said that the power to sell lands for these assess- ments may be found in the seventh section of the act, which provides, " that whenever any tax of any description on lands or tenements in the said village shall remain unpaid," and the collector shall make affidavit " that the owner or owners of the premises on which the same is imposed" cannot be found, or that he has not sufficient personal estate in the village whereon the tax can be levied, the trustees may take order for adver- tising in a newspaper for the space of three months, " thereby requiring the owners of such lands and tenements respectively" to pay the tax, and that in case of default, "such lands and tenements" will be sold ; " and if, notwithstanding such no- tice," the tax shall not be paid, " then it shall and may be law- ful for the said trustees to cause such lands and tenements to be sold at auction for a term of years." Now, the first remark upon this section is, that it only authorizes the sale of lands for the payment of a tax ; and although it extends to a tax" of any description," still it includes nothing but a tax of some kind. Our laws have made a plain distinction between taxes, which are burdens or charges imposed upon persons or property to raise money for public purposes, and assessments for city and village improvements, which are not regarded as burdens, but as an equivalent or compensation for the enhanced value which the property of the person assessed has derived from the im- provement. This distinction had been made in several statutes long before Brooklyn was incorporated, and was fully exem- ALBANY, JANUARY, 1843. Sharp c. Speir. plified in the Matter of the Mayor of New-York , (11 John. R. 77.) There, several churches in the city of New-York had been assessed for the supposed benefit which they would derive from the enlarging of Nassau-street, and they denied the legality of the assessment, because it had been expressly enacted that no church or place of public worship " shall be taxed by any law of this state." But the objection was overruled, and the exemption claimed by the churches denied, on the ground that the assessment could not properly be regarded as a tax. This case apparently goes the whole length of deciding the one now before us. The authority is to sell for a tax, and the defendant shows nothing but an assessment for a village im- provement. In Bleecker v. Ballou, (3 Wend. 263,) the ques- tion was upon an assessment for pitching and paving a street, and Savage, Ch. J. said, " there is no doubt that the assessment in question was not a tax, that being a sum imposed, as is suppo- sed, for some public object."(6) I may remark here, that the charter provides in terms for laying taxes for various purposes, and there is, therefore, no necessary implication that assessments were intended to be in- cluded in the word " tax," which is the only word in the seventh section from which the power can be inferred. A corporation must show a grant, either in terms or by ne- cessary implication, for all the powers which it attempts to ex- ercise ; and especially must this be done, when it claims the right, by taxing or otherwise, to divest individuals of their property without their consent. In Beaty v. Knowler, (4 Pe- ters, 152,) which was the case of a corporation sale of lands for taxes, Mr. Justice McLean remarked, " that a corporation is strictly limited to the exercise of those powers which are specially conferred upon it. The exercise of the corporate franchise, being restrictive of individual rights, cannot be ex- (6) Sec farther, u to the meaning of the word " tax," TTu Overteert $c. of Ami. nto T. Overseen . Ogden. GOODYEAR vs. OGDEN & PEAHL. A written instrument acknowledging the receipt of a quantity of wheat " in store," imports a bailment and not a sale. Such instrument is in the nature of a contract, and therefore not open to contra. diction in the sense of the rule applicable to receipts proper ; though its import may be explained by parol evidence of the usage among dealers in wheat. Per COWEN, J. Where parol evidence is given of a usage to treat such instruments as importing a sale, it is for the jury to say whether the usage be so universal and well known as to raise the presumption that it entered into and formed a part of the con- tract in question. A new trial will not be granted on the sole ground of the verdict being against the weight of evidence, except upon payment of costs. The case of Green v. Burke, (23 Wend. 490,) commented on, and the reporter's abstract of it corrected. TROVER for a quantity of wheat, tried at the Cayuga circuit in March, 1842, before MOSELEY, C. Judge. The plaintiff gave in evidence several receipts signed by the defendants as partners, all of which were in the following form, except as to dates and amounts : " Genoa, Sept. 22d, 1841. Reed, of Ives Goodyear 40 r bushels wheat. In store. D. OGDEN & Co." It appeared that the defendants were engaged in the business of buying and shipping wheat to the eastern market ; and the question was, whether the, wheat in controversy was delivered by way of bailment or sale. The judge held the receipt not conclusive that the delivery was by way of bailment ; where- upon the parties went into evidence to explain, and even con- tradict its meaning. The explanatory evidence was, that a receipt in such a form customarily meant a sale. The contradictory evidence was, the language and conduct of the plaintiff implying that a sale was intended. Among other things it appeared that the plaintiff aided in put- ting the wheat into a common bin where there were seve- ral thousands of bushels of wheat belonging to others. The ALBANY, JANUARY, 1S43. 105 Goodyear t>. Ogdcn. judge left the explanatory and contradictory facts to the jury, who found in favor of the plaintiff. The defendants now moved for a new trial on a fase. L. Walker, for the defendants. David Wright, for the plaintiff, By the Court, COWEN, J. The receipt seems plainly to im- port a bailment. It was a contract, or in the nature of a con- tract ; and therefore not open to contradiction in the sense of the rule applicable to receipts proper. In this view, the con- tradictory evidence was not admissible. (o) The import of the terms was controllable by the usage among wheat dealers such as the defendants were if that usage was so universal and well known that the jury were bound to consider it parcel of the contract. But of this they were the judges. Supposing the words to be ambiguous, and so open to ex- planation by circumstances, these were not, I think, of that clear and decisive character which call on us to disturb the verdict. It is singular, and scarcely compatible with a bail- ment, that the plaintiff should have mixed the wheat with thousands of bushels belonging to others or to the defendants. But the evidence was not entirely explicit as to the mixture. The wheat was put in a common bin ; but that did not neces- sarily destroy the means of identifying it. The words common bin are themselves ambiguous. It might have been so arrang- ed, although common, that the wheat of each customer could be distinguished. The question was one for the jury, as was also the construction to be placed upon the plaintiff's language. The whole turns on the weight of evidence, even in the most favorable view for the defendants. When wheat receivers (a) See Cowen $ Hill't Note* to Phil. Ev. p. 216, 217, 1439, and the eatet tlun cited. VOL. IV. 14 106 CASES IN THE SUPREME COURT. Goodyear v. Ogden. mean a sale, they should express themselves more clearly than was done in this case. They should make out bills of sale, or sale notes. It is, at best, dealing very freely with a writ- ten contract to receive and act at all upon parol evidence tending to show that a receipt of wheat in store means a sale. The defendants claim a new trial solely on the weight of evidence. A contract worded as this was, weighs, in itself, very heavily against them ; and to say it is clearly overcome, is more than we can do on the evidence in this case. Having disposed of the principal case, a word is due to the profession in respect to a case cited by the defendants' counsel, viz. Green v. Burke, (23 Wend. 490.) This has of late been often cited as showing that, though a verdict be set aside as against the weight of evidence alone, the costs are to abide the event. The rule is otherwise, and nothing is said upon it in the case cited, one way or the other. Nor is there any color for the suggestion in the marginal note. A verdict, wrong inform, was received at the circuit, upon which such an entry on the record as was due to the justice of the case could not be made. On this error , as well as on the weight of evidence, a new trial was granted. The only thing said of costs, is in the direction for entering the rule at the end of the case, viz. " costs to abide the event." Where the verdict is set aside purely as against the weight of evidence, unmixed with other reasons, the rule is as laid down by the chief justice in The Bank of Utica v. Ives, (17 Wend. 501.) It must be on payment of costs. (b) Burke v. Green involved another point, on which I stated at the out- set that a new trial must be granted and the point is also stated in the head note of the reporter. New trial denied. (c) (b) See Graham on New Trialt, 603, and the catet there cited; Jackson v. Thurtton, (3 Cowen, 342.) (c) See Dawson v. Kittle, (pott.f. 107.) ALBANY, JANUARY, 1843. JQ7 Dtwwn . Kittle. DAWSON vs. KITTLE. \ A memorandum acknowledging the receipt of a quantity of grain " on freight," imports a bailment and not a sale. But the memorandum may be shown to mean a sale by evidence of usage among dealers in giain. Per NELSON, Ch. J. Such evidence, however, must be BO full and explicit as to leave no doubt of the existence, extent and meaning of the usage, and that the parties contracted in reference to it. Per NELSON, Ch. J. In general, where evidence of usage is given to control the construction of a writ- ton instrument, the jury are to determine its effect ASSUMPSIT, tried at the Rensselaer circuit, in March, 1840, before CUSHMAN, C. Judge. The declaration contained the common counts. On the trial, the case was this : In 1838 and 1839, the plaintiff delivered a quantity of rye and oats to Schermerhorn & Willsey at different times, and took from them several receipts all of which, except as to dates and amounts, were as follows : " Rec'd, Schodack, Oct. 22d, 1838, from Joel Dawson, twenty-eight bushels and twenty pounds of rye on freight. (Signed) Schermerhorn & Willsey." S. & W. were purchasers and freighters of grain, and, as such, had been en- gaged in business at Schodack Landing for several years. The grain in question was put into a common bin and mixed with that received from the other customers of S. & W. The defen- dant proved that S. & W. assigned all their property to him in trust for creditors, and claimed that the grain belonged to them at the time of the assignment. The defendant took possession of the grain in virtue of the assignment, and, a few days after- wards, the plaintiff ordered it to be sent to market. The princi- pal question on the trial was, whether the receipts given to the plaintiff were to be deemed evidence of a sale to S. & W. or of a mere bailment ; and, upon this point, several witnesses were called by the defendant to show the usage among dealers in grain. The general nature and effect of this evidence suffi- ciently appears in the opinion of the court. The jury render- 108 CASES IN THE SUPREME COURT. Dawson v. Kittle. ed a verdict for the plaintiff, and the defendant now moved for a new trial on a case. S. Stevens, for the defendant. JV. Hill, Jr. for the plaintiff. By the Court) NELSON, Ch. J. The defendant is the assignee of Schermerhorn & Willsey, who were in the habit of receiv- ing grain in store to be shipped to the New-York market. As such shippers, they received the plaintiff's grain, which was deposited with that of other customers in a common bin ; and it is claimed by the defendant that it passed to him under the assignment. The material question is, whether the title to the grain became vested in Schermerhorn & Willsey previous to the assignment, or whether they received and held it under a mere contract of bailment. It is quite clear that the receipts given for the grain do not in terms or of necessity import a sale, but rather the contrary. They acknowledge the delivery to have been " on freight" and nothing more. But it is argued that there was full proof of usage in the particular trade, which went to explain the memo- randum and establish an absolute sale of the grain. I do not deny that the receipts were open to explanation by this species of evidence ; (2 Stark. Ev. 258, 9, Am. ed. '37 ; Withnell v. Gartham, 6 T. R. 398; Bushforth v. Hadfield, 6 East, 519; Cooper v. Kane, 19 Wend. 386 ;) but it ought to be full and explicit so clear as to leave no doubt that the parties con- tracted in reference to the usage. The contracts in this case, so far as they have been reduced to writing, import a bail- ment ; and when it is sought to make them mean somethino / <_/ Q more than appears upon their face, by showing the general course and understanding of the trade, there should be no doubt left as to the existence, extent and meaning of the usage. Imperfect ss a memorandum may be, if enough appear upon its face to make out a contract, its terms must prevail, un- ALBANY, JANUARY, 1843. Gale v. Mead. less modified by clear proof that these have a particular mean- ing attached to them by the usage of trade a usage known to the party at the time of contracting, or which he is pre- sumed to have known and assented to. The testimony in this case is not only loose in respect to the existence of the usage at the particular place where the dealing occurred, but it is left doubtful whether, even if it existed there at all, it af- forded any evidence of a sale of the grain until the plain- tiff ordered it to be sent to market. Such is the import of the usage as testified by some of the witnesses, and the direction to send to market does not appear to have been given in this case till after the assignment to the defendant. But this part of the case need not be further discussed, as the questions of fact arising out of the evidence of usage were submitted to the jury, to whom they properly belonged,(a) and no question of law is raised upon the charge of the judge. New trial denied. (Z>) (a) Sec Cowen $ Hilta Notes to Phil. Ev. 1408 to 1420. (6) See Goodyear v. Ogden and another, (ante, p. 104.) GALE vs. MEAD and others. The unqualified repeal of a repealing statute revives the original enactment Per B RON-SON, J. Where a resolution of the taxable inhabitants of a school district to lay a tax for building a school house, is repealed at a subsequent meeting, and afterward tho repealing resolution is itself repealed, this revives the original resolution. Per BRCNSON. J. In such case, however, the original resolution being rendered operative only from the time of the vote which revived it, a tax list prepared under it prior to the second meeting cannot be used for the purpose of collecting the tax ; though otherwise, srmble, of a warrant prepared at the same time, if renewed after the third meeting so as to be equivalent to new process. TROVER for a horse, tried at the Monroe circuit, in April, 1842, before DAYTON, C. Judge. The three defendants were HO CASES IN THE SUPREME COURT. Gale r. Ulead. trustees of school district No. 3 in Clarkson. At the annual meeting of the taxable inhabitants of the district on the 7th of October, 1839, a tax of $300 was voted to build a new school house. On the 1st of November following, the trustees pre- pared the proper assessment or tax list, in which the plaintiff's tax was fixed at $60,19 ; and on the 21st day of that month the trustees made out their warrant in the usual form for col- lecting the tax. At a district meeting, held on the 25th day of the same month, a vote was passed repealing the vote for a tax which had been passed on the 7th of October. On the 5th of December following another district meeting was held, at which a vote was passed repealing the vote of the 25th of No- vember which had repealed the vote for a tax. And thereupon the trustees, on the 23d day of December, renewed the war- rant which had previously been made out, and delivered it with the tax list annexed to the collector, who, by virtue of the warrant, took and sold the plaintiff's horse to satisfy his tax ; and for that taking this action was brought. The judge deci- ded that, although he was of opinion the vote of the 5th of December repealing the vote of the 25th of November re- stored the original vote to raise $300 passed at the annual meeting, yet that it was so restored only as a tax of that amount voted for the first time on the 5th of December, and that all the proceedings had under the vote at the annual meeting were void. That the trustees were bound after the vote of the 5th of December to go on and make a new assessment of the tax, and proceed in all respects as though that was the first vote which had been passed to raise money ; and not having dcr.e so, the warrant was void and formed no justification to the de- fendants. The defendants excepted, and the jury gave their verdict for the plaintiff. The defendants now moved for a new trial on a bill of exceptions. H. R. Selden, for the defendants. A. Gardiner^ for the plaintiff. ALBANY, JANUARY, 1843. Gale v. Mead. By the Court, BRONSON, J. The taxable inhabitants of a school district, when duly assembled, are invested with several legislative powers in relation to the affairs of the district j and, among others, they have the power to lay a tax for building a new school house. They are also authorized " to repeal, alter and modify their proceedings from time to time as occasion may require." (1 R. S. 478, 61.) As nothing beyond pre- paring a warrant and tax list had been done under the resolu- tion of the 7th of October, the district was at liberty to rescind the vote to lay a tax, as they did at the meeting of the 25th of November. But on the 5th of December, the repealing vote was itself repealed. This revived or renewed the original vote to lay a tax. The unqualified repeal of a repealing statute re- vives the original enactment. (Case of the Bishops, 12 Co. 7 j 2 Inst. 686 ; Wheeler v. Roberts, 7 Cowen, 536 j Common- wealth v. Churchill, 2 Met. 118.) I see no reason why that rule should not apply here, as well as to legislation on a larger scale. There was, then, the necessary vote to lay a tax at the time the warrant was delivered to the collector on the 23d of December. But there is still a difficulty in sustaining the defence. Al- though the vote to lay a tax was revived or renewed on the 5th of December, I do not see how the vote of that day could have any retroactive effect. The warrant and tax list which had previously been made out, fell to the ground when the ori- ginal vote was rescinded on the 25th of November, and the subsequent renewal of the vote could not resuscitate the for- mer proceedings under it. The trustees should have begun de novo after the 5th of December. But instead of doing so, they subjoined a renewal to the warrant, and delivered it with the tax list to the collector. As the warrant had never been issued before, there could not strictly be a renewal of it, within the meaning of the stat- ute. (1 R. S. 484, ^ 89.) Still, the renewal under the hands and seals of the trustees on the 23d of December may perhaps be regarded as making it new process of that date. (Smith v. 112 CASES IN THE SUPREME COURT. Acker v. Witherell. Randall, 3 Hill, 495.) And, in this view of the case, the war- rant may be well enough. But I see no way in which the dif- ficulty in relation to the tax list can be got over. The statute provides, that every district tax shall be assessed and the tax list thereof be made out by the trustees within one month after the tax is voted. (1 R. S. 483, 82.) This tax was assessed and the tax list made out before the tax was voted. The list was completed on the first of November, more than a month before the vote of the 5th of December. But the length of time is not very material. The assessment and tax list should have followed the vote. There may have been great changes in the taxable persons and property in the district between the time when the list was made, and the time when it should have been prepared. But whether so or not, this entire departure from the statute cannot be supported. New trial denied. ACKER, sheriff &c., vs. WITHERELL and others. The trustees of the estate of an absconding, concealed or non-resident debtor may maintain an action against the sheriff for suffering the goods attached by him to be lost through his negligence. Where, in such action, the declaration commenced by describing the plaintiffs as " trustees for all creditors of the estate, real and personal of M., late of &c., an absconding or concealed debtor," and then set forth the proceedings against M. down to and including the seizure of the property by the sheriff in virtue of the warrant, but contained no direct averment that the plaintiffs had been appointed trustees in consequence of such proceedings; held, nevertheless, that the declaration was sufficient in this respect on error, no special demurrer having been interposed. Goods of a mere under-tenant which have been removed from the demised premi- ses before any rent became due, are not liable to be distrained for subsequently accruing rent. Otherwise, if the goods belong to one who occupied as assignee of the original tenant. The fact of demised premises being found in the possession of one not named in the lease, raises the presumption that he is in as assignee of the lessee and not ALBANY, JANUARY, 1843. 1 13 Acker t>. Witherell. as under-tenant ; especially if it appear that he has paid rent to the original landlord. Though goods be seized by the sheriff under an attachment against an abscond. ing debtor, this detracts nothing from the landlord's right to distrain them for rent. ERROR to the superior court of the city of New-York. The commencement of the declaration in the court below was as follows : " City and county of New-York, ss. Edward With- erell, Casper Writter and William A. Cromwell, of the said city, trustees for all creditors of the estate real and personal of John M'Lane, late of the said city, an absconding or con- cealed debtor, plaintiffs in this suit, by &c., complain," &c. The fifth count was in these words : " For that whereas, &c. on the 17th day of April, 1839, Allen Gorham made applica- tion in writing to the Hon. Thomas J. Oakley, one, &c., stating that he [Gorham] was an inhabitant of the state and city of New- York, and was a creditor of the said M'Lane, late of the city of New- York, in Ihe sum of $100 and upwards, and that the said M'Lane was an inhabitant of this state, residing in the city of New-York, and had secretly absconded from and left this state with the intent to defraud his creditors or to avoid the service of civil process ; and prayed," &c. [detailing the proceedings pursuant to the statute, viz. that a warrant was issued and deliv- ered to the defendant, sheriff of the said city and county, and that by virtue thereof he attached certain goods belonging to M'Lane.] The declaration then averred that the plaintiffs de- manded the goods of the defendant, who had negligently suf- fered them to be taken out of his possession whereby they be- came wholly lost. There was no allegation, except as above, that the plaintiffs had been appointed trustees. The defen- dant pleaded the general issue, and a trial was had on the fifth count only, the others having been abandoned. The facts of the case, as they appeared on the trial in the court below, were as follows : The goods in question were removed by M'Lane, on the 15th of April, 1839, from store No. 121 Fulton-street, New- York, to store No. 110, on the same street. The former store had been occupied by M'Lane from October, 1838, down VOL. IV. 15 114 CASES IN THE SUPREME COURT. Acker . Witherell. to the time the goods were removed. On the 17th of April, two days after the removal, the defendant seized the goods in virtue of the warrant against M'Lane and caused them to he taken from store No. 110, to a room in Courtlandt-street, where they remained till in May following, when they were distrain- ed and sold in behalf of one Renscher for a quarter's rent of store No- 121, Fulton-steet. The rent fell due the 1st of May, on a lease given by Renscher to one James. The rent of the previous quarter ending on the 1st of February, had been paid to Renscher by M'Lane. The court below charged the jury that, as the goods had been removed from store No. 121, and were in the custody of the defendant in virtue of the warrant against M'Lane, they could not be followed and distrained by Renscher ; and therefore the distress constituted no defence to the action. The defendant below excepted to the charge, and the jury rendered a verdict in favor of the plaintiffs. After judgment, the defendant sued out a writ of errop. S. Stevens, for the plaintiff in error, said it was doubtful whether trustees under the statute relating to absconding debtors could in any case maintain an action of this character. (1 R. S. 798, ^ 7, 2d ed.) But if it were otherwise, still the judgment of the court below must be reversed, for the reason that there is no sufficient averment in the declaration of the plaintiffs having been appointed trustees. Again : on the proof given at the trial, the court below had no right to direct a ver- dict for the plaintiffs. The defendant showed that the goods were taken from his custody under a lawful distress ; and thus his alleged default was excused. True, had M'Lane been a mere under-tenant, the goods in question would not have been liable to seizure in virtue of the distress warrant. The fact, however, of his having occupied the premises, and paid rent to the landlord, raised the presumption that he was in as assignee of the original tenant j ( Williams v. Woodward^ 2 Wend. 487 ;) and if so, the goods. were rightfully distrained. (Coles v, Mar- , 2 Hi//, 447.) ALBANY, JANUARY, 1848. Acker r. Wilherell. JV". HM, Jr. contra. By the Court , COWEN, J. Bringing the introductory clause in the declaration and the fifth count into immediate juxta- position, we then have the allegation that the plaintiffs below were trustees of the creditors of John M'Lane, who is shown to have been regularly proceeded against as an absconding debtor. There is, to be sure, no direct averment that their ap- pointment was in consequence of the proceeding mentioned. This, however, is plainly inferable from the whole matter, which is sufficient on writ of error, no special demurrer having been interposed. Scarcely a question was made on the argument that, being properly connected with the proceeding, the defendants in er- ror might sustain an action against the sheriff for his alleged default. (1 R. S. 798, 7, 2d ed.) It is not insisted that the seizure by the sheriff detracted any thing from Renscher's right to distrain. (1 R. S. 796, 2d e.d. 28.) This being so, the proceeding is disembarrassed of the objection that the goods were in the custody of the law. They are to be looked upon as goods removed by M'Lane from the demised premises, and still held by him. No question is made that they were distrained within the thirty days allowed by the general statute. (2 R. S. 413, 2d ed. 16, 17.) Nor was any such question specifically raised in the court below. Coming to the general statute, I have not been able to dis- cern any ground for the peremptory direction given to the jury by the court below, that there was no right of distress. If M'Lane had been a mere under-tenant of James, the goods be- longing to M'Lane and being removed before a right to dis- train accrued to the landlord, they would, indeed, have been exempt from distress, within the late case of Coles v. Mar- quand, (2 Hill, 447.) Otherwise, if he was assignee, according to the same case. There was nothing in the proof directly de- fining his relation j and it should at least, I think, have been left with the jury to say whether he was one or the other. 116 CASES IN THE SUPREME COURT. Sharp r. Ingraham. The presumption of law, where a man is shown to be in pos- session of leasehold premises, without any thing more, I take to be, that he is in as an assignee of the original tenant. (2 Phil. Ev. 150, 151, JV. Y. ed. of 1839; Williams v. Wood- ward, 2 Wend. 487, 492.) Here too is proof beyond mere possession. M'Lane paid rent to Renscher. (Id. ibid.) The judgment must, I am of opinion, be reversed, and a venire de novo go from the court below. Ordered accordingly. SHARP and others vs. INGRAHAM. In ejectment, if possession by the defendant at the time of the commencement of the suit be shown, the presumption will be, in the absence of evidence to the contrary, that he entered and held in hostility to the plaintiff, and not in subor- dination to his right. Accordingly, in order to put the plaintiff to proof of an ouster, hi such case, the defendant must show affirmatively that either he, or one under whom he claims, is a joint-tenant or tenant in common with the plaintiff. The rule is the same, though the plaintiff claim only an undivided interest in the premises in question. Where the plaintiff showed title to an undivided interest in a lot of land, and it ap- peared that the defendant entered into possession under one C., who for several years had exercised acts of ownership over the lot by leasing the same, but no evidence was given of any privity of estate or title between C. and the plaintiff; held, that the latter was entitled to recover, without proving an ouster. EJECTMENT, tried at the Greene circuit, in 1840, before CUSHMAN, C. Judge. The plaintiffs showed title to an undi- vided sixth part of lot No. 43, in great lot No. 20, of the Har- denberg patent, and proved that the defendant occupied and claimed possession of the whole of lot No. 5 one of the sub-- divisions of lot No. 43. It appeared, however, that tiie defen- dant, held under a lease executed by George Clark to Jacob M'Gennis, dated January 23d, 1826, purporting 1o demise four ALBANY, JANUARY, 1843. H7 Sharp t. Intrraham. equal undivided fifth parts of said lot No. 5, and that Clark had possessed lot No. 43, by his tenants, for many years. But whether Clark claimed title to the whole of Jot No. 43, or on- ly to an undivided portion ; and, if the latter, whether he claimed as tenant in common with the plaintiffs, or otherwise, did not appear. The plaintiffs insisted that they were entitled to recover one sixth part of lot No. 5 ; but the circuit judge held otherwise, and directed a nonsuit, on the ground that the defendant's possession was, prima facie, that of a tenant in common with the plaintiffs, and no ouster or adverse holding had been proved. The plaintiffs excepted, and now moved for a new trial on a bill of exceptions. L. Elmendorf, for the plaintiffs. Jl. Taber, for the defendant. By the Court, NELSON:, Ch. J. Under the former practice in ejectment, judgment passed against the casual ejector (John Stiles) unless the tenant came in and entered into the consent rule, by which he was obliged to confess lease, entry and ous- ter. If he claimed only an undivided interest in the premises as coparcener, joint-tenant, or tenant in common, he was permitted, en showing that fact to the court, and that there had been no ouster, to enter into a special consent rule admitting the les- sor's title as to the undivided part ; and was excused from con- fessing ouster to the extent of such conceded interest, leaving that question to be litigated on the trial. (Langcndyck v. Burhans, 11 John. R. 4G2 ; Jackson v. Lyons, 18 id. 398; Wigfall v. Brydon, 3 Burr. 1897 ; Doe v. Roe. 2 Taunt. 397.) The revised statutes have abolished the consent rule, and it is now provided that it shall not be necessary on the trial for the defendant to confess, nor for the plaintiff to prove lease, entry and ouster, except where the action is brought by one or more tenants in common or joint-tenants ag inst their co-tenants ; in which case the plaintiff, in addition to other 1 18 CASES IN THE SUPREME COURT. Sharp t>. Ingraham. necessary proof, is required to show an actual ouster, or som. other act amounting to a total denial of his right as such co tenant. (2 R. S. 306, 26, 27 ; Siglar v. Van Riper, K Wend. 414.) It is clear, therefore, both from the former practice in eject- ment and from the language of the revised statutes, that before the plaintiff can now be called on to prove an ouster, the de- fendant must make out on the trial that he is a co-tenant with him of the premises. It is only when that relation is shown to exist, that proof of ouster becomes necessary. In the ab- sence of such relation, it is enough if the plaintiff establish his title. Nor does the fact of the plaintiff seeking to recover an undivided interest only, devolve upon him the necessity of this proof ; for it by no means follows that the defendant owns the other portion or any part of it as tenant in common. The defendant being in the possession and occupation of the whole, the presumption, in the absence of any other proof to the con- trary is, that he holds in hostility to the plaintiff that he claims title to and possession of every part and parcel of the premises. The burden, therefore, lies upon him to make out the fact of a tenancy in common or joint-tenancy. This being done, the presumption of law arises that he holds in subordination to the right of his co-tenant, and that his possession is the posses- sion of both. Hence, in such case, the propriety and necessi- ty of some evidence that he has denied tl^e plaintiff's right, be- fore he shall be subjected to the expenses of a suit. (Fishar v. Prosser, Cowp. 218, 219 ; Butler v. Phelps, 17 Wend. 647 ; Gillet v. Stanley, 1 Hill, 121.) The difficulty in this case is, that there is no proof whatever that Clark's title, or the posses- sion under it, has any connexion with the title under which the plaintiffs claim. It does not even appear but that it embraced the whole interest and estate in the tract of which the lot in question is a part, or that it was not derived from a source in hostility to that of the plaintiffs Before the defendant can claim any thing in the way of imposing the onus of proof of on ouster upon his adversary, by connecting himself with his ALBANY, JANUARY, 1834. \]g Rapclye r. Prince. title, he must show that Clark held the lot as co-tenant with the plaintiffs, or with those under whom they derived title. We have seen that this was essential under the old practice, before the defendant was excused from confessing the ouster by entering into a special consent rule ; and then he was bound \o admit the title and put himself solely upon the question of ouster, or not. Now that the plaintiff is bound to make proof of title in the first instance, and is still obliged to meet the question of ouster on the trial, we ought, at least, to hold the defendant to as strict proof of the existence of the co-tenancy as he was required to give before he was permitted to excuse himself from confessing the ouster. I am of opinion, there- fore, that a new trial should be granted, costs to abide the event. New trial granted. RAPELYE & PURDY vs. PRINCE & PRINCE. If person covenant for t : ie results or consequences of a suit between others, the decree or judgment in such suit will be evidence against him, though he was not a party. Accordingly, where one assigned a mortgage, covenanting that it should produce and yield a given sum over and aoove the costs of foreclosing, and that if it did not, he would pay the deficiency : held, that the assignee having subsequently foreclosed the mortgage in chancery and sold under the decree, without making the assignor a party, these proceedings wen. evidence against the latter, in an action on the covenant, to show the amount of the deficiency. Held further, that the assignor was estopped by the decree from questioning the amount found due upon the mortgage, no fraud being alleged. The case of Douglass v. Hoicland, (24 Wend. 35,) commented on and explained. If a witness who has been duly subpoenaed, either neglect to attend, or leave court after the trial has commenced, it is in the discretion of the judge whether he will suspend the trial until the witness can bo brought in. The decision of a judge upon a matter resting in his discretion cannot be reviewed on bill of exceptions. Where a party excepts to a decision of this character, the judge shonld strike th exception from (he bill before affixing his seal to it Per BRONSON, J. 120 CASES 117 THE SUPREME COURT. Rapelye v. Prince. Ths only mode of procuring the attendance of a plaintiff for the purpose of ex. amiaing him pursuant to the usury law of 1837, (Sess. L. of 37, p. 487, 2,) is by serving him with a subpoena in due season, and paying or tendering him the fees of a witness. He is not bound to regard a mere notice to attend. After judgment has been perfected on a verdict rendered at the circuit, it is too late to move for a new trial on the mere ground of surprise. I.i general, a motion for a new trial on the ground of surprise will be heard only at the special term ; and this, though a case or bill of exceptions have been mnde. If such motion be made where there is also a case or bill of exceptions, the court may, in its discretion, suspend a decision until the enumerated motion shall have been argued. Per BRONSON, J. Where the intention is to move on the ground of newly discovered evidence, the ground of surprise may also be added, and the whole will then bo, heard to gtther at the general term. Per BRONSON, J. COVENANT, tried at the New-York circuit, in April, 1842, be- fore KENT, C. Judge. The action was on a sealed agreement by the defendants, dated November 4th, 1837. The agree- ment recited that the defendant, John D. Prince, had that day assigned to the plaintiffs a mortgage bearing date December 1st, 1834, executed by Hunn ..C. Beach to George Martense, together with the bond accompanying the same ; and that the plaintiffs had purchased the bond and mortgage at the request of both of the defendants. The defendants then covenanted with the plaintiffs, among other things, that the bond and mort- gage " shall, with reasonable care and diligence, produce and yield to the said " plaintiffs " the said principal sum of two thousand five hundred dollars with interest thereon, at the rate of seven per centum per annum from the first day of June last past, over and above the costs and expenses of suing upon or foreclosing the said indenture of mortgage ; and that in the event of there happening to be any deficiency, we will pay the amount thereof" to the plaintiffs. The declaration stated at large a foreclosure of the mortgage in chancery, and that there was a deficiency, which the defendants had not paid. The de- fendants pleaded non estfactum^ and gave notice, in several forms, of the defence of usury. To this was subjoined an af- ALBANY, JANUARY, 1843. Rapelye o. Prince. fidavit by the defendant, John D. Prince, of the truth of the notice. On the trial, the plain tiffs proved and read in evidence the covenant declared on. They also gave in evidence the proceed- ings in chancery, from which it appeared that the mortgage of Beach had been foreclosed in that court, and the property sold under the final decree for the sura of $1500, and purchased by the defendant John D. Prince. It further appeared from those proceedings that the plaintiffs had, prior to the decree, paid $130,96 to redeem the mortgaged premises from a corpo- ration sale to satisfy a street assessment. This sum was added to the mortgage debt, and the decree directed a sale to pay the whole. After deducting costs and the price the land sold for, there was a deficiency in the necessary amount to pay the plain- tiffs, which, with interest, amounted to $1673,43. When the plaintiffs' proofs were through, the defendants called on the plaintiffs to testify, and the plaintiffs not answer- ing or appearing, the defendants read a notice requiring the plaintiffs to attend the circuit at which the cause was to be tried, to be examined as witnesses on the part of the defen- dants ; to which notice an affidavit was annexed, stating that a copy of the notice had been served on each of the plaintiffs. The defendants thereupon moved that the plaintiffs be nonsuit- ed for not appearing, or that an attachment should be issued against them. The judge denied the motion, and the defen- dants excepted. The defendants then moved the court to give leave to subpoena the plaintiffs to appear and testify ; but the judge refused, and the defendants excepted. The defendants requested the judge to charge that, under the testimony, the plaintiffs were only entitled to a verdict for nominal damages, on the ground that there was no legal proof of any deficiency that the proceedings in chancery were not binding upon the defendants, as they were not parties to the suit. The judge refused so to charge, and the defendants ex- cepted. They then requested the judge to charge that the plaintiffs were not entitled to recover the sum which was al- VOL. IV. 16 122 CASES IN THE SUPREME COURT. Rapelye . Prince. leged to have been paid on account of assessments upon the mortgaged premises, amounting, with interest, to $138,96. The judge refused, and the defendants excepted. The judge charged that the plaintiffs were entitled to a verdict for the whole deficiency, and the defendants excepted. The jury found a verdict accordingly for $1673,43. In addition to the motion for a new trial on the bill of ex- ceptions, the defendants presented affidavits stating that they were surprised on the trial by the non-attendance of the plain- tiffs as witnesses pursuant to the notice given for that purpose, and asked a new trial on the ground of surprise. In answer to this, affidavits were presented stating, among other things, that judgment was perfected on the verdict in August last. A question was also made whether a motion for a new trial on the ground of surprise could be heard at the general term. S. Stevens for the defendants. T. Fessenden, for the plaintiffs. By the Court, BRONSON, J, The defendants insist that the proceedings in chancery for the foreclosure of the mortgage mentioned in the covenant are not evidence against them, be- cause they were not parties to that suit ; and for this they rely on the case of Douglass v. Howland, (24 Wend. 35.) There, one Bingham agreed to account with the plaintiff, and to pay any balance which might be found due from him ; and the de- fendant covenanted with the plaintiff that Bingham would per- form the agreement. This accounting never took place, but an account was taken in chancery in a suit to which the de- fendant was not a party. We held the proceedings in chance- ry were not evidence, or at the least, not conclusive evidence against the defendant. But it was admitted in that case that if Bingham had voluntarily accounted and struck a balance, the defendant would have been bound by it, although he had taken no part in the transaction. Such an accounting would ALBANY, JANUARY, 1843. 123 Rapelye t. Prince. have been within the defendant's undertaking, but he had not covenanted for the results of a suit in chancery. The distinc- tion taken and sustained by authority in that case fully justi- fies the ruling of the judge on this trial. When one covenants for the results or consequences of a suit between other parties, the decree or judgment in such suit is evidence against him, although he was not a party. Now here the covenant plain- ly contemplates a foreclosure of the mortgage, and the defen- dants undertake to make up any deficiency there might be on such foreclosure. They covenant that the assigned security shall produce and yield the principal sum of $2500 with in- terest, over and above all costs and expenses of suing upon cr foreclosing the mortgage, and that they will pay any defi- ciency. A proceeding in chancery is the usual mode of fore- closing mortgages, and the defendants have, in effect, agreed that they will be bound by such foreclosure. We need not go beyond Douglass v. Rowland and the cases there cited, to prove that the judge was right in holding the defendants con- cluded by the proceedings in chancery, which ascertained and settled the " deficiency" or balance due the plaintiffs after ap- plying the money realized by the sale of the mortgaged premises. This view also answers the objection that the defendants could not be charged with the amount the plaintiffs had been obliged to pay to redeem the mortgaged premises from the sale for a street assessment. There can be no doubt that this sum was properly taken into the account in chancery ; but if it were otherwise, the defendants are concluded by the decree which allowed that charge. No fraud is suggested, and we cannot overhale the decree. If a witness who had been duly subpoenaed should either neglect to attend, or leave court after the trial had commenced, it would rest in the discretion of the judge whether he would suspend the trial until the witness could be brought in on at- tachment or otherwise ; and if the decision of the judge upon such a matter could be reviewed in any form, it clearly could 124 CASES IN THE SUPREME COURT. Rapelye v. Prince. not be done upon a bill of exceptions. This is enough to an swer the exception which grew out of the absence of the plain- tiffs when they were called as witnesses. But as the question has been made and discussed at the bar as to the proper mode of bringing in the plaintiff as a witness for the defendant under our usury statute, and as the same question may often arise, it seems proper to dispose of it. When the de- fendant pleads or gives notice of the defence of usury, and veri- fies the truth of his plea or notice by affidavit, he may " call and examine the plaintiff as a witness^ in the same manner as other witnesses may be called and examined." (Stat. of 1837, p. 487, 2.) It seems almost too plain for discussion that the defendant must take the same steps with the plaintiff, as he would with any other person whose attendance as a witness he wished to secure, which are, to serve him with a subpoena in due season, and pay or tender his legal fees. The defendant may call the plaintiff. How call him ? The statute says, as a witness. And then to make the matter quite clear, it adds, " in the same manner as other witnesses may be called." Here the defendants had done nothing beyond giving the plaintiffs notice to attend. That they were not bound to regard. (a) When the defendants had found out their mistake, they wished the judge to suspend the trial until they could seek and serve a subpoena on the plaintiffs. That motion was clearly ad- dressed to the discretion of the judge ; and his decision upon it, whether right or wrong, does not make a point upon which an exception can properly be taken. When parties except upon such matters, the judge should strike the exception out of the bill before he affixes his seal. But whether in or out, the de- cision of the judge upon such a question cannot be reviewed in this form. A motion is also made for a new trial on the ground of sur- prise. The defendants were surprised when they discovered (a) See Bosworth v. Perkamus, (20 Wend. 611.) ALBANY, JANUARY, 125 Rapclyc t. Prince. that they had made a mistake in not serving the plaintiffs with a subpoena. That would hardly be a sufficient ground for granting a new trial under any circumstances. But it is a full answer to this motion that judgment has been perfected on the verdict. A case or bill of exceptions may sometimes be ar- gued after judgment, (Stat. of 1832, p. 188, $ 1 j) but the stat- ute does not extend to this motion. It must not be understood that motions of this kind will hereafter be heard at the general term. They do not belong to the calendar, but should be made at the special term. And this is so, although a case or bill of exceptions may have been made. There cannot often be any very intimate connection between the questions of law which arose on the trial, and an application for a new trial on the ground of surprise. By confining such motions to the speciaj terms, expense and delay will be avoided. When the motion is made where there is also a case or bill of exceptions, we can, if it shall be deemed expedient, suspend a decision on the motion until the calendar cause is argued. This question of practice was not noticed in Tilden v. Gardiner, (25 Wendell, 663.) The 47th rule makes this a non-enumerated motion. The word " surprise" was not in the rule until 1837, and was inserted at that time for the very purpose of sending such motions to the special term. Where there is a motion for a new trial on the ground of new- ly discovered evidence, which must always be accompanied by a case, the ground of surprise, if it exist, may also be added, and the whole will then be heard together. This will satisfy the word " exclusively" in the rule. But in all other cases, a motion on the ground of surprise belongs to the special term, and must, like other motions of the same character, be made without delay. New trial denied. 126 CASES IN THE SUPREME COURT. Fenton v. The People. FENTON vs. THE PEOPLE. To sustain a criminal prosecution for obtaining the signature of one to a mortgage by false pretences, the mere fact of the instrument having been signed is not enough ; a delivery must also be shown. Per NELSON, Ch. J. If the indictment, in such case, pursue the words of the statute by charging that the defendant unlawfully &c. obtained the signature, it will be sufficient, though it do not aver a delivery in terms. The indictment need not describe the premises covered by the mortgage. The case of The People v. Wright, (9 Wend. 193,) commented on and explained. ERROR to the Monroe general sessions, where Fenton was indicted for obtaining the signature of one Rich to a bond and mortgage, by false pretences. The indictment charged that Fenton, heretofore &c., at &c., did falsely pretend to Rich that he (Fenton) was an agent of one Wickoff for the purpose of loaning money, who, he said, was a very wealthy man and an elderly merchant, having retired from business in the city of New-York, and who had $100,000 which he wished to invest on bond and mortgage ; and that if he the said Rich would make and execute his bond and mortgage for the sum of $1000, he (Fenton) would pay him (Rich) the said sum of $1000 as soon as he could procure the same from WickofF, which would not exceed two or three weeks from &c. By means of which said false pretences, the said Fenton did then and there unlaw- fully, knowingly and designedly obtain the signature of the said Rich to a certain bond bearing date &c., in the penal sum of $2000, conditioned for the payment of $1000 to the said Wickoff &c., and also the signature of the said Rich and Eleanor his wife to a certain indenture of mortgage bearing date &c., executed to the said Wickoff upon certain real estate of the said Rich situate in said county of Monroe, conditioned for the payment of the said sum of $1000 &c., which indenture of mortgage was afterwards duly recorded &c. ; with intent then and there to cheat and defraud the said Rich. Whereas, in truth &c. the said Fenton was not the agent of said Wickoff ALBANY, JANUARY, 1843. 127 Fenton t>. Tho People. for the purpose of loaning money, and the said Wickoff had not the sum of $100,000 to invest in bonds and mortgages, nor any sum whatever ; and the said Wickoff was not a wealthy man, nor an elderly merchant retired from business in the city of New- York, but, on the contrary, was a young man &c., in- solvent and destitute : By reason whereof &c. Fenton demurred to the indictment. The district attorney joined in demurrer, and the court below gave judgment in favor of the people j whereupon Fenton sued out a writ of error. j3. Gibbsj for the plaintiff in error. W. S. Bishop, (district attorney,) contra. By the Court, NELSON, Ch. J. It is insisted that the indict- ment is defective for the reason, 1. That it does not set forth an actual delivery of the bond and mortgage to the obligee or mortgagee, or to the prisoner for his benefit ; and 2. That it does not describe the real estate mentioned in the mortgage. The statute provides, that every person who, with intent to cheat or defraud another, shall designedly, or by color of any false token or writing, or by any other false pretence, obtain the signature of any person to any written instrument, &c., upon conviction thereof, shall be punished by imprisonment &c. (2 R. S. 677, $ 53.) It will be seen that the averments in the indictment are sufficient to bring the case within the terms of the statute. I concede, however, that the case must also be brought within the legal meaning and import of the statute ; and that, if a more comprehensive averment than the use of the words themselves is necessary to do this, it should be made. There can be no doubt that, to constitute the of- fence aimed at by this indictment, there must be not only a signing, but a delivery of the instrument. The one without the other would harm nobody. But I am of opinion that the averment here made comprehends both. It is difficult to see how the signatures to the bond and mortgage could have been 128 CASES i:; T.I.. sui'Ui^iE COURT. Fcnton . The People. obtained by the prisoner unless they were delivered to him. If kept by Rich after the signing, clearly they were not obtained. The word imports a delivery. The second objection is equally untenable. The indictment need not set out the particular description of the premises con- tained in the mortgage. It is sufficient for the purposes of the indictment if the instrument appear to be valid and binding upon the real estate such an one as may be used to the prejudice of the party. It is then brought within the class of written instru- ments mentioned in the statute. (The People v. Galoway, 17 Wend. 540.) The case of The People v. Wright, (9 t. Bush. made need not be pointed out by the indictment. The case relied on by the prisoner's counsel, (Rex v. Carr, Russ. fy Ry. 377,) arose under Lord Ellenborough's act, (43 Geo. 3, ch. 8,) which prescribes the means of making the attempt, viz. if any person shall " level any kind of loaded fire arms, and attempt by drawing a trigger, or in any other manner," &c. The in- dictment charged an attempt by pulling the trigger of a loaded blunderbuss. The proof was that it had no priming. The judges held, therefore, that not being loaded so as to be capable of do- ing mischief by having the trigger drawn, it was not loaded within the meaning of the statute. No question was made of the act being an offence ; but only one of variance from the statute to which the indictment referred. The act imputed to Bush was no doubt an attempt to com- mit an offence. It is admitted that he ndeavored to make himself an accessory before the fact ; and to become an acces- sory is, in itself, an flfence. A mere solicitation to commit a felony is an ffence, whether it be actually committed or not. This was held in The Kingv . Higgins, (2 East, 5.) In the case before us there was more. The solicitation was followed by furnishing the instrument of mischief. The question of principal and accessory does not arise, as it would have done provided the crime had actually been committed. Had it been committed, the attempt would have been merged in an actual felony a crime of another species. There would have been a principal arson by Kinney and an accessorial offence by Bush. The attempt of the latter was to have both crimes commit- ted ; and the question of principal, and accessory not being in the case, I see nothing against considering the matter in the light of the ordinary rule, that what a man does by anoth- er he does by himself; in other words, the course taken to commit the arson by the hand of Kinney, was the same thing, in legal effect, as if Bush had intended to set the fire personally, and had taken steps preparatory to that end. An attempt may be immediate an assault, for instance ; but it very commonly means a remote effort, or indirect measure taken with intent to 136 CASES IN THE SUPREME COURT. Supervisor of Galway v. Stimson. effect an object. An abundance of illustration will be found in The King v. Higgins, especially in the learned and copious arguments of the counsel. An approved writer on criminal law speaks of the act of solicitation in that case as belonging to the class of attempts. (1 Russ. on Cr. 49, Jim. ed. of '36.) The offence proved against Bush was, therefore, within the words, and we think within the meaning of the statute. New trial denied. THE SUPERVISOR OF THE TOWN or GALWAY vs. STIMSON. As a general rule, ah public officers, though not expressly authorized to sue by statute, have a capacity to sue commensurate with their public trusts and duties. Per BRONSON, J. In actions either by or against any of the officers named in 2 R. S. 473, 92, the individual name of the incumbent must be used, with the addition of his name of office. Accordingly, where the action was in the name of " The supervisor of the town of .," without mentioning the name of the incumbent ; held, that it could not be maintained. DECLARATION as follows : Saratoga county, ss. The super- visor of the town of Galway in said county, plaintiff in this suit, by E. O. S. his attorney, complains of Earl Stimson, de- fendant in this suit, by declaration &c. ; for that whereas the said defendant on &c. at &c. was indebted to the said plaintiff in the sum &c. and so proceeding with the common money counts in assumpsit. Demurrer and joinder. S. Stevens, for the defendant. JV. Hill, Jr. for the plaintiff. ,By the Court, BRONSON, J. At the common law, in ad- dition to suits by individuals and corporations, there are ALBANY, JANUARY, 1843. 137 Supervisor of Galway t>. Stimaon. some collective bodies, which, although not strictly corpora- tions, have been invested by law with certain corporate powers, and may sue in respect to the matters specially committed to their charge. And, in general, all public officers, though not expressly authorized by statute, have a capacity to sue com- mensurate with their public trusts and duties. (Overseers of Pittstown v. Overseers of Plattsburgh, 18 John. 407 ; Todd \. Birdsall, 1 Cowen, 260, and note, p. 2614, where most of the cases are collected ; and see Palmer v. Vanderiburgh, 3 Wend. 193 ; Silver v. Cummings, 7 Wend. 181 ; Avery v. Slack, 19 Wend. 50.) When the suit is by a public officer, it is brought in the proper name of the individual, with (he ad- dition of his name of office. I have met with no precedent of a declaration like the one now before us, where the suit is in the name of the office, without mentioning the incumbent. It seems to be a suit by the office of supervisor, and not by the officer, and cannot, I think, be maintained. Supervisors of towns, and several other public officers, are now expressly authorized by statute to sue. (2 R. S. 473, 92.) And although the section which confers tHe power does not specify the particular manner in which the officer shall pro- ceed, it is plain enough from what follows that the legislature intended the individual should be named. When officers are sued, the action must be " brought against them individually, specifying in the process, pleadings, and proceedings, their name of office." ( 96.) And " no suit commenced by or against any officers named in this article, shall be abated or discontinued by the death," removal or resignation of such officers, or the expiration of their term of office ; but the court in which the action is pending " shall substitute the names of the successors in such office." (^ 100.) If the suit were brought by or against the office, instead of the officer, as is done here, there could be no occasion for a substitution ; for the office^never dies, resigns or expires, nor is it ever removed. This provision, makes it quite evident that the legislature sup- posed the individual was to be named, as well where the suit VOL. IV. 18 138 CASES IN THE SUPREME COURT. Bishop v. Bishop. was brought by, as against a public officer. And upon that supposition the statute proceeds to relieve the officer from the burden, which might otherwise come upon him, of paying the judgment,, and makes the sum recovered a charge either upon the funds in the hands of the officer, or upon the town or coun- ty, as the case may be. ( 102 8.) When a judgment is re- covered against the supervisor of a town, no execution can be awarded, unless the recovery be for the costs of a suit com- menced by the officer in his individual name j that is to say, where he sues as an individual without adding his official character. ( 107, and Jlvery v. Slack, 19 Wend. 50.) When he names himself supervisor, and the action is properly brought in that character, if judgment passes against him, the execution is stayed, and the money is either to be paid out of the funds in his hands, ( 105,) or to be levied by tax on the town. (^ 102, 3.) This makes a complete system, in which justice is done to the public and its servants, and to those who may have a legal controversy with public officers. We are of opinion that the individual who holds the office, as well as the office itself, should have been named in the declaration, and that the action in its present form cannot be maintained. Judgment for the defendant BISHOP and others vs. BISHOP. Where a testator in 1825 executed a will devising certain real estate to his son, and died in 1840 ; held, that though the son died in 1833, the estate vested in his children, and not in the heirs at law of the testator. Otherwise, if the testator had survived the devisee, and died before the revised statutes took effect EJECTMENT, tried before DAYTON, C. Judge, at the Living- ston circuit, in September, 1842. Clement Bishop, junior, be- ing seized of two parcels of land in Avon, Livingston county- t ALBANY, JANUARY, i843. (39 Bishop v. Bishop. the premises in question in this suit on the 26th day of Au- gust, 1825, made his last will, by which he devised this property to his son Clement Bishop, junior, without any words of inheritance, but with such a personal charge on the devisee as would carry a fee. The devisee died in the lifetime of the testator, on the 20th of September, 1833, leaving the defen- dant George Bishop his heir at law. The testator died in Sep- tember, 1840, leaving three children and the children of two deceased children him surviving. The plaintiffs, Asa Bishop and Elizabeth Turner, are two of the children of the testator, and claim to recover two-fifths of the premises in question as his heirs at law, on the ground that the devise to Clement Bishop, junior, lapsed by his death in the lifetime of the testa- tor. The defendant is the son and heir at law of the devisee, and claims to hold in fee under the devise to his father. A verdict was rendered for the plaintiffs, subject to the opinion of the court on the question whether this was a lapsed devise. A. Gardiner, for the plaintiffs. J. Young, for the defendant. By the Court, BRONSON, J. By the law as it stood in 1825, when the will was made, the devise to Clement Bishop, junior, would have lapsed on his death in the lifetime of the testator, and the estate would have gone to the heirs at law of the testa- tor. But the statute which took effect in 1830, ten years be- fore the testator died, has given a different direction to the property, and it now goes to the heir at law of the devisee, where, as in this case, such heir is a descendant of the devisee, and the devisee is a descendant of the testator. (2 J?. S. 66, 52.) The will did not take effect until the testator died, which was in 1840, and then the case fell under the influence of the new statute. ( De Peysterv. Clendining, (8 Patge,295, 304.) Section seventy, (2 R. S. p. 68,) only goes to the execution and 140 CASES IN THE SUPREME COURT. Taylor v. Porter. construction of wills made prior to 1830, and does not touch this question. As the devise has not failed, the plaintiffs can- not recover. Judgment for the defendant. TAYLOR vs. PORTER & FORD. The statute (1 R. S. 513, 77 et seq.) authorizing a private road to be laid out over the lands of a person, without his consent, is unconstitutional and void. NELSON, Ch. J. dissented. The legislature can only exercise such powers as have been delegated to it, and when it transcends these limits, its acts are utterly void. Per BRONSON, J. The effect to be given to a general grant of legislative power like that contained in Art. 1, 1 of the constitution of this state, considered and discussed. The phrase law of the land t in Art. 7, 1 of the constitution, imports a suit, trial and judgment according to the course of the common law, or in the established and usual mode of contesting individual rights. Per BRONSON, J. So as to the phrase due process of law, in Art. 7, 7 of the constitution. Per BRONSON, J. Private property cannot be taken even for public use, without making just com- pensation to the owner. TRESPASS for breaking and entering the plaintiff's close at Milton, in the county of Saratoga, on the 1st of May, 1841, and on divers other days and times &c., and digging up, subverting and carrying away the earth and soil, and breaking down, prostrating and destroying the plaintiff's fence ; and also for making and laying out a private road through and over the plaintiff's close, whereby he was prevented from having the use, benefit and enjoyment thereof, to the damage &c. Plea in justification, that before the said time when &c., to wit, on the 18th of May, 1840, the defendants were and still are seised and possessed of a certain close contiguous and next adjoining to the plaintiff's close, and on that day the defen- dants made application in writing to the commissioners of highways of the town of Milton, in which town the plaintiff's close was situated, to lay out a private road from the highway ALBANY, JANUARY, 1843. 14] Taylor t>. Porter. adjoining the plaintiff's close, through that close to the close of the defendants. The defendants then alleged in detail the doing of the several things required by the statute for laying out private roads, and that the commissioners oh the 24th of July, 1840, made an order in writing laying out a private road from the highway through the plaintiff's close to the close of the defendants, a distance of 545 feet, and of the width of three rods, for the use of the said defendants, their and each of their heirs and assigns. The defendants then alleged that the commissioners caused a record to be made of the road, and averred in detail the proceedings required by the statute for as- sessing the plaintiff's damages, and an assessment made on the 10th of March, 1841. The amount of the damages was not stated in the plea, nor was there any averment that the damages had been paid or tendered to the plaintiff. By virtue of the several proceedings aforesaid, the defendants justified the entry &c. and the several acts complained of, doing no unnecessary damage to the plaintiff &c., and concluding with a verification Demurrer and joinder. G. H. Mumford, for the plaintiff, made two points, viz. : 1. That the statute authorizing the laying out of private roads was unconstitutional and void ; and 2. That the plea was bad for not averring a payment or tender of the damages. JV. Hill Jr. for the defendants. BRONSON, J. Every person liable to be assessed for high- way labor, may apply to the commissioners of highways of the town in which he resides to lay out a road. Whenever application is made to the commissioners for a private road, they are to summon twelve freeholders of the town to meet on a day certain, of which notice must be given to the owner or occupant of the land through which it is proposed to lae out the road. The freeholders, when met and sworn, ary to view the lands through which the road is applied for, and if they determine that the road is necessary, they are 142 CASES IN THE SUPREME COURT. Taylor r. Porter. to make and subscribe a certificate in writing to that effect, and the commissioners are required thereupon to lay out the road, and cause a record of it to be made in the town clerk's office. The damages of the owner of the land through which the road is laid, if not adjusted by agreement, are to be assessed by a jury of six freeholders of some other town, and are to be paid by the person applying for the road. " Every such private road, when so laid out, shall be for the use of such applicant, his heirs and assigns; but not to be converted to any other use or purpose than that of a road. JVbr shall the occupant or owner of the land through which such road shall be laid out y be per- mit fed to use the same cs a rco.d, unless he shall have signified his intention of so making use of the same, to the jury or com- missioners who ascertained the damages sustained by laying out such road, and before such damages were so ascertained." (1 R. S. 513, 54, 7779.) Th.e road is paid for and owned by the applicant. The public has no title to, nor interest in it. No citizen has a right to use the road as he does the public highway. He can only use it when he has business with the road owner, or some other lawful occasion for going to the land intended to be benefitted by the road. He can only justi- fy an entry on the road, when he could justify an entry on the land on account of which the road was laid out. Even the owner of the land over which the road passes, unless he has given notice of such an intention before the damages are as- sessed, has no right to use the road for his own purposes ; and if he does so, or if his fences encroach upon the road, the owner of the road may have an action against him. (Lambert v. Hoke, 14 John. 383 ; Herrick v. Stover, 5 Wend. 580.) In short, the road is the private property of the applicant. In the words of the statute, the road " shall be for the use of such applicant, his heirs and assigns." This right of way is an incorporeal hereditament, in which the owner has an estate of inheritance. The owner of the land over which the road is laid has not lost the entire fee, but he has lost the beneficial use and enjoyment of his property forever. It ALBANY, JANUARY, 1843. 143 Taylor r. Porter. is not, however, material to enquire what quantum of interest has passed from him. It is enough that some interest some portion of his estate, no matter how small has been taken from him without his consent. The property of A. is taken, without his permission, and transferred to B. Can such a thing be rightfully done ? Has the legislature any power to say it may be done ? I will not stop to enquire whether the damages must not be paid before the title will pass. The difficulty lies deeper than that. Whatever sum may be tendered, or however ample may be the provision for compensation, the question still remains, can the legislature compel any man to sell his land or his goods, or any interest in them, to his neighbor, when the property is not to be applied to public use 1 Or, must it be left to the owner to say, when, to whom, and upon what terms he will part with his property, or whether he will part with it at all ? The right to take private property for public purposes is one of the inherent attributes of sovereignty, and exists in every independent government. Private interests must yield to pub- lic necessity. But even this right of eminent domain cannot be exercised without making just compensation to the owner of the property. (Const. Art. 7, 6.) And thus, what would otherwise be a burden upon a single individual, has been made to fall equally upon every member of the state. But there is no provision in the constitution that just compensation shall be made to the owner when his property is taken for private pur poses ; and if the power exists to take the property of one man without his consent and transfer it to another, it may be exer- cised without any reference to the question of compensation. The power of making bargains for individuals has not been delegated to any branch of the government, and if the title of A. can, without his fault, be transferred to B., it may as well be done without as with a consideration. This view of the question is sufficient to put us upon the enquiry, where can the power be found to pass such a law as that under which the de- fendants attempt to justify their entry upon the plaintiff's land ? 144 CASES IN THE SUPREME COURT. Taylor v. Porter. It is not to be presumed that such a power exists, and those who set it up should tell where it may be found. Under our form of government the legislature is not supreme. It u only one of the organs of that absolute sovereignty which resides in the whole body of the people. Like other depart- ments of the government, it can only exercise such powers as have been delegated to it j and when it steps beyond that boun- dary, its acts, like those of the most humble magistrate in the state who transcends his jurisdiction, are utterly void. Where, then, shall we find a delegation of power to the legislature to take the property of A. and give it to B., either with or with- out compensation ? Only one clause of the constitution can be cited in support of the power, and that is the first section of the first article, where the people have declared that " the le- gislative power of this state shall be vested in a senate and as- sembly." It is readily admitted that the two houses, subject only to the qualified negative of the governor, possess all " the legislative power of this state ;" but the question immediately presents itself, what is that " legislative power," and how far does it extend-? Does it reach the life, liberty or property of a citizen who is not charged with a transgression of the laws, and when the sacrifice is not demanded by a just regard for the public welfare 1 In Wilkinson v. Leland, (2 Peters, 657,) Mr. Justice Story says : " The fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred. At least, no court of justice in this country would be warranted in as- suming that the power to violate and disregard them a pow- er so repugnant to the common principles of justice and civil liberty lurked under any general grant of legislative authority, or ought to be implied from any general expressions of the will of the people. The people ought not to be presumed to part with rights so vital to their security and well being, without very strong and direct expressions of such an intention." He added : " We know of no case in which a legislative act to transfer the property of A. to B. without his consent, has ever ALBANY, JANUARY, 1843. 145 Taylor t>. Porter. been held a constitutional exercise of legislative power in any state in the union. On the contrary, it has been constantly re- sisted as inconsistent with just principles, by every judicial tri- bunal in which it has been attempted to be enforced." (See also 2 Kent's Coin. 13, 340, and cases there cited.) The security of life, liberty and property, lies at the foundation of the social compact ; and to say that this grant of " legislative power" in- cludes the right to attack private property, is equivalent to saying that the people have delegated to their servants the power of defeating one of the great ends for which the govern- ment was established. If there was not one word of qualifica- tion in the whole instrument, I should feel great difficulty in bringing myself to the conclusion that the clause under con- sideration had clothed the legislature with despotic power ; and such is the extent of their authority if they can take the property of A., either with or without compensation, and give it to B. " The legislative power of this state" does not reach to such an unwarrantable extent. Neither life, liberty nor property, except when forfeited by crime, or when the latter is taken for public use, falls within the scope of the power. Such, at least, are my present impressions. But the question does not necessarily turn on the section granting legislative power. The people have added negative words, which should put the matter at rest. " No member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of kis peers." (Const. Art. 7, 1.) The words "by the law of the land," as here used, do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction abso- lutely nugatory, and turn this part of the constitution into mere nonsense. The people would be made to say to the two houses, " You shall be vested with ' the legislative power of the state ;' but no one ' shall be disfranchised, or deprived of any of the rights or privileges' of a citizen, unless you pass a stat- ute for that purpose :" in other words, " You shall not do the VOL. IV. 19 146 CASES IN THE SUPREME COURT. Taylor v. Porter. wrong, unless you choose to do it." The section was taken with some modifications from a part of the 29th chapter of Magna Charta, which provided, that no freeman should be taken, or imprisoned, or be disseised of his freehold &c., but by lawful judgment of his peers, or by the law of the, land. Lord Coke in his commentary upon this statute says, that these words, "by the law of the land," mean "by the due course and process of law ;" which he afterwards explains to be, " by indictment or presentment of good and lawful men, where such deeds be done in due manner, or by writ original of the common law." (2 Inst. 45, 50.) In North Carolina and Tennessee, where they .have copied almost literally this part of the 29th chapter of Magna Charta, the terms " law of the land" have received the same construction. (Hoke v. Henderson, 4 Dev. 1 ; Jones v. Perry r , 10 Ferger, 59 ; and see 3 Story on Const. U. S. 661 ; 2 Kent's Com. 13.) The meaning of the section then seems to be, that no member of the state shall be disfranchised, or deprived of any of his rights or privileges, unless the mat- ter shall be adjudged against him upon trial had according to the course of the -common law. It must be ascertained judi- cially that he has forfeited his privileges, or that some one else has a superior title to the property he possesses, before either of them can be taken from him. It cannot be done by mere legislation. But if there can be a doubt upon the first section of the seventh article, there can, I think, be none that the seventh section of the same article covers the case. " No person shall be deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use, with- out just compensation." In the Matter of Albany- Street , (li Wend. 149,) where it was held that private property could not be taken for any other than public use, Chief Justice Savage went mainly upon the implication contained in the last mem ber of the clause just cited. He said : " The constitution, by au- thorizing the appropriation of private property to public use, impliedly declares, that for any other use, private property ALBANY, JANUARY, 1843. 147 Taylor t>. Porter. shall not be taken from one and applied to the private use of another." And in Blood good v. The Mohawk 4* Hudson Rail Road Co. (18 Wend. 59,) Mr. Senator Tracy said, the words should be construed " as equivalent to a constitutional declara tion, that private property, without the consent of the owner, shall be taken only for the public use, and then only upon a just compensation." I feel no disposition to question the soundness of these views ; but still it seems to me that the case stands stronger upon the first member of the clause : u No person shall be deprived of life, liberty or property, without due process of law. 11 The words " due process of law," in this place, cannot mean less than a prosecution or suit instituted and conducted according to the prescribed forms and solemni- ties for ascertaining guilt, or determining the title to property. It will be seen that the same measure of protection against legislative encroachment is extended to life, liberty and prop- erty ; and if the latter can be taken without a forensic trial and judgment, there is no security for the others. If the legis- lature can take the property of A. and transfer it to B., they can take A. himself, and either shut him up in prison, or put him to death. But none of these things can be done by mere legislation. There must be " due process of law." Perhaps the whole clause should be read together, (Matter of John and Cherry streets, 19 Wend. 659,) and then if it do not, as I have supposed, amount to a direct prohibition against taking the property of one and giving it to another, it con tains, at the least, an implication too strong to be resisted that siii h an act cannot be done. Of course, I shall not be understood as saying that a trial and judgment are necessary in exercising the right of eminent domain. When private property is taken for public use, the only restriction is, that just compensation shall be made to the owner. But when one man wants the property of another, I mean to say that the legislature cannot aid him in making the acquisition. This question is only new with us in its application to pri- 148 CASES IN THE SUPREME COURT. Taylor c. Porter. vate roads. That a statute is unconstitutional and void which authorizes the transfer of one man's property to another with out the consent of the owner, and although compensation is made, was adjudged by this court in the Matter of JHbany- streetj (11 Wend. 149;) and again in the Matter of John and Cherry streets, (19 id. 659.) The same doctrine was held by the chancellor in Varick v. Smith, (5 Paige, 137 ;) and it was admitted by all the members of the court of errors who delivered opinions in Bloodgood v. The Mohawk and Hudson R. R. Co., (18 id. 9.) I might have contented myself with referring to these cases as settling the question ; but in so grave a matter as that of declaring an act of the legislature unconstitutional and void, I wished very briefly to assign the reasons which had conducted me to that conclusion. There cannot be a very great number of private roads in the state ; ami as to most of those which exist, it is probable that the land owners have in one form or another consented to their use. And when we consider how liberally public roads have already been opened, and how easily they may be obtained when wanted, there cannot be many individuals who will be affected by our decision. But whatever consequences may fol- low, I am of opinion that a private road cannot be laid out with- out the consent of the owner of the land over which it passes. Co WEN, J. concurred. NELSON, Ch. J. dissenting. I cannot concur in the opinion that the statute authorizing the laying out of private roads is unconstitutional and void. It was first enacted by the colonial legislature in 1772, and has been in force in the colony and state ever since a period of about seventy years. (See 2 Laws c/JV. F. 664, 19, Van Sch. ed.; id. 723, 2 ; 1 Laws ofN. Y. 139, 141, 2, 13, Jones & Var. ed.; 2 R. L. of 1813, p. 276, 20; 1 R. S. 517, 77 to 79.) (a) Its constitution- ality has never before, so far as I know, been doubted. (a; And see 3 Laws of N. Y. 258, $ 17, Wei. ed.; 1 Laws of N. Y. 595, $ 16, Kent Rad. ed. ALBANY, JANUARY, 1843. 149 Taylor c. Porter. Two points were taken in argument, either of which, it was supposed, would be sufficient to require us to adjudge the act in question invalid. They are based upon the provisions in our state constitution, which declare, 1. That private prop- erty shall not be taken for public use without just compensa- tion ; and 2. That no person shall be deprived of life, liberty or property, withou^ due process of law. (Const. o/"JV". F. 1821, Art. 7, 7.) The old constitution of 1777 embraced neither of these provisions, though the latter formed a part of the bill of rights passed in January, 1787, (1 R. L. of 1813, p. 47, 2,) and of course has stood fifty-six years co- temporary with the statute under consideration. Both clauses are found in the amendments to the constitution of the United States, (Art. 5 ;) but this was designed as a limitation of the powers of the national government, and is inapplicable to the legislation of the states. (Barron \. The Mayor fyc. of Balti- more, 7 Peters* Rep. 243 ; Livingston v. The Mayor fyc. of New-York, 8 Wend. 85 ; 2 Cowen's Rep. 818, and note (6).) 1. It is said the laying out of a private road over the land of another is an appropriation t)f the property for private and not for public purposes, and therefore a violation of the spirit of that clause in the constitution which forbids the taking of it for public use without making just compensation. Whether the security of the citizen against such arbitrary legislation as the argument contemplates, depends upon this clause of the constitution, or rests upon the broader and more solid ground of natural right never delegated by the people to the Ian* ma- king power, it is unnecessary now to enquire. I am far from disputing the existence of the rule itself. Private property annot be taken for strictly private purposes without the con- sent of the owner, whether compensation be provided or not. But I deny that the statute authorizing the laying out of pri- vate ways is at all in conflict with the general rule. The construction of roads and bridges is a power belonging to all governments, in the exercise of which every citizen or subject is deeply concerned. Works of this nature are indispensable 150 CASES IN THE SUPREME COURT. Taylor . Porter. to the prosperity of a country. They must begin with its earliest settlement and keep pace with its advancement in pop- ulation, in commerce and social enjoyment. So intimately are they interwoven with individual enterprize and the public welfare, that their establishment and regulation have hitherto been regarded as an essential branch of internal police ; the first to be attended to, and the last to be neglected. Private roads in the settlement of a country are often as necessary for the accommodation of the inhabitants, as those of a public nature. Thoroughfares and highways cannot be made to trav- erse every part of the territory, so as to reach the dwell- ings of all who need their use. And what must be the una- voidable result, if the power to lay out private roads under public authority be denied 1 We have in this state about eight hundred towns, and I doubt not there may be an average of some two or three private roads in each, accommo- dating probably four thousand or more inhabitants. Is not the public interest concerned that they shall have access to our high- ways and thoroughfares 1 If it be refused them, how are they to discharge the various duties enjoined by law, or enjoy the privileges which the law was intended to secure to them ? With what propriety can they be called on to work upon the high ways, to serve in the militia, as jurors, or as public officers, when they cannot leave their possessions without committing a trespass ? In what way are they to exercise the elective fran- chise, or avail themselves of the numerous rights, civil and po- litical, designed by government as the common property of all ? A denial of the power in question would operate like a sentence of disfranchisement and outlawry pronounced against them, though chargeable with nothing save misfortune. The considerations thus briefly suggested, and others of a like nature which might be adverted to, are sufficient to show that the taking of private property, under legislative authority, for the purpose of being used as a road, whether to accommodate one man or more, falls strictly within the right of eminent domain ; a right that no one disputes, and under which the government ALBANY, JANUARY, 1848. Taylor t>. Porter. may always take the property of the citizen if the public in- terest or welfare demand it. All our grants to individuals and corporate bodies for the purpose of making turnpikes, bridges, rail-roads and canals, for establishing ferries, erecting wharves and basins, and draining swamps, marshes &c., stand upon this principle. (Commonwealth v. Breed, 4 Pick. 460, 463 ; Cot- rill v Myrick, 3 Faxrf. 222, 233 ; Dyer v. Tuscaloosa Bridge Company, 2 Porter's Rep. 296, 303 ; Boston Water Power Co. v. Boston <$ Wor. Rail Road Co., 23 Pick. 394,5 ; 2 Kent's Com. 340, 42/4 ed. and the notes.) And I assent to the proposition laid down by Chancellor Walworth in Beekman v. The Sara- toga 4* Schenectady Rail Road Co., (3 Paige, 73,) viz. that " if the public interest can be in any way promoted by the ta- king of private property, it must rest with the wisdom of the legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain." (See also Varick v. Smith, 5 Paige, 137 ; Commonwealth v. Breed, 4 Pick. 463, per Morton, J.- } Boston Water Power Co. v. Boston fy Wor. Rail Road Co., 23 Pick. 394, 5, per Shaw, Ch. J.; 4 Kent's Com. 340, th ed., note.) In Pennsylvania it has been ex- pressly decided, notwithstanding a clause in their constitution similar to the one in ours, that the legislature may authorize the laying out of private ways for the purpose of enabling citizens to reach the public thoroughfares. (Harvey v. Thomas, 10 Watts' Rep. 63.) (6) 2. As to the clause in the constitution declaring that no per- son shall be deprived of his property without due process of law, (Art. 7, $ 7,) it is sufficient to refer to the authorities es- tablishing that this provision has no necessary application where (6) The provision in the constitution of Pennsylvania is thus : " Nor shall any man's property be taken or applied to public use, without the consent of his represen- tatives, and without just compensation being made." (Art. 9, 10.) It a!o j ro. vides, that no person shall " be deprived of his life, liberty or property, un!fs hy the judgment of his peers, or the law of the land." (Art. 9, 9.) 152 CASES IN THE SUPREME COURT. Taylor v. Porter. the government, in the exercise of the right of eminent do- main, authorizes the taking of private property for public pur- poses. (Livingston v. The Mayor fyc. of New-York, 8 Wend. 85 ; Bloodgood v. The Mohawk fy Hudson Rail Road Co., 18 id. 1 ; Beekman v. The Saratoga fy Schenectady Rail Road Co., 3 Paige, 45 ; Varick v. Smith, 5 id. 137.) 3. There is another view of this question which appears to me decisive. I have already stated that the statute for laying out private roads was passed in 1772, and has been in full and active operation ever since. The old constitution was adopted in April, 1777, and, among other things, ordained, " that such parts of the common law of England &c., and of the acts of the legislature of the colony of New- York, as together did form the law of the said colony on the 19th of April, 1775, shall be and continue the law of this state," subject to modification by the legislature. An exception is then made in repect to all laws repugnant to the Constitution. (Const. o/'1777, 35.) As there is nothing to be found, however, in any of its provisions at va- riance with the right of authorizing the laying out of private roads, the section quoted amounts to a direct constitutional af- firmance of the act of 1772. Our present constitution, which was adopted in 1821, ordained that " such parts of the common law, &c. and such acts of the legislature as are now in force, shall be and continue the law of this state," subject to altera- tion by the legislature ; and then an exception is added similar to the one contained in the former constitution. (Const, of 1821, Art. 7, 13.) Now I find no direct assertion of any principle in the new constitution to which the statute in ques- tion can be said to be repugnant. The clause forbidding pri- vate property to be taken for public use without just compen- sation does not reach it ; or if it does, the condition has been complied with, as the statute expressly provides for compensa- tion. Even were it conceded that the statute is in violation of natural right, still the people might adopt it, if they thought prop- er, as a part of the fundamental law of the state ; and I think they have done so. The only other clause of the constitution ALBANY, JANUARY, 1843. 153 Taylor c. Porter. to which the statute can be said to be repugnant, is the one which forbids that any citizen shall be deprived of his property without due process of law. This, we have seen, was contain- ed in the bill of rights passed in January, 1787, and of course stood upon the statute book along with the act in question for about thirty-five years preceding the adoption of the new con- stitution, and has since existed in the form of a constitutional provision for about twenty-two years ; and during all that time, neither lawyer nor layman, legislator nor judge, has ventured to suggest there was a discrepancy between the fundamental law and the statute. As the legislative, professional and judi- cial intelligence of the state for the last half century has fail- ed to discover any such discrepancy, and the people have acted under the statute for so long a period without a doubt of its validity being raised, this practical approval of its provisions, as well as of the constitution, should be regarded as decisive in favor of the interpretation which harmonizes both. There can be no doubt, the universal opinion heretofore has been, that the law authorizing the laying out of private roads stands upon the same principle with the law in respect to highways ; and that all these improvements, if not equally necessary, are at least so much a matter of public concern as to justify the full exercise of the right of eminent domain. I will add, if the government of this state does not possess the power of authorizing the laying out of private roads, it is probably the only state government in the union to which the power has been denied j and I may probably say, the only government in the world. Judgment for the plaintiff. VOL. IV. 20 154 CASES IN THE SUPREME COURT. Brown v. Stebbins. BROWN vs. STEBBINS & THURBER. A covenant was entered into between S. and T. of the one part and B. of the oth- er, wherein S., who owned certain lands, agreed to sell them to the beat ad. vantage he could obtain for them in cash between the date of the covenant and the first of October then next, and pay the proceeds to B., within the time men. tioned, to apply on a mortgage executed to him by S. ; after which followed tnis clause" Now therefore we agree that the said moneys so received as afore- said shall be paid to said B. &c., and that said S. shall use all necessary care and diligence in the sale of said lots." HELD, an undertaking by S. and T. that, among other things, S. should use all necessary care and diligence to make sales within the time specified, and that he should use the like care and dili- gence to sell to the best advantage or for the best price which could be obtained within the same period. Where, in an action on such covenant, one of the breaches assigned was, that " the defendants or either of them did not pay the proceeds of the sale to the plain- tiff," without alleging that any sale had been made ; held bad on special de- murrer. So of a breach that " S. aid not zed and dispose oj the lands to the best advantage or for the most he could obtain," without showing whether the plaintiff meant to go for improperly omitting to sell at all, or for selling at too low a price. Otherwise, of a breach following and negating the words of the covenant ; e. g. that S. did not use all necessary care and diligence in the sale of the lands. As a general rule, it is sufficient, in assigning a breach, to follow and negative the words of the covenant. An exception to the rule obtains where this mode of pleading does not necessarily amount to a breach. Per BRONSON, J. When the pleader undertakes to assign a breach coming within the substance, effect or intent of the covenant, he is held to a more strict rule than when he follows either negatively or affirmatively, as the case may be, the words of the contract. Per BRONSON, J. Where a declaration in covenant assigns several distinct breaches, some of which are good, but others bad, and the defendant interposes a demurrer going to the whole declaration, the plaintiff will be entitled to judgment on the demurrer. The defendant, under such circumstances, should plead to the breaches which are well assigned, and demur to the others. COVENANT, upon the following agreement under the hands and seals of the defendants : " This agreement made this 27th day of January, in the year one thousand eight hundred and thirty-seven, between Jared N. Stebbins and Philip Thurberof ALBANY, JANUARY, 1843. 155 Brown v. Stebbim. the one part, and William S. Brown of the other part : Where- as the said Jared N. Stebbins has purchased a farm of the said William, and has given a mortgage on said farm for the pur- chase money thereof, and for the purpose of further securing the said purchase money the said Jared has a deed of the fol- lowing lots of land situate in Bangor, in the state of Maine, [describing them by numbers,] the said Jared N. agrees to sell and dispose of said lots of land to the best advantage that he can obtain for the same between this time and the first day of October next for cash, and pay the proceeds of said sales (the ordinary costs and expenses of said sales excepted,) to said William S. Brown by the first day of October next, which said proceeds are to be applied towards the payment of the afore- said mortgage. Now therefore we agree that the said moneys so received as aforesaid shall be paid to said Brown, or s-o much thereof as shall pay off and satisfy said mortgage, if there shall be enough for that purpose, and that said Stebbins shall use all necessary care and diligence in the sale of said lots. Given under our hands and seals the day and year above written." After setting out the covenant in hac verba, the pleader pro- ceeded in the first count as follows : " And the said plaintiff in fact says that said Stebbins did not sell and dispose of said lots to the best advantage, or for the most he could obtain for them ; nor did said Stebbins use necessary care and diligence in the sale of said lots, but on the contrary used no care or dili- gence in the sale thereof. And the said plaintiff avers that he has always been ready to receive the avails of the said lots &c. ; yet the said defendants have not, nor has either of them paid said plaintiff any sum or sums of money whatever, or any other thing arising from said lots, to the great damage of the said plaintiff." In the second count, after setting out the contract, the breaches were, that Stebbins did not sell and dispose of the lots to the best advantage that he could obtain for the same j that the defendants or either of them did not pay the proceeds CASES IN THE SUPREME COURT. Brown v. Stebbins. of the sale of the lots, or any sum or sums of money whatever, to the plaintiff, to be applied towards the payment of the mort- gage and that Stebbins did not use all necessary care and dili- gence in the sale of said lots. The defendants demurred to the declaration, assigning special causes and the plaintiff joined in demurrer. H. Gay, for the defendants. S. Boughton, for the plaintiff. By the Court, BRONSON, J. The contract with its recitals amounts to this : The defendant Stebbins had mortgaged a farm to the plaintiff, and the plaintiff wished to obtain further security for the payment of the mortgage debt. Stebbins owned several lots of land at Bangor, from the sale of which the whole or some part of the debt might be paid. He cove- nanted with the plaintiff that he would sell the lots " to the best advantage" in other words, for the best price he could obtain for the same in cash between the date of the agreement and the first day of October then next, and that he would " pay the proceeds of said sales" (deducting expenses) to the plain- tiff by the first day of October, to be applied on the mortgage. Thus far we have nothing but the several covenant of Stebbins. But Thurber now comes in as a surety, and then we have the joint covenant of both defendants " that the said moneys so received as aforesaid shall be paid to said Brown." This only bound Thurber to see that the proceeds were paid over in case sales should be made. The plaintiff wanted something more. A further joint covenant was therefore added, "that said Steb- bins shall use all necessary care and diligence in the sale of said lots." On a fair construction of this covenant, I think the defendants undertook for two things firs that Stebbins should use all necessary care and diligence to male sales within the specified time ; and second, that he should use such care and diligence to sell the lots "to the best advantage," or for tht ALBANY, JANUARY, 1843. 157 Brown r. Stebbins. best price that could be obtained for the same within that time. The breaches assigned are substantially the same in both counts. One breach is, that the defendants, or either of them, did not pay the proceeds of the sale of the lots to the plaintiff. This is bad. It can only be made out by argument and infer- ence, if at all, that there were any sales or proceeds, and the demurrer is special. It does not follow from the fact that no proceeds were paid over, that there were any proceeds to be paid over. The fact that sales were made and moneys receiv- ed by Stebbins should have been directly alleged. (Serra v. Wright , 6 Taunt, 45.) If there were no sales, it is impossible that there should be a breach of this covenant. Another breach to which objection has been taken by special demurrer is, that " Stebbins did not sell and dispose of the lots to the best advantage, or for the most he could obtain for them." Does the pleader mean that Stebbins did not sell at all, or that he did not sell for the best price which could have been obtained 1 It is impossible to say which. If there was no sale, that fact should have been directly alleged ; and if the complaint be that Stebbins sold, but did not get the best price which could have been obtained, the pleader should have said so in explicit terms. Without such an averment the defendants can neither know how to plead, nor what evidence they may expect to meet on the trial. The breach is not assigned in the words of the joint cove- nants, or either of them. And when the pleader undertakes to assign a breach coming within the substance, effect or in- tent of the covenant, he is held to a more strict rule than when he follows, either negatively or affirmatively, as the case may be, the words of the contract. (Com. Dig. Pleader, (C. 47).) The remaining breach is, that Stebbins did not use all neces- sary care and diligence in the sale of the lots. Here the plead- er has followed and negatived the words of one of the joint covenants, and as a general rule that is sufficient. (Hughes v. Smith, 5. John. 168 ; Smith v. Jansen, 8 John. Ill ; Kar- 158 CASES IN THE SUPREME COURT. Birdseye t>. Ray. thans v. Owngs,2 Gill <$ John. 430 ; McGeehan v. Mc.Laugh- lin, 1 Hall, 33 ; Com. Dig. Pleader (C. 45) ; 1 Chit. PI. 365, 6, ed. of '37.) There is an exception to the rule, where this mode of pleading does not necessarily amount to a breach of the covenant. (Julliand v. Burgott, 1 1 John. 6 ; Gould v. Allen, 1 Wend. 182; Thomas v. FawJVm, 4 JFewd. 549.) It is undoubtedly true that the defendants may suffer some incon- venience for the want of a more specific breach. They are not advised whether the plaintiff intends to go for a want of care and diligence to make sales, or for not selling at the best price which might have been obtained, or for both. But still the rule is well settled that the pleader may follow the words of the covenant, either negatively or affirmatively, as the case may be, where that will necessarily show the contract has been broken ; and such is the case here. If Stebbins has not used all necessary care and diligence in the sale of the lots, the defen- dants have not kept their covenant. As this breach is well assigned, and the demurrer goes to the whole declaration, the plaintiff is entitled to judgment. The defendants should have pleaded to the breach in each count which is well assigned, and demurred to the others. Judgment for the plaintiff. BIRDSEYE vs. RAT. Where a sheriff seizes goods owned by two persons as tenants in common, upon a fi. fa. against one of them, and afterwards the latter purchases the share of his co-tenant, the sheriff may advertise and sell the entire interest or property in the goods without making a new levy. Personal property transferred by a defendant in a fi. fa. before actual levy, though after the writ issued, is not liable to seizure under the writ, provided the transferee be a bona fide purchaser for a valuable consideration, and took the property with- out notice of the writ. A mortgagee, though for a pre-existing debt, ii a purchaser pro tanto within the above rule. ALBANY, JANUARY, 1843. 159 Birdscye t>. Ray. ON error from the Onondaga common pleas. Ray sued Birds- eye before a justice, in trover, for a quantity of wheat, and re- covered judgment for one hundred dollars, besides costs ; where- upon Birdseye appealed to the common pleas. On the trial in the latter court, the facts proved were as follows : In the fall of 1840, one Houghtailing sowed about fifteen acres of wheat upon shares, on a farm belonging to one Philips. On the 19th of September, shortly after Houghtailing had finished sowing the wheat, it was levied upon by the sheriff under &Ji. fa. against Houghtailing in favor of one Vinal. The^. fa. was received by the sheriff on the 21st of July, 1840, and was returnable on the 3d Monday of October follow- ing. The sheriff seized the whole of the wheat, not knowing at the time that Philips owned an undivided moiety of it, but suppos- ing the entire interest belonged to Houghtailing. Some months before this, Ray had become responsible with Houghtailing on a note given for the benefit of the latter, under an express promise that he (Ray) should be secured. The note was paya- ble on the 1st of January, 1841. On the 16th of September, 1840, Houghtailing turned out his moiety of the wheat to Ray, as security, telling Ray *,nat he would be under the necessity of taking up the note. No writings were entered into, and there was some dispute on the trial whether this transaction amounted to an absolute sale of the wheat to Ray, or a mort- gage. The evidence was quite clear, however, that a mere mortgage, or perhaps a pledge, was intended*. On the 3d of October, 1840, Houghtailiug purchased Philips' moiety of the wheat ; and, on the 5th of the same month, he (Houghtailing) turned out this also to Ray in the same manner as he had done the other, and for the same purpose. Afterwards the sheriff, without having made any new levy, advertised and sold the whole property in the wheat under the ^i. /a., and it was bid in by one Alexander. Both the levy and sale were made under directions from the defendant in the court below, Mr. Birdseye. The evidence was contradictory as to whether or not Ray had 160 CASES IN THE SUPREME COURT. Birdseye c. Ray. knowledge of the fi. fa. when the wheat was turned out to him. The counsel for the defendant requested the court below to instruct the jury that the levy upon the wheat by the sheriff on the' 19th of September, operated as a seizure of the entirety for the purposes of the sale, and that.no new levy was necessa- ry. The court were also requested to instruct the jury that Ray, having taken the wheat as security for a precedent debt, and being a mere mortgagee, was not a boua fide purchaser within the act, (2 R. S. 366, 17,) whether he had notice of ihe fi. fa. or not. The court refused so to instruct the jury, but charged the contrary as to both points. The defendant excepted. Verdict and judgment for the plaintiff, $120, being the value of the entire interest in the wheat. The defendant sued out a writof error. V. Birdseye, plaintiff in error, in pro. per. H. P. Winsor, for the defendant in error. By the Court, NELSON, Ch. J. It is well settled that where a sheriff has seized goods under, one execution, and then anoth- er execution against the same defendant comes to his hands, the seizure under the first enures by way of constructive levy for the benefit of the second. (Cresson v. Stout, 17 John. Rep. 116.) In Russell v. Gibbs, (5 Cowen's Rep. 390,) the doc- trine was applied, though after the first levy and before the receipt of the second execution the goods were removed out of the state, and remained there until the return day of the second execution had passed. The principle is this : The object as well as the effect of an actual levy is, to bring the goods into the possession and under the control of the sheriff, for the double purpose of safe-keeping, and to enable him, by a sale, to apply the proceeds in payment of the debt. After seizure they are in the custody of the Jaw, or of one of its min- isters, until a sale and delivery to the purchaser ; and an actual ALBANY, JANUARY, 1848. 161 Birdaeye t>. Raj. levy under the second execution would therefore be but an idle formality, (a) It is also well settled that, on an execution against one of two partners, joint tenants or tenants in common, the sheriff in levying upon their joint effects seizes, not the mere moiety or share of the defendant in the execution, but the whole of the common interest the corpus of the joint estate thus bringing it under his exclusive dominion and control. (Phil- lips v. Cook, 24 Wend. 389.) The custody of the sheriff ap- pears to be as effectual for all the purposes of a sale, as in the case of a seizure of separate property. He acquires such a special property in the goods, that he can maintain trespass or trover for them against all persons, save, perhaps, the co-part- ner or co-tenant. (Gilb. on Ex. 15 ; Colly, on Part. 474, ed. of 1839 ; Watson on Sheriffs, 182, 191.) It seems to me, therefore, that the ground for applying the principle of a constructive levy as it respects the wheat which Houghtailing purchased after the seizure by the sheriff, is much stronger than in the familiar cases mentioned. There, it results from a prior seizure of the goods by virtue of an inde- pendent execution ; while here, we are only called upon to give effect to a seizure made under the same writ. True, as a general rule, where the sheriff seizes goods owned jointly, on an execution against one of two owners, he can sell no more than the debtor's share. (6) And why 1 Because the goods, though brought under the sheriff's control in virtue of the levy, are held by him subject to the interest of the other owner, whose share cannot be applied in payment of a separate de- mand. But when such share is released to the defendant in the execution, as it was in the present case, there remains no longer any reason for a limited or qualified sale, and it may, I think, be made co-extensive with the levy. Indeed it is doubt- to) See Van Winkle v. VdaU, (1 HOI, 559.) (6) See Waddell v. Cook, (2 Hill, 47, and note (a).) VOL. IV. 21 162 CASES IN THE SUPREME COURT. Birdseye v. Ray. ful if a sale of an undivided interest, after the extinguishment of the shares, would be upheld. This view is confirmed also by the case of Bachurst v. Clink- ard, (1 Show. 173.) There it was held that if the good of two partners be taken in execution against one, and an ex e cu- tion against the other partner be subsequently received by the sheriff, he is bound to hold them seized, one moiety for the execution against one partner, and the other moiety for the exe- cution against the other partner ; and if he return the second writ nulla bona, in such case, he renders himself liable for a false return. ( Watson on Sheriffs, 182, 3 ; Colly, on Part. 474 ; Heydon v. Heydon, 1 Salk. 392.) There may be some doubt upon the remaining branch of the case, whether the transaction between Houghtailing and Ray, in respect to the turning out of the wheat, did not constitute a pledge instead of a mortgage ; but as no point of that kind was raised on the argument, we will assume it to be a mort- gage. The question then is, upon Ray's right to be treated as a bonajide purchaser, within the meaning of 2 R. S. 366, 17. This section is as follows : " The title of any purchaser in good faith, of any goods or chattels, acquired prior to the actual levy of any execution, without notice of such execution being issued, shall not be divested by the fact that such execution had been delivered to an officer to be executed before such purchase was made." At common law the execution bound the goods from the teste, even as against a sale to a bona Jide purchaser ; (Anonymous , Cro. Eliz. 174 ; see also Dudley v . Halsey, Cro. Car. 148 ;) but the statute 29 Car. 2, ch. 3, 16, qualified the rule, so as to render such a sale good if made at any time before the delivery of the writ to the sheriff. Our statute has extended the qualification by giving validity to sales made before actual levy, without notice of the execution. (Butler v. Maynard, 11 Wend. 548.) These enactments, and the statutory provisions against sales made to "hinder, delay, or defraud creditors" &c., (Stat. 13 Eliz., ch. 5, 2 R. S. 1 36, 5, id. 137, 1,) are in pari materia, and should be construed ALBANY, JANUARY, 1843. Birdsoye v. Ray. together. Now it has been repeatedly held, notwithstanding the statutes last mentioned, that a debtor, though in failing cir- cumstances, has the right to give preference to a creditor ; and that he may pay or secure him by the delivery of goods, pend- ing a suit and before any lien attaches, provided the delivery be accompanied with a complete change of possession and there be no actual fraud. (Holbird v. Anderson, 5 T. R. 235 ; Pick- stock v. Lyster, 3 Maule fy Selw. 371 j Grover v. Wakeman, 11 Wend. 187.) It follows, therefore, that a bona fide pre- existing debt constitutes a valuable consideration ; and there can be no doubt that Ray, though a mortgagee, must be deem- ed a purchaser pro tanto within the statute under consideration. {Chapman v. Emery, Cowp. 278 ; White v. Hussey, Prec. in Ch. 13 j Coote on Mort. 355.) The claim of superior equity arising out of the judgment over the simple contract creditor, urged in argument by the plaintiff in error, was also urged in Holbird v. Anderson; but the court answered, that all debts were of equal degree inter vivos, and, of course, equally con- scientious and due to the creditor. The principle of Codding- ton v. Bay, (20 John. Rep. 637,) and of that class of cases, has no application to the present. Assuming what the jury have found, viz. that the debt of Ray, and the transaction be- tween him and Houghtailing as to the turning out of the wheat, were bona fide, the equities of the respective parties here are balanced j and the one first acquiring the legal right is, in such cases, to be preferred. Judgment reversed. 164 CASES IN THE SUPREME COURT. Rockwell v. Rockwell. ROCKWELL and others, ex'rs &c. vs. ROCKWELL. In declaring upon a note for a given sum payable in specific articles at a certain time and place, it is sufficient for the plaintiff to aver that, by reason of the making of the note, the defendant became liable to pay, but had not paid &c., without alleging in terms a non-delivery of the articles. DEMURRER to declaration on a chattel note. The declara- tion was as follows : Betsey Rockwell, George T. Rockwell and Jeremy Rockwell, executors &c. of Jeremy Rockwell de- ceased, plaintiffs in this suit, by &c., complain of Joseph Rock- well, defendant in this suit j for that whereas the said defen- dant, on &c., at &c., made his certain chattel note in writing bearing date &c., and then and there delivered the said note to the said testator in his lifetime, and thereby then and there by the first day of June (then) next, he, the said defendant, promised to pay to the said testator sixty-five dollars in good merchantable hemlock saw-logs, to be delivered at Abner Wait's mill, in the town of Hadley, with interest, value re- ceived, at thirty dollars per hundred. By reason whereof he, the said defendant, became liable to pay to the said testator the said sixty-five dollars in the said note mentioned and the inter- est thereof according to the tenor and effect of the said note. And being so liable &c. [concluding with the usual averment of a promise to pay, and refusal.] General demurrer and joinder , S. J. Coweri) for the defendant, said no sufficient breach of the agreement sued upon was alleged in the declaration. He insisted that the note was, in legal effect, a contract in the disjunctive, importing an obligation on the part of the defen- dant to deliver the logs or pay the money ; and that the decla- ration should therefore have averred the defendant's neglect to deliver, according to the terms of the contract, in order to charge him with the payment of the money. ALBANY, JANUARY, 1848. 165 Rockwell v. Rockwell W. Hay t for the plaintiffs, contended that the breach alleged was sufficient, and amounted in substance to an allegation that the sum mentioned in the note had not been paid either in logs or money. By the Court j NELSON, Ch. J. The objection taken to the declaration is, that the breach alleged is not sufficiently com- prehensive to show a cause of action j that, in order to this, a non-delivery of the logs should have been averred. In Gleason v. Pinney, (5 Cotoen, 152, 411,) the suit was upon a chattel note similar in all respects to the one in this case. It was there held, in substance, by a majority of the court, (see 5 Wend. 393,) to be a contract for the delivery of chattels; and that the measure of damages was, not the sum specified, but the value of the goods agreed to be delivered. Savage, Ch. J. dissented, being of opinion that the sum specified in the note was the debt due in dollars and cents,(a) and the stipulation for the delivery of goods a mere mode of payment. The case was carried to the court for the correction of errors, where the judgment of the supreme court was unanimously reversed. (5 Wend. 393.) Construing the note upon the principle thus settled by the court of errors, the breach alleged in this case is co-extensive with the legal import of the contract. It covers the sense and substance of the obligation as settled by judicial interpretation. The essence of the defendant's liability is, to pay 865 accord- ing to the tenor and effect of the note ; and an averment that it has not been thus paid is consequently an appropriate mode of alleging a breach. The contract, in terms, is to pay the plain tiffs' testator $65 in good, merchantable hemlock saw- logs, and it seems to me a most obvious conclusion, that an allegation of non-payment shows a default with all the certainty required in pleading. Judgment for the plaintiffs. () See Stnens v. Low, (2 Hill, 133.) 166 CASES IN THE SUPREME COURT. White v. Smith. WHITE and others vs. SMITH and others. Though, in an action of assumpsit against several defendants, commenced by dec. laration.in the recorder's court of the city of Buffalo, one of them reside out of the jurisdiction of the court and be not served with the declaration, the plaintiff cannot treat the suit as a mere nullity. A suit having been commenced, and an attorney employed for the defendants, the plaintiff, before receiving notice of retainer, entered a rule to discontinue and commenced a second suit against the defendants for the same cause ; to which they pleaded the pendency of the first suit in abatement : Held, that the plaintiff having omitted to pay the costs of the first suit, the rule for discontinuance was a nullity, and formed no answer to the plea. Had the plaintiff, on receiving the plea in abatement and before replying, paid the costs of the first suit, the payment would have related back to the time the rule for discontinuance was entered, and thus rendered it effectual. Per BRONSON, J. Though the rule entered in such case be, that the plaintiff have leave to discontinue without costs, it will not avail him unless the costs be paid. ERROR to the recorder's court of the city of Buffalo. The action was assumpsit by Smith and others against White and others, and was commenced by capias on the 2d of April, 1841. The defendants pleaded in abatement another action pending foi the same cause, brought by the same plaintiffs against the same defendants in the same court. Replication, taking issue on the plea. On the trial, it appeared that another action for the same cause was commenced against the defendants by the plaintiffs in the recorder's court, by the Sling of a declaration and service of copies upon two of the defendants on the 24th of February, 1841. Stearns, the third defendant, residing out of the county, was not served with a copy of the declaration. On the 25th of February, the two defendants served with the declaration employed an attorney to defend the suit, who gave notice of retainer in that action after the present suit was com- menced and before pleading therein. On the 25th of March, the plaintiffs entered a rule in the common rule-book discon- tinuing the first suit without costs. No notice of this rule ap- peared to have been given. The plaintiffs proved their cause of action, and the recorder decided that they were entitled to ALBANY, JANUARY, 1843. White v. Smith. recover, whereupon the defendants excepted. Verdict and judgment for the plaintiffs. The defendants brought error. D. Tillinghast, for the plaintiffs in error. H. W. Rogers, for the defendants in error. By the Court, BRONSON, J. Although one of the defendants lived out of the jurisdiction of the recorder's court, and was not served with the declaration in the first suit, that action was not a mere nullity, and I do not see how we can avoid revers- ing this judgment. It is settled that a rule to discontinue does not put an end to the suit until the costs are paid. (McKen- ster v. Van Zandt, 1 Wend. 13 j James. \. Delavan, 7 id. 511.) And this is so, although the defendant has only employed an attorney, and no notice of the retainer has been given at the time the rule to discontinue is entered, which was the case here. (Robinson v. Taylor, 12 Wend. 191.) When the plea in abatement in the second suit was received, the plaintiffs should have paid the costs of the first action before replying, and such payment would have related back to the time the rule to discontinue was entered, which was prior to the com- mencement of the second suit. (Brandt v. Peacock, 1 Barn. fy Cress. 649.) This would have avoided the difficulty. But the costs were not paid, and the first suit was consequently pending at the time of replying. Indeed, as the costs have never been paid, that action is pending still. As the rule entered was, that the suit be discontinued with- out costs, it is said that it was conclusive upon the defendants until the rule should be set aside. But the cases to which I have referred show that the plaintiff cannot get rid of an ac- tion he has commenced, by entering an ex parte order to which he is not entitled. The defendant may treat the suit as still pending. Judgment reversed. 168 CASES IN THE SUPREME COURT. Williams v. Keech. WILLIAMS vs. KEECH and others. An action may bo maintained against the trustees of a school district upon any contract of their predecessors in office which the latter were authorized by law to make, e. g., a contract for the wages of a teacher, or for the building of a school house ; and this, whether the defendants have funds in their hands or not. The action, in such case, will not lie against those who made the contract. Per BRONSON, J. Where, in an action for building a school house, it appeared that it was built under a contract for a specified sum, and the defendants gave evidence that the work was improperly performed ; held, not competent for the plaintiff to prove in an- swer that it would have been worth more than the contract price to build tho house in a workmanlike manner. ERROR to the Chenango C. P. The action was originally brought in a justice's court by Williams against Keech, Wilcox and Jaqueth, as trustees of school district No. 7 in the town of Columbus j and the plaintiff declared in assumpsit for work, labor and materials in building a school house for the district. On the trial, it appeared that the work was done under a written contract, dated June 29, 1839, between the plaintiff of the one part, and Allcott, Page and Rowe as trustees, who were in fact at that time the trustees of the district. The plaintiff agreed to have the house completed by the first day of November then next, and the trustees agreed to pay the plain- tiff $150 for the work when the house should be completed. In October, 1839, before the work was finished, the defen- dants were elected trustees of the district, and the trustees who made the contract went out of office. They had previously, on the 18th of July, 1840, paid the plaintiff $138,48 on the contract. The defendants gave evidence to show that the work was not well done. In answer to this, the justice allowed the plaintiff to prove that it would have been worth more than the contract price to build the house in a workmanlike manner. This evidence was objected to by the defendants. The justice gave judgment for the plaintiff for $17,67, besides costs. On ALBANY, JANUARY, 1843. Williams . Keech. certiorari, the common pleas reversed the judgment, and the plain tiff b ought error. Ji. L. Pritchard, for the plaintiff in error. H. 0. Southworth, for the defendants in error. By the Court, BRONSON, J. A doubt was formerly express- ed whether the trustees of a school district could bind their successors by a contract for the payment of money. (Randall v. Hubbardj 1 Cowen, 262, note.) But that decision was un- der the school act of 1819, and it has since been decided that the trustees may bind their successors by a contract for the payment of a teacher's wages. (Silver v. Cummings, 7 Wend. 181.) Under the present statute, if it was not so before, I think district trustees may be sued upon any contract made by their predecessors in office, which they were authorized by law to make. The trustees are a quasi corporation, and they not only may, but should be treated as such when actions are brought against them upon contracts. As to the wages of teachers, the question is already settled, and there is no differ- ence in principle between that case and a contract for building a school house. The wages are to be paid out of the money received from the commissioners, so far as tha will go, and the residue is to be collected by tax. For building a school house, the trustees are to pay out of the funds collected and paid to them for that purpose. (1 R. S. 481, 75, svb. 5.) Those funds are usually raised by tax, and in this case the money was undoubtedly received by the trustees who made the contract. The balance which remained in their hands when they went out of office was to be paid over to their successors. (Id. 486. 98, 99.) There was no pretence on the trial that the defen- dants had not the necessary funds in their hands to pay the balance, if any, which was due to the plaintiff. But whether the defendants had funds or not, I think they were liable to be sued on the valid contract of their predecessors in VOL. IV. 22 170 CASES IN THE SUPREME COURT. Williams v. Keech. office. Provision has been made by law for suits by and against many public officers, including the trustees of school districts. (2 R. S. 473, 4, 92, 96.) When the officer is sued, the suit does not abate by his death, removal or resignation, nor by the expiration of his term of office ; but the name of his successor is to be substituted. (Id. 474, 100.) This ne- cessarily supposes that the successor must answer upon the contract of the officer who went before him. Provision has also been made for levying the money recovered against public offi- cers ; and as to the trustees of school districts, the judgment is to be collected in the same manner as against individuals, and the amount collected is to be allowed to the trustees in their official accounts. (Id. 476, 108.) Under this system, the action not only may, but it must be brought against the per- sons who hold the office at the time the suit is commenced, al- though the contract was made with their predecessors. The trustees who made this contract went out of office before the time for payment arrived. They could not have been sued, and the action was well brought against their successors. But the justice committed a fatal error in allowing the plain- tiff to prove that it would have been worth more than the con- tract price to build the house in a workmanlike manner. The plaintiff was bound by his contract, and when evidence was given to show that he had not faithfully performed the agree- ment, it was no answer to prove that he had made a bad bar- gain. On this ground, the judgment of the justice was prop- erly reversed by the common pleas. Judgment affirmed. ALBANY, JANUARY, 1843. 17 j Fuller t. Van Camp. FULLER vs. VAN GEESEN. A deed executed by a master under a decree of foreclosure in chancery, panes the title to the purchaser at the moment of delivery, though the report of sale be not made and confirmed until sometime afterward. Even if it were otherwise, the subsequent confirmation of the sale would relate back to the delivery of the deed, and thus give it effect from that time as against an intruder into the premises. Per COWEN, J. One who enters upon land under a contract of purchase, but who afterwards fails to make payments according to the contract, and disavows all intent to make them, is as effectually a wrong-doer as if his original entry had been without color of right. Per COWEN, J. A special verdict must find facts ; not the mere evidence of facts. A decree of foreclosure is inoperative by way of estoppel upon one not made a party to the suit, and who entered into possession of the mortgaged premises be- fore the suit was commenced ; nor can he be turned out of possession by an exe- cution on the decree. In ejectment, however, by a purchaser under the decree, against one not a party, the former may use the record of the foreclosure suit by way of deraigning title. The decree cannot be invalidated or questioned, in such case, on the ground of mere error or irregularity. Where the charter of a corporation gave the company power to take mortgages, and then provided that all sales in virtue of them should be made in the county where the property was situated : held, that a decree of foreclosure, though de- scribing the property as being in the county of O., and directing a sale there, whereas it was situated in the county of M., was not impeachable on this ground collaterally ; and that, upon a sale made in pursuance of it, the purchaser ac- quired a good title. The clause in the charter may be satisfied by confining it to a summary foreclo- sure at law ; at all events, even if applicable to a foreclosure in chancery, it is but directory as to that court, and an error in respect to it can only be corrected on appeal. Per Co WEN, J. EJECTMENT, tried at the Monroe circuit, in 1842, before DAYTON, C. Judge. The action was brought to recover pos- session of lots No. 7 and 8 in the 19th section of town No. 4 of the Triangular Tract, situated in Clarkson, Monroe county. A special verdict was rendered finding the following facts, viz. : On the 14th of December, 1833, H. Davis, being seised in fee of the lots in question, mortgaged them to " The Far- 172 CASES IN THE SUPREME COURT. Fuller v. Van Geesen. mers' Fire Insurance and Loan Company," with 480 acres be side, situated in the same town, and 459, T 7 acres situated in Clarendon, Orleans county. By several conveyances the equity of redemption in the lots in question passed from Davis to A. M. Schermerhorn, who took title on the 27th of March, 1835. On the 24th of February, 1840, " The Farmers' Loan and Trust Company," successors of the " The Farmers' Fire Insurance and Loan Company," filed their bill for foreclosure and sale of the mortgaged premises, making A. M. Schermer- horn and divers others parties, but not the defendant in this suit, though he was in possession before the bill was filed. On the 10th of March, 1841, a decree was made directing the whole mortgaged premises mentioned in the bill of complaint, or so much thereof as might be sufficient &c., to be sold in the county where the said mortgaged premises or the greater part thereof were situated. The decree also directed that the master should give a deed to the purchaser &c. ; that such purchaser should be let into possession &c. ; and that any of the parties to the fore- closure suit who might be in possession of the premises so sold &c.j and any person who, since the commencement of said suit, had come into possession under them or either of them, should deliver possession thereof to the purchaser &c. on pro- duction of the master's deed and a certified copy of the order confirming the report of the sale, after such order had become absolute. From the description of the mortgaged premises in the decree, it appeared that the greater part of them was situ- ated in the county of Orleans ; whereas in fact the greater part wap situated in the county of Monroe. The aggregate value of the lands in Orleans, however, was greater than that of the lands in Monroe. The sale was made on the llth of September, 1841, in the county of Orleans, and the premises in question were bid in by the plaintiff, who thereupon paid the purchase money and received a deed from the mas- ter. Shortly after the sale, the plaintiff called on the de- fendant with the master's deed ; and the defendant told him he claimed by contract of purchase made with A. M. Scher- ALBANY, JANUARY, 1843. 173 Fuller v. Van Gecaen. merhoro j that he had not made the payments as they became due to Schermerhorn, and did not mean to pay any thing fur ther. Thereupon, and on the 9th of October, 1841, this suit was commenced. The master's report of sale, however, was not made till the 15th of December following. It was filed on the 12th of January, 1842 j and the same day an order confirming it nisi &c. was entered, which became absolute in eight days thereafter. By the charter of the " The Farmers' Loan and Trust Com- pany" it was provided, that " all sales under the mortgages to be taken or holden by the said corporation &c. shall be made in the county where the said mortgaged property shall be situated." (See Sess. L. of 1822, p. 47, 3, of ch. 50, in con- nection with Sess. L. of 1836, p. 281, ch. 211.) S. L. Selden, for the plaintiff. F. M. Haight, for the defendant. By the Court, COWEN, J. The master's sale passed the title presently ; and the objection that this suit was prematurely brought cannot avail. In England it would have been other- wise, because the deed is there withheld till the final order confirming the sale be made absolute ; but all their cases declare the law as it is now claimed to be by the plaintiff's counsel j viz. that the title vests at the date of the conveyance. (Hoffm. Master, 220, 222 ; Ex parte Manning, 2 P. Wms. 410 ; Blount v. Blount, 2 Jltk. 637.) In Ex parte Minor, (11 Vesey, 559,) mainly relied on by the counsel for the defendant, the difference of practice as to the time of giving the deed appears. The lord chancellor says, " though confirmed as the best pur- chaser, if he had not got the conveyance, he wduld have been entitled to say the estate was not his." Indeed I suspect this is the first time it was ever contended that a regular deed in fee would not pass the title at the time of its delivery. Beside, 174 CASES IN THE SUPREME COURT. Fuller c. Van Geeaen. if it were possible to doubt of such a proposition, all question would be removed by the doctrine of relation. The sale and deed being afterwards confirmed by an order, this related to the date of the deed ; thus overreaching the claim of a mere intru- der into the premises. (Jackson, ex dem. New Loan Officers, $c. v. Bull, 1 John. Cas. 81 ; Jackson, ex dem. De Forest, v. Ramsay, 3 Cowen, 75 ; Jackson, ex dem. Noah, v. Dickenson, 15 John. 309 ; Bissel v. Payn, 20 id. 3 ; Klock v. Cronk- hite, 1 Hill, 107 j Lathrop v. Ferguson, 22 Wend. 116 ; Nel- lis v. Lathrop, id. 121, 122.) If we concede that the defendant came in by contract to purchase of Schermerhorn, the case is not varied ; for the ver- dict finds as strongly and in the same breath, that he had failed to make his payments, and disavowed all intent to make them, though the plaintiff offered to continue the possession to him if he would, and finally to make him a title on the same terms as Schermerhorn had agreed to. This shows him to be as effectually a wrongdoer as if his original entry had been with- out color of right. But the jury have merely stated the evidence of the defen- dant coming in under Schermerhorn. Such evidence must go for nothing. A special verdict must find facts ; not the evi- dence of facts. If it be material, therefore, to either party, that the defendant claimed under Schermerhorn, more should have been found than his mere admissions in conversation with the plaintiff on his demanding possession. The defendant must consequently be regarded, for all purposes, as a mere stranger. The distinction is probably of very little conse- quence ; for not coming in pedente lite, nor being made a party, the decree can have no bearing upon him merely by way of estoppel. He could not be turned out of possession by an exe- cution on the decree. (Kershaw v. Thompson, 4 John. Ch. Rep. 609 ; Valentine v. Teller, Hopk. 422.) Nor can he be regarded as in any degree bound or affected as party or privy. (Haines v. Beach, 3 John. Ch. Rep. 459 ; Watson v. Spence, 20 Wend. 260.) ALBANY, JANUARY, 1843. 175 Fuller v. Van Geeaen. The record in chancery is, however, evidence of its own ex- istence ; and may be received as a muniment of title against the defendant, as well as against any other stranger ; like a judgment on which a sheriff has sold. In this view, I see nothing that the defendant can oppose to the plaintiff. The jury find enough to give him a complete right. They find that the mortgagor being seised in fee, mortgaged to the com- pany, who foreclosed and sold through a master, and the mas- ter conveyed to the plaintiff; Schermerhorn and all other proper parties being brought into court, and the defendant being a mere naked possessor. True, he was in before the bill was filed ; but he had taken no title by which he stands con- nected in any way with the mortgagor, or those claiming under him. No right of his is overreached, because he had none. In Watson v. Spence, the interest of the mortgagor was sold out to third persons before the bill was filed against him. Nothing was left in him to foreclose when the bill was filed ; yet it was against him alone. Here every thing was left in Schermerhorn. The decree and sale operated upon his inter- est. It passed all that to the plaintiff as effectually as if the deed had been under his own hand. In Haines v. Beach, the person claiming to be unprejudiced by the decree, because not made a party, was a subsequent incumbrancer. It is enough, in the case at bar, to say that a foreclosure against the true owner who gives a mortgage, will make a good title in the purchaser as between him and the owner ; a proposition which is very clear. It need not be denied that, had the sale in question been made under a power contained in the mortgage, the auction must have been in the counties respectively where the lands lie. But the provision in the charter does not take away the jurisdiction of the court of chancery. That court proceeds irrespective of any conventional power to foreclose. Even if the provision be regarded as mandatory and restrictive upon that court, it is but directory ; and the most that could have been done by way 176 CASES IN THE SUPREME COURT. Fuller . Van Geesen. of impeaching the decree, was to appeal. The proceeding can- not be enquired into collaterally. The decree binds till it is reversed. The clause in the charter may be satisfied by con- fining it to a summary foreclosure by advertisement. The decree contains, in effect, a direction to sell in the coun- ty of Orleans. It describes the greater part of the mortgaged premises as lying in that county ; and then directs a sale in the county where the greater part lies. The master governed himself by the location appearing on the face of the decree ; in which he was right. The chancellor had power to give the direction. If that direction was irregular or inexpedient, the whole matter would, no doubt, have been set right on Scher- merhorn or either of the other defendants moving the chancel- lor to have it corrected, at any time before the sale was con- firmed. The defendants in the chancery suit are the only per- sons who could ever be heard to complain ; and the day has gone by even for them. Above all, it is not for the defendant, a mere stranger, to come in and raise the objection collaterally. The case may be put in this way : The decree misjudges on a material fact, the location of the land ; and a stranger claims to contradict it by a special verdict. The plaintiff is entitled to judgment on the special verdict, according to the claim of his declaration. Judgment for the plaintiff. ALBANY, JANUARY, 1843. 177 MUn t. Spinola. MILN vs. SPINOLA. A mortgagee of a ship, who has taken possession and caused it to be registered in his own name, will, in general, be liable for supplies famished and repairs made ; and this, though his relation to the ship was unknown to the creditor when the demand arose. ERROR to the New- York C. P. Spinola sued Miln in the court below for supplies furnished to the ship Henry Kneeland, amounting to $146,54. On the 10th of March, 1840, David H. Robertson executed an absolute bill of sale of two thirds of the ship to the defendant ; and on the 10th of April follow- ing, the defendant, on his own oath that he and one Thomas D. Bickford were the only owners of the ship, took out a register in their names. The defendant took immediate possession of the ship, and in November following the supplies in question were furnished, when the ship was about sailing from New- York for Gibraltar. The defendant proved that the bill of sale, though absolute in its terms, was in fact intended as a mortgage security only. The judge charged the jury, in substance, that the mortgagee in possession was answerable for supplies furnish- ed to the ship, and the fact that the plaintiff did not know that the defendant was owner at the time the supplies were furnished would not alter the case, unless the plaintiff had given credit ex- clusively to some one else. The defendant excepted, and, judg- ment having been rendered against him, sued out a writ of error. J. W. White, for the plaintiff in error. A. S. Garr, for the defendant in error. By the Court , BRONSON, J. Although the mortgagee of a ship who has not taken possession cannot be charged as owner ; yet where he is in possession, and has caused the ship to be re-; gistered in his own name, I see no reason why he should not be regarded as owner, and as such, answerable for supplies VOL. IV. 23 178 CASES IN THE SUPREME COURT. Johnson v. Gilbert. furnished, and repairs made upon the ship. (Champlin v. But ler, 18 John. R. 169 ; Tucker v. Bujfington, 15 Mass. R. 477 ; and see 3 Kent's Com. 133 6 ; Abbott on Ship. 17 19, and note (1), p. 19.) In most of the cases where the question has been discussed whether a mortgagee out of possession could be charged as owner, it has been taken for granted that he might be so charged if he had taken possession, and I am not aware of any good reason why such should not be the rule. Although the plaintiff probably expected to get his pay from Robertson when the supplies were furnished, he charged the goods to the ship " and owners," and I think he was at liberty to resort to the defendant. Whether the judge was right dr not in his comments upon the evidence, is a question which cannot be made on a writ of error.. Judgment affirmed. JOHNSON ttt. GILBERT. The statute of frauds relating to promises to answer for the debt, default or mis. carriage of another, (2 JR. S. 135, 2, subd. 2,) applies only where the prom- isor stands in the relation of a surety for some third person who is the principal debtor. Per BRONSON, J. Accordingly, in an action on a written promise to guaranty the payment of a chat- tel note, it appearing that the defendant transferred the note to the plaintiff and made the guaranty in consideration of moneys paid by the plaintiff for the de- fendant at his request ; held, that the promise was valid, though it expressed no consideration. ERROR to the Chenango C. P. Johnson sued Gilbert before a justice of the peace in assumpsit, and recovered $29,27 be- sides costs. The defendant appealed j and on the trial in the C. P., the plaintiff offered to prove the following case. One Eastman made a note as follows : " By the first of September next, for value received, I promise to pay William D. Gilbert [the defendant in this suit] a first rate two horse wagon wood, ALBANY, JANUARY, 1843. Johnson r. Gilbert painted, with the labor of setting the boxes. Guilford, June 15, 1833. (Signed) George Eastman." On the 9th day of October, 1833, the plaintiff, at the defendant's request, paid to one James Sherwood a debt of twenty-five dollars which the defendant owed to Sherwood ; and in consideration of that payment, the defendant transferred the note of Eastman to the plaintiff, and endorsed thereon a guaranty in these words : "I hereby guaranty the payment of this note, which is 825. (Signed) William D. Gilbert." The plaintiff had repeatedly demanded payment from Eastman,, but he had not paid the note. The court decided that the contract was void within the statute of frauds, and nonsuited the plaintiff. He excepted, and, after judgment, brought error. H. Bennett, for the plaintiff in error, cited Leonard v. Vre- denburgh, (8 John. R. 29;) Gold v. Phillips, (10 id. 412;) Myers v. Morse, (15 id. 412;) Olmsted v. Greenly, (18 id. 12 ;) Farley v. Cleveland, (4 Cowen, 432, and 9 id. 639, in er- ror;) Chapin v. Merrill, (4 Wend. 657 ;) Rogers v. Kneeland, (10 id. 218, and 13 id. 114, in error;) Mercein v. Andrews, (10 id. 461.) J\. C. Moses, for the defendant in error, cited 2 R. S. 135, ^ 2 ; Packer v. WUlson, (15 Wend. 343 j) Douglass v. How- land, (24 id. 35.) By the Court, BRONSON, J. If the statute of frauds has any thing to do with this case, the plaintiff cannot recover. The written guaranty neither expresses a consideration, nor can it be inferred from the writing that it was made upon any consid- eration. (2 R. S. 135, $ 2.) But the statute of frauds has nothing to do with the case. That only applies where the per- son making the promise stands in the relation of a surety for some third person who is the principal debtor. This was not an undertaking by the defendant to pay the debt of Eastman ; but it was an agreement to pay his own debt in a particular way. The plaintiff had, upon request, paid a debt of twenty- 180 CASES IN THE SUPREME COURT. Johnson v. Gilbert. five dollars which the defendant owed to Sherwood, and had thus made himself a creditor of the defendant to that amount. If the matter had not been otherwise arranged, the plaintiff might have sued the defendant and recovered as for so much money paid for him upon request. But the plaintiff agreed to accept payment in a different way, to wit, by the transfer of Eastman's note for the wood work of a wagon, with the de- fendant's undertaking that the note should be paid. The de- fendant, instead of promising that he would pay himself, agreed that Eastman should pay. He might do that, whether East- man was his debtor or not ; and the fact that Eastman was a debtor, d.oes not change the character of the defendant's under- taking, and make it a case of suretyship within the statute of frauds. If A. promise B., upon a sufficient consideration moving wholly between them, that a stranger will pay a sum of money or do any other act, this is an original undertaking, and not within the statute; and it makes no difference whether the stranger is under an obligation to do the act or not. If A. sell and deliver his horse to B. upon a promise by the latter that C. will pay a hundred dollars, the agreement is just as obligatory as it would have been had B. promised that he would pay the money himself, and in neither case is a writing essential to the validity of the contract. And if in such a case B. deliver A. the note of C. for one hundred dollars, and agree that the note shall be paid at maturity, or that it may be col- lected by due process of law, it is still an original undertaking, and not within the statute of frauds. But if C. "wishes to ob- tain credit with A., or, being his debtor, desires forbearance, and B. comes in as his surety, there the undertaking of B. is collateral to that of the principal debtor, and the promise must be in writing. The judgment must be reversed; and, in pursuance of a stipulation contained in the case, judgment must be rendered for the plaintiff, instead of awarding a venire de novo. Ordered accordingly. ALBANY, JANUARY, 1843. r. Stebbins. FORMAN and EVANS vs. STEBBINS and BUSH. In an action on a written promise to pay and discharge certain notes, describing them by their dates, amounts, &c. and as having been given by one F. to the plaintiffs ; held, that the possession and production of the promise by the plain tiffs was presumptive evidence of its having been made to them, though no promisee was named in it Held further, that as the notes produced by the plaintiffs on the trial corresponded with those described in the promise, their identity should be presumed, in the absence of evidence to the contrary, and that the plaintiffs need not even prove their execution. ASSUMPSITJ tried before DAYTON, C. Judge, at the Monroe circuit, in April, 1839. The plaintiffs proved and gave in evi- dence a note or undertaking signed by the defendants, as fol- lows : " We, for value rec'd, promise to pay and discharge two two several notes given by John Furey to John Forman and A. G. Evans [the plaintiffs,] one for one hundred and ninety dol- lars payable in one year, and one for the same amount both with interest the last payable in two years and dated fifth January, 1836. Feb'y 16, 1836. (Signed) J. N. Stebbins, H. Bush. Said notes were given for lots No. 79, 87, 111, 112 and 113, in Independence." The plaintiffs' counsel then produced two notes as follows : " $190. Twelve months after date, for value received, I promise to pay John Forman and Albert G. Graves or order one hundred and ninety dollars with interest from this date. Witness my hand and seal this 5th day of January, A. D. 1836. (Signed) John Furey." [L. s.] The second note was in all respects like the first, except that it was payable " twenty-four months after date." Mr. Mumford, the attorney for the plaintiffs, testified that he received the three papers above mentioned enclosed in h letter from Ohio, with direction to collect the amount from the 182 CASES IN THE SUPREME COURT. Forman v. Stebbina. defendants ; and that he applied to Stebbins, one of the defen- dants, for payment, who promised to arrange the same. He had no distinct recollection whether he showed any of the pa- pers to Stebbins. f The judge decided that, to entitle the plaintiffs to recover, they must prove the due execution of the two notes purporting to be made by Furey, or must in some other way identify those notes with the notes described in the undertaking of the defen dants. The plaintiffs were nonsuited, and excepted to the opinion of the judge. They now moved for a new trial on a bill of exceptions. G. H. Mumford, for the plaintiffs. H. Humphrey, for the defendants. By the Court ? BRONSON, J. If the instrument signed by the defendants is not a promissory note, (see Hough v. Gray, 19 Wend. 202, Ketchell v. Burns, 24 id. 456, Leonard v. Ma- son, 1 id. 522,) it is nevertheless valid as a guaranty or other contract to pay the two notes made by Furey. There may be a doubt upon the face of the instrument whether the promise was made to the plaintiffs or to Furey. It is said on behalf of the defendants, that Furey probably sold the lots for which his notes were given to the defendants, and that they thereupon undertook " to pay and discharge," or, in other words, to indem- nify him against the notes. There is undoubtedly some force in this suggestion ; but the case was not put upon that ground at the circuit. The plaintiffs were not nonsuited on the ground that the promise was not made to them, but because they had not proved or identified the notes of Furey. This is a bill of exceptions, and the parties cannot go beyond the point on which the exception rests. But as this question may arise up- on another trial, we think it proper to say, that there was suffi- cient presumptive evidence that the promise was made to the plaintiffs. The written contract is found in their hands and produced by them ; and, in the absence of all proof to the con- ALBANY, JANUARY, 1843. Boyd v. Townsend. trary, the fair inference is that the writing was made and de- livered to them. The defendants by their contract admitted the execution of the two notes of Furey, and it was no more necessary for the plaintiffs to prove the execution of those notes than it would be to prove the hand writing of the maker in an action against the endorser of a. promissory note. The only proper question was, whether the two notes of Furey produced on the trial were the same notes which the defendants had promised to pay. As the notes produced by the plaintiffs corresponded in all respects with the notes described in the contract, ant! as there was no evidence tending to a different conclusion, I think their identity was sufficiently established. The nonsuit must therefore be set aside. New trial granted. BOYD & BOYD vs. TOWNSEND and others. in November, 1838, a contract was entered into between B. of the-tmc part and T. and D. of the other, by which B. agreed to accept and pay drafts drawn by T. to an amount not exceeding $10,000 ; in consideration whereof, T. and D. agreed to deliver to B. 2000 barrels of Sour by the 15th of June, 1839, to be sold for the payment of the drafts, and if the sum received from sales of the flour fell short of what was sufficient to meet the drafts, &c., T. and D. were to pay the defi- ciency. Held, that drafts drawn by T. and made payable after the 15th of June, 1839, were not within the contract Quere, whether the contract embraced any drafts save such as were drawn pay a- ble at sight. The rule that a plaintiff who proves all that is laid in his declaration ought not to be nonsuited even though he fail to make out a cause of action, applies only to cases where the declaration is so defective that a verdict for the plaintiff on any part of it could not be sustained. Stmble. Where issue was taken upon a declaration alleging matters sufficient to make out a right of action, along with others wholly insufficient, and, at the trial, the plaintiff /ailed in sustaining that part of his declaration which was good ; held, though he proved all the rest, he should be nonsuited. ASSUMPSIT, tried at the Seneca circuit, in May, 1842, before MOSELEY, C. Judge. The declaration was special and set forth 184 CASES IN THE SUPREME COURT. Boyd . Townsend. a written contract between the plaintiffs, (James Boyd & Go.,; and the defendants, (Edward S. Townsend, Elias Durfee and two others,) bearing date November 10th, 1838, whereby, in con- sideration of the plaintiffs agreeing to accept and pay the drafts of Edward S. Townsend for a sum not exceeding $10,000, and for the further consideration of one dollar &c., the defendants agreed to deliver to the plaintiffs at their store in the city of New- York, &c. 2000 barrels of superfine flour &c. by the 15th of June then next, to be sold for the payment of said drafts ; and further, that if the sum received from sales of flour should not be sufficient to pay said drafts, with interest &c., the defen- dants would pay the balance. The declaration then alleged that various drafts were drawn on the plaintiffs by Edward S. Townsend, all of which the plaintiffs accepted and paid, viz. : four several drafts drawn in November, 1838, one for $1500, payable June 15th 1839, and the other three for $1500, $1000, and $1000, payable respectively, June 20th, 1839, June 25th, 1839, and July 1st, 1839 ; also two others drawn in Decem- ber, 1838, one for $2000 payable June 10th, 1839, and the other for $5000, payable May 21st, 1839. Some of the counts set forth only the drafts which were payable after the 15th of June, 1839, while others set forth these, together with one of those payable before. The declaration claimed the whole sum guarantied by the contract. Plea, the general issue. At the trial, the drawing and acceptance of the various drafts mentioned in the declaration were proved ; and circumstantial evidence was given tending to show that they were severally paid by the plaintiffs as they fell due. It further appeared by the proof adduced on the part of the plaintiffs, that they had received flour enough from the defendants to meet all the drafts payable before the 15th of June, 1839, but not suf- ficient to meet the $10,000. The circuit judge, being of opinion that drafts payable after that day were not within the contract of guaranty, nonsuited the plaintiffs, who thereupon accepted, and now moved for a new trial on a bill of ex- ceptions. ALBANY, JANUARY, 1843. ]Q5 Boyd t. Townwnd. S. Mathews* for the plaintiffs. Ji. Warden; for the defendants. By the Court) COWEN, J. It is not said in the agreement whether the bills might be drawn on time or not ; but flour enough was to be sent by the 15th of June for the payment of them. It is sufficient to say, with the circuit judge, that a construction which should allow bills on any length of time, however remote, would be unreasonable. The flour was to be furnished for sale by the 15th of June, the avails to be appropriated to the payment of the bills, which we think should not, therefore, have been made payable beyond that day, as all of them were, except the $2000 and 85000 bills. The construc- tion contended for by the plaintiffs would have entitled them to receive the flour, obtain its avails and hold these for any length of time agreed on for the bills between them and E. S. Towns- end". It accords better with the course of commercial business to suppose an intent that the flour should be sold and applied presently, on or before the 15th of June. Had the parties in- tended it to answer bills payable afterwards, they would prob- ably have said so. It is, therefore, as observed by the circuit judge, unnecessa- ry to say whether the contract did or did not confine the par- ties to bills payable on sight. It is sufficient that. they had no right to fix the time beyond the day mentioned for the arrival of the flour. But it is insisted that, as all the bills were set out in the decla- ration, and this claimed that they had been drawn within the con- tract, and they were all proved, the plaintiffs were at least entitled to a verdict, and the appropriate disposition of the question was by motion in arrest of judgment ; not for a nonsuit. Two of the bills were averred and proved to have been properly drawn. These alone were sufficient to support the action pro tanto. The counts, averments and proof as to the others might be rejected, and yet the action be considered as well brought. The matter VOL. IV. 24 J86 CASES IN THE SUPREME. COURT. Boyd . Townsend. shown in defence, or rather the defensive matter proved by the plaintiff, viz. the arrival of flour enough to pay all the defen- dants owed him, was the ground of nonsuit. It is the same as if he had stopped with proving an available demand, and the defendant had then shown a receipt in full or a release. Either would be a good ground of nonsuit. That the plaintiff had alleged and proved something over and -above, his good cause of action, but which was entirely impertinent, would form no answer to the motion. The general rule is laid down in Safford v. Stevens, (2 Wend. 163,) on the authority of Cameron v. Reynolds, (Cowp. 403, 407.) It is, that if the plaintiff, on an issue joined upon his declaration, prove every thing contained in it, the remedy is by arrest. In the latter case, the court granted relief by arrest, though there was also good ground for a nonsuit. The reason given was, that the defendant might have demurred. But the declaration was there bad as a whole. If it be good in part, there is matter for a material issue, and a sound verdict for the plaintiff. This may be limited to the good matter. The plain- tiff then has a legal cause of action on the record. Failing to make it out, the very ground of nonsuit mentioned by the chan- cellor in Safford v. Stevens is laid j viz. that the proof is not sufficient to support the declaration. This rule is satisfied if the evidence be, on the whole, plainly insufficient, whether it be given in support or defeasance of the action ; whether it come from the plaintiff or defendant. (Gregory v. Mack, 3 Hill, 380.) Take a count in slander for instance, which contains different sets of words, some actionable and some not. On an issue, the plaintiff fails to prove any actionable set ; or, if he prove them all, the defendant answers by a clear accord and satisfaction j no one would deny that either the failure or the answer would present a case for nonsuit. New trial denied. ALBANY, JANUARY, 1843. Mann c. The Herkimer County Mutual Insurance Company. MANN w. THE HERKIMER COUNTY MUTUAL INSURANCE COMPANY. In an action by the assignee of a policy of insurance, brought in the name of the insured, quere, whether an allegation of notice of loss Sec. signed by the plain, tiff, will be supported by proof of notice &c. signed by the assignee. The disregarding of variances on the trial of a cause, is, in general, matter resting in discretion, upon which a bill of exceptions will not lie. At common law, the assignee of a policy of insurance cannot sue upon it in his own name. Where, however, the charter of an insurance company provided that, in case of an alienation of the property insured by sale or otherwise, the policy should be void, but that the grantee or alienee, having the policy assigned to him, might have the same ratified and confirmed for his use, by the consent of the company, within thirty days next after such alienation ; and that this should entitle him to all the rights and privileges of tho party originally insured : Held, that a ratification and confirmation pursuant to the charter, gave the assignee the right to eue upon the policy in his own name ; and that no action would lie in the name of tho assignor. Whether, under such a charter, a ratification and confirmation by the company after thirty days from the time of alienation, will render the policy valid, quere. ASSUMPSIT, tried at the Niagara circuit, in March, 1842, be- fore DAYTON, C. Judge. The action was on a fire-policy, da- ted November 25th, 1839, by which the defendants undertook and promised to insure Charles J. Mann, (the nominal plain- tiff,) on goods in his store at Lockport, to the amount of $2000, for the term of five years. The goods having been destroyed by fire, this action was brought for the benefit of one John Wilson, to whom the policy had previously been assigned as hereinafter stated. The defendants' charter (Stat. c/1836, p. 267, $ 3,) adopt- ed the provisions contained in the charter of the Jefferson County Mutual Insurance Company, (id. p. 42,) the seventh section of which is as follows : " When any property insured with this corporation shall be alienated by sale or otherwise, the policy shall thereupon be void, and be surrendered to the directors of said company to be cancelled ; and upon such sur- 188 CASES IN THE SUPREME COURT. Mann t>. The Herkimer County Mutual Insurance Company. render, the assured shall be entitled to receive his deposite notes, upon the payment of his proportion of all losses and expenses that have accrued prior to such surrender : but the grantee or alienee, having the policy assigned to him, may have the same ratified and confirmed to him for his own prop- er use and benefit, upon application to the directors, and with their consent, within thirty days next after such alienation, on giving proper security to the satisfaction of said directors, for such portion of the deposite or premium note as shall remain unpaid ; and by such ratification and confirmation, the party causing such security to be given, shall be entitled to all the rights and privileges, and be subject to all the liabilities, to which the original party to whom the policy issued was enti- tled under this act." The declaration averred an assignment of the policy to John Wilson, and notice of the assignment to the defendants, who manifested their consent in writing by an endorsement on the policy. It was also averred that the plaintiff, at the time of the loss, was interested in the goods insured to the full amoun f of the sum named in the policy j that the loss happened on &c, j that the plaintiff gave notice of the loss &c. ; that an ac count of the loss was afterward made out and signed by the plaintiff, verified by his oath, and furnished to the defendants The case made by the plaintiff at the trial was substantially this : The goods covered by the policy were sold by Mann the insured, to the said Wilson, on the 23d of June, 1840. On the 4th of September following, Mann assigned the policy to Wilson, and, on the 7th of the same month, the defendants en- dorsed upon the policy a written consent to the assignment j Wilson at the same time giving them a new premium note, which they still hold. The fire by which the goods were de- stroyed occurred on the 26th of September, 1840. Wilson thereupon gave notice of the loss to the defendants ; and after- wards made out an account of the same, verified it on oath, and served this upon the defendants. The notice of loss was sign- ed by Wilson, and he made the affidavit verifying the account. ALBANY, JANUARY, 1843. Mann r. The Herkimer County Mutual Insurance Company. Wilson stated in the affidavit that he was sole owner of the goods when they were destroyed. The defendants' counsel, on these papers being offered in evidence, objected that they were not admissible under the declaration j that they were the acts of Wilson, and the declaration described them as the acts of the plaintiff i. e. of Mann. The circuit judge overruled the ob- jection, and the defendants' counsel excepted. The plaintiff gave in evidence a letter written by the secretary of the de- fendants to Wilson, offering to pay for the goods lost on ascer- taining the amount, and suggesting a mode of ascertainment. The letter was dated February 5th, 1841. This was objected to as irrelevant, and because it did not appear that the secreta- ry had authority to write it ; but the objection was overruled, and the defendants' counsel excepted. When the plaintiff rested, the defendants' counsel moved for a nonsuit on the following, among other grounds, viz. : 1. That, by the sale of fhe goods, the policy became and remained void, not having been ratified by the defendants within thirty days thereafter ; 2. That if the policy was not void, the action should have been brought in the name of Wilson. The circuit judge denied the motion, and the defendants' counsel excepted. The jury rendered a verdict for the plaintiff of $1500, and the defendants now moved for a new trial on a bill of exceptions. A. Gardiner, for the defendants. JV*. Hill, Jr. for the plaintiff. By the Court, COWES, J. Admitting that the action was properly brought in Mann's name, and that the policy is valid notwithstanding the sale of the 23d of June, there would per- haps be no serious difficulty in the way of a recovery. The averment of preliminary proofs having been furnished by the plaintiff, and even signed by his name, might possibly be satis- fied, though this is doubtful, by considering Wilson the sub- stantial plaintiff, and therefore within the terms of the aver- 190 CASES IN THE SUPREME COURT, Mann . The Herkimer County Mutual Insurance Company. ment. (Cornell v. Le Roy, 9 Wend. 163, 4, 5.) At any rate, I should think we might overlook the variance as being amend- able. (Mappa v. Pease, 15 id. 672.) The disregarding of variances at the circuit is the subject of discretion, upon which a bill of exceptions will not lie. (Id. 673.) But the action is brought in the name of Mann, although previous to the loss, he had sold the subject of insurance to Wilson, and had assigned the policy to the same person, the latter act having been approved by the company. It is there- fore objected, first, that if any action will lie, it should have been brought in the name of the assignee j but, secondly, that none will lie in the name of any one, the assured having parted with all his interest, and the requisite steps not having been taken to renew the policy conformably to the statute of incorporation. 1. Independently of the 7th section of that statute, the poli- cy, being a mere chose in action, was not assignable at law in any form. (16 Wend. 397 ; 3 Hill, 88 ; 9 Wend. 409 ; 5 id. 200, 203.) But the 7th section declares that though, when the property insured shall be alienated by sale or otherwise the policy shall be void, yet the alienee, having the policy assigned to him, may, notwithstanding, cause it to be ratified for his own use and benefit, by consent of the directors, within thirty days after the alienation, on giving approved security for what may be due on the premium note. It then declares that he shall be entitled to all the rights and privileges &c., to which the assured was entitled. One of these rights is to sue in his own name. Having parted with all his interest both in the subject matter and policy j the company, moreover, which is the debtor, having become a party ; the whole is nearly equivalent to a promise upon a new consideration to pay the amount of any subsequent loss to the assignee. If such a transaction would not give the assignee a right to sue in his own name at common law, and even divest the right any longer to use that of the assignor, yet the words of the statute are, I think, equivalent to an express declaration that the assignee ALBANY, JANUARY, 1843. jgj Mann r. Hie Herkimer County Mutual Insurance Company. may sue in his own name. The demand becomes, both at law and in equity, transferred. The consequence is, that the plaintiff Mann should, in the case before us, have been nonsuited upon the ground that he had ceased to hold the legal interest. (See Granger v. The Howard Insur- ance Co. ofN. Y. y 5 Wend. 200, 203, and Ferris v. The North American Insurance Co. I Hill, 71.) The effect is, perhaps, more correctly expressed by saying, that a ratification and confirmation of the policy for the assignee's own use and bene- fit, in the language of the 7th section, renders it a policy or obligation directly to the assignee himself. He thenceforth claims as the assured ; not as a mere assignee. 2. So far, I have proceeded on the assumption that all the requisite forms for transferring the legal interest were complied with ; and, among other things, that the company had actually ratified the sale within thirty days from the 23d of June ; or afterwards did what was equivalent. There is no pretence, from any direct proof, that the company actually confirmed the policy within the thirty days ; nor indeed could they do so. Such ratification, to be available, must have been founded on the assignment of the policy, which was not made till more than sixty days after the sale. No effectual ratification within the thirty days can therefore be inferred from the letter of the assistant secretary, admitting he had authority to write the letter. It is somewhat difficult to perceive why the thirty days should have been mentioned by the statute as a limitation to which the assignee and underwriters must confine themselves. The statute seems to impose no obligation on the company to renew the policy, though it should be presented, with the as- signment, immediately after the sale. It declares the policy void and subject to cancellation by reason of the sale ; but that, by taking an assignment, the vendee may have a renewal in his own right within thirty days fiom the time of such sale. It struck me, at first, that the time was intended for the benefit of one or both of the parties to the transaction, and that it 192 CASES IN THE SUPREME COURT. Mann v. The Herkimer County Mutual Insurance Company. might therefore be waived, as, in this view, it undoubtedly was, by the act of taking a new premium note from the as- signee, and the written consent of the 7th of September. Had the statute been mandatory upon the company, to confirm upon request within thirty days, they might clearly have waived the restriction ; for the limitation would obviously have been to effectuate their own safety and convenience. Quilibet potest renunciare juri pro se introducto. But that is not so. If the legislature did not mean to allow a departure from the com- mon law rule unless such departure be within thirty days, the restriction must be regarded as one of general policy, incapable of being waived. The law might have provided that a prom- issory note should not be negotiated after thirty days from its date, had the legislature thought fit. In this view, the limita- tion of time forms, as the counsel for the defendants contended, an indispensable condition. It is not necessary, however, to pass upon the question whether there was a legal assignment or not. If there was, we have seen that Mann was an improper party. If not, the policy was avoided by the sale, and no action lies in any form, unless the transactions between Wilson, the assignee, and the company, raised an original obligation of insurance to him in- dependently of the statute. In any view of the case, there must be a new trial. New trial granted. ALBANY, JANUARY, 1843. 193 Miner c. Hoyt MINER vs. HOYT. Under the New-York city mechanics' act, (Sets. L. of '30 p . 412, and Sett. L. '32, p. 181,) the claimant cannot acquire a lien on unliquidated damages which have accrued to the builder by reason of a violation of the contract on the part of the owner ; but the lien is restricted to such funds as arc due or to bccom* due for actual performance. In an action under the above law, the owner is entitled to be allowed for all de- mands he held against the builder at the time the attested account waa served, provided they be such as might have been set off in an action brought by the builder himself. Otherwise, if the set-off be shown to have been created in fraud of the plaintiff's lien. Per Co WEN, J. The plaintiff in such action cannot use the builder as a witness, he being interested. A release to the builder, sufficient to obviate the objection as to his interest, would necessarily extinguish the plaintiff's right of action ; and this, notwithstanding an express declaration in the release that such was not the intent Per COWEX, J. Where a release of this character, however, is given by the plaintiff at the trial, the defendant can only avail himself of the fact by pleading it puis darrein continu- ance. Semble ; per COWEN, J. In general, the assignee of a demand takes subject to every equitable defence exist, ing against it in the hands of the assignor. Per COWEN, J. Semble, that this rule applies even to cases where the assignment is absolute and operates a transfer of the legal as well as equitable interest in the demand. Otherwise, as to bills of exchange and promissory notes, transferred to a bonajide holder. Per COWEN, J. ON error from the New- York common pleas. A. Hoyt sued Miner under the New- York city mechanics' act, (Stat. of 1830, p. 412, and Stat. of 1832, p. 181,) for work done by said Hoyt in building a house, viz. No. 157 Henry-street. The work in question was done for D. Hoyt, the contractor, be- tween the 3d of February, 1839, and the 15th of April follow- ing ; and the attested account of A. Hoyt was served upon Miner on the 29th of April, 1839. The contract between Miner and D. Hoyt was entered into August 1st, 1838, and by its terms the house was to be finished February 1st, 1839 but on the 21st of November, 1838, the parties extended the time for finishing the house to the 25th of . VOL. IV, 25 194 CASES IN THE SUPREME COURT. Miner e. Hoyt. April, 1839. The contract bound Miner to pay D. Hoyt for building the house the sum of $5564,34, as follows : " When the first tier of beams are laid and front and rear walls put up, $500. When the third tier of beams are laid and walls put up, $500. When the roof is tinned and completed, $700. When the scratch coat is on and floors laid, $700. When the brown coat is on, sashes glazed and put in, &c. $700. When the walls, ceilings, cornices and all the hard finish is on, &c. $900, When the window shutters and doors are all hung, &c. $300 j and the balance when the building is all completed." The above sums included the mason work, a part of which was a party wall to be appraised by disinterested persons and paid for by D. H3yt. This was afterwards appraised at $312. The mason work was valued by D. Hoyt and Miner at $3350. One Pierson undertook to do that j and all three agreed that Miner should pay Pierson directly, thus : " When the first tier of beams are on, front and rear up, $300. When the third tier of beams are on and walls up, $300. When the roof is on and tinned, $400. When the scratch coat is on, $400. When browned, $400. When yard finished, $400. The balance when house is finished, $1150." On the 15th of August, 1838, D. Hoyt gave Pierson an order on Miner pursuant to the above arrangement. Pierson assumed the price of the party wall, and gave his note to Miner for it according to the appraisement. The note bore date October 3d, 1838. On the 15th of April, 1839, the building had progressed to that stage when the sixth instalment, specified in the contract between D. Hoyt and Miner, became due, viz. the $900 payment. Some work had been done also towards the seventh payment. The building then took fire and was partially destroyed j whereupon a disa- greement arose between D. Hoyt and Miner, in consequence of which the former ceased to work, and Miner had the build- ing finished by others. Evidence was given tending to show D. Hoyt's readiness to go on and complete the building by the extended time, (25th of April,) and that Miner refused to al- low him to do so. ALBANY, JANUARY, 18 U. 195 Miner v. Hoyt. It was not disputed that, when the fire happened, Miner had paid to D. Hoyt and Pierson the sum of $3770 on the building contract. Miner also claimed to be allowed, either as payment or by way of set-off, the $312 note given by Pierson fox the estimated value of the party wall. He also claimed to have allowed him a due-bill purporting to have been given him by D. Hoyt for $78 money lent, and dated March 30, 1839. On all the points in dispute, D. Hcyt himself was an impor- tant witness for the plaintiff in the court below, A. Hoyt. On his being offered, he was objected to by the defendant, Miner ; whereupon the plaintiff executed a release. The release was of all demands &c. and all personal liability, but declared it to be understood that the release should not operate to prejudice the plaintiff's claim in this suit. The defendant next objected that the release, if operative to any extent, discharged the plaintiff's cause of action j and that, if not, it was insufficient to restore the witness' competency. The court decided that the witness might be sworn. Much testimony was given and various questions raised in the court below, not necessary to be here stated. The court charged, among other things, that if the due-bill for $78 was given upon a mere loan, it could not be allowed the defendant, either as so much paid D. Hoyt, or as a set-off; otherwise, if there had been an agreement between D. Hoyt and the defen- dant that it should apply as payment. The court further in- structed the jury to disallow the defendant's claim in respect to the Pierson note of $312. Exceptions were taken to the charge, and also to the decision admitting D. Hoyt as a witness. Ver- dict and judgment for the plaintiff below j whereupon Miner, the defendant, brought error. C. De Witt) for the plaintiff in error. P. A. Cowdrey, for the defendant in error. By the Court, COWEN, J. Several of the questions addressed to the witnesses appear to have been allowed by the court be- 196 CASES IN THE SUPREME COURT. Miner v. Hoyt. low on the assumption that the plaintiff might fix a lien on the unliquidated damages supposed to be due from the defendant, in consequence of his preventing D. Hoyt's going on after the fire and completing the contract. Perhaps most of them might have been relevant, if such damages can be said to have been in issue. But we think they were not. We are of opinion that the fund contemplated by the statute is confined to what is due or to become due for actual performance by the contractor. (See 3 R. S. 273, 2rf ed., act of 1830 ; and Sess. Laws of 1832, p. 181.) The owner is to retain out of his sub- sequent payments to the contractor ; (act of 1830, 1 ) and the recovery of the plaintiff is " to the extent in value of any balance due by the owner to his contractor under the contract with him" at the time of the notice first given by the plaintiff, " or subsequently accruing to such contractor under the same." It is the balance due, or the balance subsequently accru- ing due. (Id. 4.) The demand must in general be of a na- ture for which an action of debt or indebitatus dssumpsit would lie. At least, it must be due as a consequence of actual per- formance. The claim arising from a refusal to allow perform- ance is of a nature entirely different. There is not in such case any thing due by the owner under the contract. It is de- parted from and violated, for which special damages are to be recovered, unmeasured and even more uncertain in their amount than those in many actions brought for a mere wrong. We are also of opinion that the sum due for money lent from D. Hoyt, the contractor, to the defendant below, and of- fered as a set-off, was improperly excluded. The assignee of a demand takes subject to every equitable defence existing against it while in the hands of the assignor. I shall presently examine whether this may not be considered the rule even in respect to demands, the legal interest whereof is transferred by absolute assignment ; though I admit that promissory notes and bills of exchange are exempt frorr. the rule when sold bona fide, by reason of their peculiar privilege as commercial paper. A proceeding under the statute certainly confers upon the me- ALBANY, JANUARY, 1843. BBJHBT B. Hojt. chanic or material-man no greater rights than those of an abso- lute assignee. The claim to set off the note of $312 against Pierson, stands upon a similar principle. By arrangement between him, D. Hoyt and the defendant, Pierson had, in respect to the mason work, taken the place of Hoyt as contractor. The contract for that work stood between Pierson and the defendant. By arrangement he had, pro tanto, taken the place of Hoyt ; and the equities are to be considered between him and the de- fendant. The question would have been different if the set-oflfe had been created in fraud of the plaintiff's lien ; but there is no pre- tence of that being so. The court below charged, and it is not denied that, by ex- press agreement between the contractor and owner, these mat- ters of set-off might have been applied. The equity is the same, whether there was an agreement or not. It cannot be said, in an equitable sense, that there is a sum due from A. to B. under a contract, when B. owes A. a sum equal to the former. The statute of set-off, as it was worded before the late revisal, spoke of mutual debts only between the immedi- ate parties to the suit ; but it was early held that it compre- hended, in spirit, a debt due to the defendant from the party under whom the plaintiff claimed. True, a balance could not be certified against the plaintiff in the latter case ; but the set- off was received to operate defensively to the extent of the plaintiff's claim. In G'Callaghan v. Sawyer , (5 John. Rep. 118,) the plaintiff was assignee, by endorsement, of a promisso- ry note ; and the note being endorsed after it was due, this court reversed the judgment of the common pleas, because it had excluded from the defence matter of set-off against the payee. Nearly twenty years after, that case was overruled in Johnson v. Bridge, (6 Cowen, 693.) But this decision, though affirmed by the court of errors, was maintained by a tie vote ; (Bridge v. Johnson, 5 Wend. 342 ;) and in Driggsv. Rockwell, (11 id. 504,) it may, I think, be considered as overthrown. 198 CASES IN THE SUPREME COURT. Miner . Hoyt. The late case in the king's bench of Burrough v. Moss, (10 Barn, fy Cress. 558,) agrees with that cited from my reports. It was not decided, however, without much hesitation, and is in turn I think shown to be very questionable in principle, by the learned opinion of Ruffin, Ch. J. in Haywood v. M'Nair, (2 Dev. $* Bat. 283.) But suppose the question to be doubt- ful, where the debt is absolutely assigned j suppose the assignor can evade a legal defence by transferring the debt to another ; there is a feature in the case at bar which brings it within the narrowest ground to which that of Driggs v. Rockwell can be reduced. The judges who delivered opinions in that case, (the chancellor and senator Beardsley,) both agreed that where, notwithstanding the assignment, the assignor still continues the real plaintiff, the set-off is receivable. There the note was as- signed as a collateral security, and the chancellor said the prin- cipal debtor was the real plaintiff. The demand holden by the plaintiff below in the principal case was no more than a collat- eral security for his demand against D. Hoyt. A recovery will, if followed by satisfaction, satisfy the debt of D. Hoyt, as it would have done the principal debt in Driggs v. Rockwell. The chancellor had before expressed a similar opinion in Bridge v. Johnson. The objection to the reception of D. Hoyt as a witness was clearly well founded, unless the release enured as a discharge of the witness ; in which latter view it would be still more fa- tal to the plaintiff's demand. The effect of his failure to show a fund adequate to the payment of his demand, would be to bar the witness, pro tanto, in any suit he might afterwards bring in his own name for the same fund. This suit was liti- gated with full notice to him, which the owner is always bound in such case to give the contractor. (Act of 1830, 2 ; and see Collins v. Ellis, 21 Wend. 405 to 407.) On the other hand, most clearly the debt due from D. Hoyt to the plaintiff was vital to his claim against the defendant. The statute gives it as a consequence of that debt. The claim is a mere incident, like a guaranty. A release of the principal ALBANY, JANUARY, 1848. jgg Miner t. Hoyt necessarily discharges the surety. True, the legal effect of a release may sometimes be qualified. A creditor releasing one of two joint debtors may restrict its operation in such a a way that it shall not discharge both j but there the debt may remain as to one, though gone as to the other, if it be not ac- tually paid. In the principal case, the creditor sought to en- force the collateral security after the principal debt was dis- charged, which is contrary to the nature of things. The case is like a grant of the whole subject matter, declaring that ii shall not operate according to its necessary legal effect. The intent to discharge D. Hoyt is plain on the face of the in- strument ; and words are used entirely adequate to that effect. Suppose a reversioner to give his tenant an absolute deed of bar- gain and sale, proviso that it shall not have the effect to dis- charge the rent ; would either the tenant or his surety for the rent be longer holden ? It seems to me that the weight of the argument lies on this side of the case. It is said the release was given after the action was commenced ; but that does not alter its effect in the abstract, for a debt may be as well released after suit brought as before. Being after issue joined, indeed after the jury were empanneled, it was, I suppose, necessary to plead the release puis darrein continuance. (Chit. PL 658, 9, Jim. ed. of 1840, and books there cited.) Strictly, therefore, the objection perhaps could not avail in form j and it may be conceded that the witness was competent. But for the other reasons mentioned, we are of opinion that the judg- ment should be reversed. Judgment reversed. 200 CASES IN THE SUPREME COURT. Walrath v. Thompson. WALRATH vs. THOMPSON. A written guaranty is to be construed by the same rules and may be explained by the same evidence as other contracts. Per COWEN, J. Where the guaranty was in the form of a letter from the defendant to the plaintiff, thus : " As there was no time set for the payment of your account, and Mr. J thought it would be an accommodation to him to have you wait until &c. ; if that will answer your purpose, I will be surety for the payment" &c. : Held, that the words your account were ambiguous, and that parol evidence was admissi- ble for the purpose of applying them to an account of J. not existing when the letter was written, but contracted afterwards on the faith of it. Had the guaranty related to a precedent account of J. with the plaintiff, it would have been within the statute of frauds, and void for not expressing a consid- eration. Per COWEN, J. Independently of oral explanation, the words of a guaranty must be construed most strongly against the guarantor. Per COWEN, J. AssuMPSiTj tried at the Madison circuit in September, 1841, before GRIDLEY, C. Judge. The case proved at the trial was this : One Johnson, desiring a credit of the plaintiff for some iron castings, applied to him for that purpose in the spring of 1839. A conversation ensued, in which Johnson stated that he would get the defendant's order for them. The plaintiff told him he would enquire as to the defendant's responsibility ; and shortly afterwards Johnson came again and brought a let- ter from the defendant, directed to the plaintiff, in these words : " May 21st, 1839. Mr. D. Walrath, Sir Yours of the 17th, to Mr. Johnson, was shewn me this morning, and as there was no time set for the payment of your account and Mr. Johnson thought it would be an accommoda- tion to him to have you wait until the first of January next, if that will answer your purpose I will be surety for the payment of the money to be paid at that time. Amount, $48,50. Yours with respect, ' D. Thompson." ALBANY, JANUARY, 1848. 01 Walrath r. Thompson. The plaintiff, on the receipt of this letter, delivered castings to Johnson to the amount of about $48,50, and took his note for the same at seven months. Intermediate the date of the letter and the first of January following, Johnson became in- solvent ; and the plaintiff, having waited the time mentioned in the letter, brought this action to enforce the defendant's under- taking. The circuit judge was of opinion that the words your account, in the letter, imported a precedent account, and that the defendant's undertaking was therefore void for not express- ing a sufficient consideration. He accordingly directed a non- suit ; whereupon the plaintiff excepted, and now moved for a new trial on a bill of exceptions. D. Brown, for the plaintiff. J. Watson, for the defendant. By the Court, Co WEN, J. No consideration being directly mentioned in the letter, which (as it is contended) meant a pre*- cedent account, the question is whether it can be sustained, un- der the circumstances, as a valid guaranty consistently with the statute of frauds. It cannot, if the words your account neces- sarily mean a precedent account. If they should be under- stood to mean your account yet to be made, then the letter was in effect a common order for the prospective delivery of goods j and the defendant is clearly liable. I am of opinion that the words are ambiguous, and therefore open to explanation by parol. The words your account may mean either your past or future account ; and from the conduct of the par- ties and other extrinsic facts, no doubt is left which was really intended. In Ilaigh v. Brooks, (10 Molph. if Ellis, 309,) the words addressed to the plaintiffs were, " In consideration of your being in advance to L. in the sum of j10,000, for the purchase of cotton, I do hereby give you my guaranty for that amount on their behalf." It was held, by the exchequer cham- ber, that the guaranty did not necessarily imply a past ad- VOL. IV. 26 202 CASES IN THE SUPREME COURT. Shepard c. Potter. vance j and that the plaintiffs might show on the trial that future advances were contemplated. The case is in point, and I think sustained by the principle of many other decisions. Guaranties must, as we have lately held in several cases, be construed by the same rules and may be explained by the same evidence as other contracts. There is no reason for any distinction. But independently of oral explanation, the words being those of the guarantor, must be taken most strongly against him. I am of opinion that the nonsuit should be set aside, and a new trial granted ; costs to abide the event. New trial granted. SHEPARD vs. POTTER. After the plaintiff has rested his cause, it is in the discretion of the court whether ho shall bo allowed to give further evidence save in reply. What shall be deemed evidence in reply, under such circumstances, considered. The plaintiff, on the trial of a cause, having announced his intention of resting, the defendant moved for a nonsuit ; whereupon the court re-called and interrogated a witness of the plaintiff, and thus drew out a new fact tending against the latter on the leading point in dispute. Held, that the court were bound to hear further testimony on the part of the plaintiff in reply, and that, for their refusal to do BO, error would lie. Whether a plaintiff shall be allowed to depart from the case first established by him, but which he has failed to sustain, and prove a new and incompatible one, is matter resting in the discretion of the court at the trial, upon which error will not lie. See note (a). ON error from the Erie common pleas. Shepard sued Pot- ter before a justice, in trespass for entering the close of the for- mer and cutting and carrying away his wheat. Plea, the general issue. The justice rendered judgment in favor of Shepard for $100, besides costs ; whereupon Potter appealed to the com- mon pleas. On the trial in the latter court, the principal point litigated was, as to the plaintiff's title to the wheat. The wheat ALBANY, JANUARY, 1842 203 Shep&rd t. Potter. was sowed by the plaintiff in the fall of 1839, on a fifteen acre piece of land, part of a farm then in his possession belonging to one Vanderventer. In the spring of 1840, the defendant went into possession of the farm, but whether he acquired pos- session of the fifteen acres or not, was left doubtful upon the evidence. Swartz, one of the plaintiff's witnesses, testified on his cross-examination that, in a conversation between him and the plaintiff, before the defendant moved into the house on the farm, the plaintiff said he would give up the possession of the farm to the defendant ; and that after Vanderventer had forbid- den the plaintiff to harvest the wheat, he (the plaintiff) said he would be willing to harvest it and give the defendant one third. When the plaintiff rested, the defendant moved for a nonsuit, on the ground that the proof showed the defendant in posses- sion of the farm. The court intimated an opinion that the motion should prevail, but re-called the witness Swartz, who, on being further examined by the court, testified, that when the plaintiff said he would give up the possession of the farm to the defendant, nothing was added as to his intent to reserve the wheat. The plaintiff thereupon offered to call witnesses for the purpose of showing that, during the summer of 1840, the defendant had repeatedly declared, on different occasions, that the wheat belonged to the plaintiff. The court refused to hear the witnesses, on the ground that the plaintiff had rested, and thereupon a nonsuit was ordered. The plaintiff excepted, and, after judgment, sued out a writ of error. /. G. Masten, for the plaintiff in error, insisted that the court below erred in refusing to hear the further testimony pro- posed by the plaintiff, notwithstanding he had previously an- nounced his intention of resting. H. K. Vielej for the defendant in error, said this was matter resting in the discretion of the court below, upon which error would not lie. He cited Cowen fy Hill's Notes to Phil. Ev. 711 to 718 j Cowen? s Treat. 992, 2d ed. 204 CASES IN THE SUPREME COURT. Shepard v. Potter. By the Court, COWEN, J. Whether the evidence, when the plaintiff rested, was clearly against him as to his title, may be questionable ; but the court themselves recalled his witness, and made it a degree stronger against him. That was a breaking of the plaintiff's rest. He might have been willing to risk his cause as the proof was when he announced that he should stop ; and the court would then, I think, have been right in not al- lowing him to go into evidence of the defendant's admissions. But their own examination showed an implied confession by the plaintiff of the defendant's title, arising from the omission of the former to assert a reservation of the wheat when he men- tioned giving up the farm to the defendant. This was new evi- dence for the defendant, not before given. To rebut it, or quali- fy its force, the plaintiff offered to prove the defendant's admis- sions of the plaintiff's title. Even supposing his case to have continued closed, it is doubtful whether he had not a right to do so much on the authority of the very books which the de- fendant in error now cites. (Cowen's Treat. 992; Cowen fy HilPs Notes to Phil. Ev. 711 to 718.) It seems to me the evidence was a direct answer to what the court had called out. This was the same in effect as if the defendant him- self had recalled the witness. In Cowen fy HilVs Notes to Phil. Ev., at p. 712, 713, the ne plus ultra of strict- ness is mentioned as exemplified in several cases. But the court below were, I think, still more stringent. The late case of Briggs v. Jlynsworth, (2 Mood. Sf Rob. 168,) seems to give a rule which can be safely and conveniently abided by. The plaintiff in that case proved the defendant to have been, at the time of the alleged wrong, near the place where it was com- mitted. The defendant proved an alibi. Then the plaintiff was allowed to give further proof that the defendant was near the place of the wrong. Again, in Doe, dem. Gosley v. Gos- ley, (id. 243,) the lessor of the plaintiff made out a prima fa- cie case as heir at law. The defendant showed a will taking the lessor's title away. The plaintiff was allowed to show a subsequent will devising the premises to his lessor. This was ALBANY, JANUARY, 1843. 2 Q6 Shcpard . Potter. a contradiction of the defendant's case, the second will being a revocation of the first. But if it be dangerous to interfere on error with discretion exercised below as to the nature of the evidence to be answer- ed, as compared vrith that to be given in reply, it is too strong to say that the plaintiff's case was closed when the new evi- dence was offered. The court took it up and continued it, by examining his own witness. No case gives a discretion to cut off further testimony, if it be pertinent, unless the party be left to the evidence as it stood when he declared his case closed. Without finally saying whether the testimony would have been proper in reply, we think the judgment must be reversed on the ground that the plaintiff's case was open when he offer- ed evidence of the defendant's admissions. Judgment reversed. (a) (a) In Wright v. Henry, (5f. S. Jan. T. 1843,) one question raised was upon the right of a plaintiff, after resting, to make a new case, different from the one with wnich he started. There the plaintiff, on a trial in the common pleas, put in evidence a deed of lands absolute on its face ; and at a subsequent stage of the trial, after resting, he was allowed to prove that the deed was Intended as a mortgage. It clearly appeared, however, that his offer of the deed, fn the first instance, was accompanied by a proposition to show the same fact ; and this the supreme court regarded as a decisive answer to the objection taken. " But, if otherwise," observed Mr. Justice COWEN, who delivered the opinion, " the ques- tion related to a mere point of practice in the court below. Whether a court will, at the trial, allow a departure from the case first established, but which the party has failed to sustain, and admit proof of a new one, though entirely incompatible with the first, is a question resting in discretion. It is not revicwable therefore by writ of error. The courts of original jurisdiction should be left to consult their own convenience upon all questions of this character. If the proposed caw be not in. admissible under the pleadings, a bill of exceptions will not lie." 206 CASES IN THE SUPREME COURT. Bigelow v. Grannis. BIGELOW and others vs. GRANNIS. Where the plaintiff replies to a plea of infancy that the defendant ratified the seve- ral promises &c. after attaining to the age of 21 years, and the defendant re- joins, taking issue upon the allegation, the plaintiff is prima facie entitled to recover upon proof of a new promise, without showing that the defendant was of age at the time of making it. ASSUMPSIT, tried at the Monroe circuit, in April, 1842, before DAYTON, C. Judge. The action was on a promissory note, dated May 6lh. 1838, and payable on the 1st of September then next. The defendant pleaded infancy, and the plaintiffs replied that, af- ter the defendant had attained to the age of 21 years, to wit, on &c., at &c., he ratified and confirmed the several promises &c. The defendant rejoined, taking issue upon the allegation of a new promise. On the trial, evidence was given that soon after the note fell due, the .defendant promised to pay it. The de- fendant's counsel moved for a nonsuit, on the ground that it did not. appear the defendant was of age when the promise was made. The judge denied the motion, and the defendant's coun- sel excepted. The jury found for the plaintiffs, and the defen- dant now moved for a new trial on a bill of exceptions. J. H. Martindale, for the defendant. G. H. Mumfordj for the plaintiffs. By the Court, NELSON, Ch. J. It was enough for the plain- tiffs to prove a new promise, without showing that the defen- dant was of age at the time of making it. It lay upon the de- fendant, who wished to take advantage of it, to prove the fact of infancy. This was decided upon a like issue in Borthwick v. Carruthers, (1 T. R. 648.) New trial denied. ALBANY, JANUARY, 1843. 207 The People e. Hazard. THE PEOPLE vs. HAZARD. % A fine imposed npon a commissioned officer by a regimental or battalion court-mar. tial cannot be collected by an action of debt in the name of the people, but only in the manner pointed oat by 1 R. S. 315, 316, 13 et geq. i. e. under a warrant issued by the president of the court ERROR to the Yates C. P. The district attorney brought an action of debt in the court below in the name of the people of this state against Hazard, to recover a fine imposed upon the latter by a regimental court-martial, for delinquency as captain in the militia. The defendant demnrred to the declaration, on the ground that a fine imposed by a regimental court-mar- tial could only be collected by warrant issued by the presi- dent of such court, and not by suit in the name of the people. The court below gave judgment for the defendant, whereupon the plaintiffs sued out a writ of error. F. M. Haight, for the plaintiffs in error. H. Welles f for the defendant in error. By the Court, NELSON, Ch. J. By the act of 1830 concern- ing the militia service of this state, it is provided that, all courts- martial for the trial of commissioned officers " shall consist of seven officers, any five of whom shall constitute a quorum ; and shall be ordered, if for theUrial of officers above the rank of captain, by the commanding officer of division, and for all other officers, by the commanding officer of brigade." (I R. S. 307, 5.) It is further declared, that regimental and battalion courts-martial shall consist of three members to be appointed by the commandant of the regiment or battalion. (Id. 308, 15.) Power is then given to the latter courts (Id. 309, $ 22,) to impose such fines on all commissioned officers of companies, non-commissioned officers, musicians and privates, as they are 208 CASES IN THE SUPREME COURT. The People e. Hazard. subjected to in the first article of the seventh title of the same chapter. On referring to that article it appears that, through some omission, commissioned officers of companies were not in- cluded in the specification of fines for the delinquencies there enumerated ; the provision being confined to non-commissioned officers, musicians and privates. (Id. 312, 3 7.) Fines imposed by a regimental or battalion court-martial are to be collected by warrant issued by the president j and, when col- lected, are to be paid over to the person by whom the court was appointed, and applied for the benefit of the regiment or battalion. (Id. 315, 316, 1325.) But all penalties and fines imposed by courts-martial upon commissioned officers that is, by division and brigade courts-martial are to be collected by the attorney general or district attorney of the county, and paid into the treasury of the state. (Id. 316, 24.) From these several provisions it is quite obvious, that all fines imposed by regimental courts-martial must be collected, if at all, by the warrant of the president ; as the same statute that authorizes the imposition of the fine, prescribes the mode of collection. (Almy v. Harris , 5 John. R. 175 j Stafford v. Ingersol, 3 Hill, 41.) The act of 1835, (Sess. L. o/>35, p. 350, 21,) amending the third section of the seventh title above mentioned, supplied the omission in the revised statutes, already adverted to, and subjected commissioned officers under the degree of colonel to trial by regimental courts-martial for certain delinquencies; and of course brought the collection of fines imposed upon them within the mode prescribed in respect to other fines imposed by these courts. The provisions of the statute are very spe- cial and express, that all fines imposed by regimental courts- martial shall be collected by warrant, and paid over for the uses of the regiment ; and as the act of 1835 brings under the cognizance of these courts a certain description of delinquen- cies by commissioned officers of companies, it appears to me ALBANY, JANUARY, 1848. 209 The Major &c. of New-York . Nicboku it necessarily follows that the fines must be collected in the same way, and be applied to the same uses. The militia act, even with the amendment of 1835, is not remarkable for perspicuity. I have rarely looked into a stat- ute more confused and contradictory than this, so far as relates to the jurisdiction of regimental courts-martial and the imposi- tion and collection of fines for delinquencies of commissioned officers under the rank of colonel. Judgment affirmed. THE MAYOR &c. OF THE CITY OF NEW- YORK vs. NICHOLS. A city ordinance prohibiting the sale of pressed hay without inspection, and impos- ing a penalty for non-observance, contravenes the provimona o{ I K. S. 574, $ 5 et scq^ and is therefore void. ERROR to the superior court of the city of New-York. The plaintiffs in error sued the defendant in error before one of the assistant justices of the city of New- York to recover the amount of several penalties incurred for the violation of an ordinance of the city relating to the sale of hay, passed May 8th, 1839. The ordinance made it the duty of the inspectors to cause all pressed hay &c. which might be sold or offered for sale in the city of New-York to be inspected and weighed, and the quality and weight thereof to be marked thereon ; and provided that if any person should sell any such hay without having the same inspected and weighed according to the requirements of the ordinance, he should forfeit and pay the sum of $5 for every bundle sold. It appeared that the defendant had sold two bundles of pressed hay in violation of the ordinance, and the justice rendered a judgment for $10 in favor of the plaintiffs. The judgment was reversed by the superior court on certiorari, and the plaintiffs sued out a writ of error. VOL. IV. 27 210 CASES IN THE SUPREME COURT. The Mayor &c. of New-York . Nichols. J. McKeon 3 for the plaintiffs in error. A. L. Jordan, for the defendant in error. By the Court, NELSON, Ch. J. It is provided by statute, that every person who shall put up and press any bundle of hay for market, shall mark or brand, in a legible manner, the initials of his Christian name, and his surname, at full length, and the name of the town in which he resides, on some board or wood attached to the bundle. (1 12. S. 574, 5.) No per- son shall put or conceal in any such bundle of hay, any wet or damaged hay, or other materials, or hay of an inferior quality to that which plainly appears upon the outside of the bundle. (Id. 6.) Any person who shall put up, or cause to be put up and sold, any bundle of pressed hay in violation of the preceding provisions, shall be liable to be prosecuted in an action of debt by the aggrieved party ; and if the court shall be satisfied, from the testimony given, that any of the preceding provisions have been violated, judgment shall be rendered for a penalty of one dollar against the defendant, in favor of the plaintiff, together with such damages as he has suffered thereby, with costs of suit. (Id. 7.) Such hay may be sold without deduction for tare, and by the weights as marked, or any other standard weight that shall be agreed upon between the buyer and seller. (Id. 8.) These provisions obviously authorize a sale of pressed hay without inspection, and the corporation of the city of New- York possesses no power to repeal or supercede them. If they are violated, a remedy is pointed out ; and this, if any, must be resorted to. The system of inspecting hay is abolished by the statute, and, in place of it, the seller is required to prepare the article for market in a particular manner, at the peril of being subjected to the penalties annexed. The eighth section of the revised statutes was amended by the act of 1835, (Sess. L. of '35, p. 280,) so as to allow an in- spection in case the parties desired it j but the provision is not ALBANY, JANUARY, 1843. 211 Suydam . Westfall. obligatory, and the seller may still dispose of his hay without having it inspected if he choose to do so. Judgment affirmed. SUYDAM and others vs. WESTFALL, impleaded &c. Where the drawee of a bill of exchange refuses to accept or pay, the drawer and endorsers are liable to the holder in an action on die bill. After acceptance, the drawee is prima facie the principal debtor, the drawer and endorsers being regarded as mere sureties ; and consequently no action will lio against the latter in the name of the acceptor. Otherwise, where the drawee accepts and pays for the accommodation of the drawers ; in which case he may recover the amount in an action for money paid to their use. If, however, the acceptance be made with knowledge of the fact that one of the drawers signed merely as surety, he will not be liable to the acceptor ; and this, whether the relation between the drawers appear on the face of the bill or not. A drawer, though a surety, may make himself liable to the acceptor of an accom- modation bill ; e. g. by joining with his co-drawers in an express agreement to refund to theacceptor &c. Per COWEN, J. But this liability must be evidenced by a written agreement ; a parol promise would be void by the statute of frauds. Semble ; per COWEN, J. In general, where a person puts his name on negotiable paper, he will be deemed to have bound himself only according to the import of what he writes, and can. not be subjected to a different obligation by parol evidence. Per COWE.V, J. S., a commission merchant n the city of New-York, agreed to accept drafts of N. to the amount of $20,000, taking a bond and mortgage from him for twice that sum as security ; and it was further agreed that all produce shipped to New-York by N. should be sent to S. for sale on commission, that the latter should thus be kept in funds to meet his acceptances as they became due, and that he should be entitled to two and a half per cent, commission on all advance* or acceptances met otherwise than with produce. N.'s drafts were afterwards ac- cepted and paid by S. to an amount exceeding the value of the product con- signed ; and he charged N. with interest on all sums thus paid, together with two and a half per cent, commission on acceptances not met with produce. Held, in an action by S. to recover the sum advanced upon one of the drafts, that the transaction was not necessarily usurious ; especially as it appeared that 212 CASES IN THE SUPREME COURT. Suydam . Westfall. the charge for commission was customary among merchants engaged in similar business. COWEN, J. dissented. Various English and American cases relating to usurious loans of credit, &c cited and commented on. Per COWEN, J. ASSUMPSIT, tried at the New-York circuit, in February, 1842, before KENT, C. Judge. The action was by Suydam, Sage and others, commission merchants in the city of New-York, against Norton, Bartle & McNeil, merchants and millers at D ' * Phelps, Ontario county, and Albert Westfall. The plaintiffs claimed to recover the amount of a bill of exchange alleged to have been paid by them to the use of the defendants. The bill was in these words : "Phelps, July 1st, 1839. Messrs. Suydam, 'Sage & Co. Four months after date, please pay to the order of C. A. Cook, Esq, cash'r one thousand dollars, for value received, and charge to the acc't of Your ob't serv'ts, Norton, Bartle & McNeil, Albert Westfall." Westfall was the only defendant vrho pleadetl. On the trial, the case was this : At various times during the years 1838 and 1839 the plaintiffs received on consignment a large quantity of flour, whiskey &c., from Norton, Bartle & McNeil, and ac- cepted their drafts on account of such consignments. The draft or bill of exchange in question was accepted and paid on the 4tb of November, 1839. The plaintiffs made acceptances to a large amount beyond the value of the goods consigned to them ; and their account current, which was proved to be cor- rect, showed a balance due them on the 1st of January, 1840, of $41,911,95. This account contained charges for interest on actual advances, and a commission of two and a half per cent, on acceptances not met with produce. The dealings be- tween the parties were carried on under an ajgreement signed by the plaintiffs, as follows : " Memorandum of an agreement ALBANY, JANUARY, 1843. 213 Suydam t. WertfidL made the 22d February, 1838, between Norton, Bartle &, McNeil, of the town of Phelps, and Suydam, Sage &. Co. of the city of New-York. Whereas it is proposed that the said Suydam, Sage & Co. shall come under acceptances for the said Norton, Bartle & McNeil, for the security of which they have placed in the hands of the said S. S. & Co. a certain bond and mortgage, it is mutually understood and agreed that the amount of liabilities that Suydam, Sage & Co. shall be under at any time for said Norton, Bartle & McNeil, shall not exceed the sum of $20,000. It is also mutually understood and agreed, that all the produce sent to New-York by Norton, Bartle & McNeil, except lumber, shall be sent to Suydam, Sage & Co. for sale on commission ; that they shall at all times be put in funds for their liabilities by the time they become due ; and that they shall be entitled to 2 per cent, commission on all acceptances or advances met otherwise than with produce. It is understood that Suydam, Sage &. Co. are to accept at all times to the amount of $20,000; that flour and other produce in their hands shall be considered as money at the market prices unless limited or ordered held for higher prices. It is also further agreed, that at the expiration of each and every year, all the liabilities and advances of the* said Suydam, Sage & Co. for Norton, Bartle & McNeil shall be paid up, and the account balanced by the said Norton, Bartle & McNeil.'' The bond and mortgage mentioned in the agreement were exe- cuted to the plaintiffs by Bartle and McNeil, conditioned for the payment of $40,000, and bore date on the 12lh of February, 1838. On the 1st of July, 1839, the bill in question was present- ed to the Bank of Geneva by one of the firm of Norton, Bartle & McNeil, and at the same time a letter of credit was handed to the cashier, Mr. Cook j on receiving which, the bill was dis- counted. The letter was in these words : " New-York, June 20th, 1839. C. A. Cook, Esq. Messrs. Norton, Bartle & McNeil are hereby authorized to draw upon us at four months to the amount of $5000 the 214 CASES IN THE SUPREME COURT. Suydara ..Westfall. drafts to be undersigned by such persons as you consider per- fectly, responsible, and to be drawn within the next thirty days. Suydam, Sage & Co." This letter was sent by the plaintiffs to Norton, Bar tie & McNeil ; and the cashier of the bank testified that the money was advanced on the letter of credit. The witness further stated that, when banks want security on a draft, the usual course is to require an endorser. It further appeared that the defendant Westfall was a farmer residing some three or four miles from Norton, Bartle & McNeil, with whom he had no business connection whatever. The mortgaged premises were shown to be worth $20,000 on a sale upon credit. Several commission merchants testified that it was the established cus- tom to charge the same commissions on acceptances met other- wise than with produce^ as is charged on sales of property ; viz. two and a half per cent. They said the custom was to charge commissions on the whole amount of acceptances in case they exceeded the proceeds of the property ; and, by way of illustration, stated, that if the commission merchant accepted for $2000, and the drawer consigned property to the acceptoi- the proceeds of which were $1500, two and a half per cent, was charged on the amount of the sales, and the like per cent- age on the balance of the drafts after deducting the proceeds of the sales. It further appeared that, when the bill in ques- tion was accepted, the plaintiffs were under acceptances to more than $20,000 over and above all property and proceeds in their hands belonging to Norton, Bartle & McNeil. The circuit judge charged, that a drawer of an accommoda- tion bill was, in general, liable to refund to the drawee who accepted and paid it without funds ; and that he saw nothing in the evidence to take the case out of the general rule. He also instructed the jury that if they believed the charge of two and a half per cent, was a bonajide^ usual and reasonable com- pensation for trouble, and warranted by the usage of the trade, the transaction was not usurious ; but if they were of opinion ALBANY, JANUARY, IMS. 215 Suvdam t. WeatfdL that it was a device to evade the statute against usury, they should find for the defendants. The counsel for the defendant \Vcstfall excepted to the judge's charge. The jury rendered a verdict for the plaintiffs, and the defendant Westfall now moved for a new trial on a bill of exceptions. A. Worden, for the defendant Westfall. D. (rrcig) for the plaintiffs. "COWEN, J. This is an action for money paid, laid out and expended for the defendants, on the ground that they have overdrawn upon the plaintiffs. The latter acted, for some time during the years 1838 and 1839, as commission merchants for, and lenders of their credit to, the defendants Norton, Bartle & McNeil, who placed in their hands a bond and mortgage for $40,000, and stipubted to furnish produce for sale on commission ; both together constituting, with the per- sonal security of Norton, Bartle & McNiel, a fund on which the loans were to be made as their occasions might require The mode of advancing was by bills of exchange to be drawn on the plaintiffs and accepted and paid by them. The bills were accordingly drawn by Norton, Bartle & McNeil, with the addition to their names of some undersigner as surety. In June, 1839, the plaintiffs sent to the Geneva bank a special letter of credit in favor of Norton, Bartle & McNeil, by which the former proposed to accept for 85000 on bills to that amount, if undersigned by persons v.-hom the bank should con- sider responsible. Under this letter, and on its credit, the par- ticular bill in question was issued, discounted by the bank, and accepted and paid by the plaintiffs, the defendant Westfall un- dersigning as surety. The loan was in fact to Norton, Bartle & McNeil not to Westfall. The account was made by them, the charges booked against them, and the moneys paid to their account at the bank. All the evidence that we have of the extent to which Westfall intended to become bound as 216 CASES IN THE SUPREME COURT, Suydam v. Westfall. surety, arises from his simple act of undersigning. That he knew or ever heard of the letter, upon the credit of which Cook discounted the bill in question, we have no evidence. He was a farmer residing within a few miles of the borrowers, and undersigned for them on their request. The legal effect of thus drawing was, that, on the plaintiffs refusing to accept or pay, Westfall would be liable to the holder in a suit upon the bill itself; but never to the drawees. Nothing is better settled than that, on a bill of exchange, the acceptors are primarily liable as principals, and the drawers and endorsers collaterally, as a sort of sureties. I speak of the transaction per se. Ko doubt the acceptors of bills and makers of notes may be mere lenders of their paper. It is every day's practice that they be- come so by accepting accommodation paper ; but this is not indicated by the paper itself. It arises from matter extrinsic an agreement by which the ostensible relations of the parties are subverted. The principal thereby becomes a surety ; and such was the case here as between the plaintiffs and Norton, Bartle & McNeil. It is not to be denied that the relation may be thus changed by the mere fact of overdrawing, where the drawers come for their own benefit. They obtain money in this way which, ex equo et ftono, they ought to refund ; and such is the fact and the law of this case as against Norton, Bartle & McNeil. They acted with knowledge, and the money was advanced to them. Far different as to Westfall. JVon constat that he was at all made acquainted with the basis on which the parties interested did their business ; nor is it proba- ble that he was. The transactions between them seem to have been founded on the elements that too commonly enter into the credit system, viz. fictitious or colorable funds of the imme- diate parties, and credulity on the side of the public. No doubt Westfall might have made himself jointly liable with Norton, Bartle & McNeil for these advances. He might have joined them in an express agreement as guarantor to refund the plain- tiffs ; he might have joined them in a counter acceptance or in making a promissory note for the amount. I rather think his ALBANY, JANUARY, 1848. 217 Suydam t>. Wcrtfall. liability should be shown in writing. It is collateral, and, if not written, would be open to objection upon the statute of frauds. Take it that Westfall knew Norton, Bartle & Mc- Neil to have been overdrawing, and expressly promised by parol to be their surety, the promise would perhaps be void by the statute of frauds. Suppose him to have seen the letter of credit before he joined them in drawing ; upon what construc- tion could we say that he intended to become liable as surety to the drawees'? His act, to say the least, would be equivocal ; and we have often held of late that where a man puts his name in a position to be charged as endorser on negotiable paper, he cannot be changed into a guarantor by reason of privity to be shown by facts aliunde ; in other words, that, when a man puts his name on negotiable paper, he shall be taken to have bound himself according to the import of what he writes, and cannot, by parol, be subjected to an ulterior obligation. If he puts his name as endorser, he is an endorser only ; if as drawer, it would seem to follow that he shall be holden as drawer only by an action on the paper itself. We do not allow the violence of first subverting the intent, and then the statute of frauds, in order to substitute a mere implied for a written promise. We have refused to force a guaranty upon a man when he has told us by his contract that he means something less. But it is not necessary in the instance before us to declare that a drawer, though a surety, with such privity as to know that he is over- drawing, can escape an implied engagement as guarantor. Here was no privity. It was the simple act of Westfall putting his name to a bill as surety drawer. What does he say ? Pre- cisely what an endorser says : " I will pay on default of the principal, and due notice." Pay whom ? The holder ; not surely the drawees who accept, and thereby acknowledge themselves in funds. They would rather be liable to him or his principals ; and if they pay, they do so as in duty bound. They have taken upon themselves the character of principals ; and when they call upon him to refund, they make a call be- yond his undertaking. He may answer, nan h&c in ftedcra VOL. IV. 28 218 CASES IN THE SUPREME COURT. Suydam v. Westfall. veni. A holder showing him to be a drawer, can make him liable as such j but to the acceptors he never came under any express engagement. They knew that he put his name to the bill as surety ; and had no reason to suppose he intended more than to give the bill additional strength and currency at the bank. If they overpaid Norton, Bartle & McNeil, it was more than he knew they erer intended to do, or ever told him of. He never promised and never could promise, therefore, to re- fund them, either in writing or by parol ; nor will the law im- ply an obligation to repay moneys which a man never received. It seems to me that in such a case there are no materials out of which a guaranty can be made. I forbear however to pur- sue this point since our decision in Griffith v. Reed, (21 Wend. 502,) from which the present cannot be distinguished. It was said in argument that there, Reed was a surety on the face of the bill ; and it is true that Westfall has not appended the word surety to his name. It is somewhat strange that these plaintiffs should ask us to act upon such a distinction. Both they and the bank knew just as well the relation in which Westfall actually stood, as if he had called himself surety ; and the plaintiffs have treated him throughout as a mere surety. The only thing material in the distinction is stated by Mr. Jus- tice Bronson in Griffith v. Reed, viz : " When it does not ap- pear on the face of the paper that the party is a surety, notice of the character in which he contracted must of course be brought home to the holder before he can be affected by it." The object is, that the party acting on the credit of the name should not be imposed upon by the false or equivocal position which it occupies. What difference could it have made to these plaintiffs if Westfall had called himself surety 1 They knew that he was no more ; and he had been procured to come in as such by their own request to Norton, Bartle & McNeil. Had they intended to claim against him as a guarantor of the loan, it behoved them at least to tell him that his principals were drawing on a fictitious fund, and to take his express en- gagement to make it good pro tanto. ALBANY, JANUAKY, 1848. Suydam t>. WertfiUL Having reached the conclusion that the transaction was not of a nature to raise an implied promise by Westfall, the case might properly be disposed of without going into the question of usury. There are reasons, however, why, in this case, the question should not be entirely overlooked. This suit is said to be the pioneer of many which are in contemplation against others occupying the same position as Westfall. The question has been well argued, and, for aught I know, may yet become material to the ulterior disposition of this case, should it be re- tried. No man is entitled to take more than at the rate of seven per cent, per annum for the loan or forbearance of his moneys, goods or things in action ; nor can he adopt any indirect meth- od or device by which more shall be obtained ; and all con- tracts and arrangements by which, directly or indirectly, an attempt is made to secure more than that, are void. (1 R. S. 760, 2d ed.) A loan of credit at a higher rate is one instance j e. g. a loan of acceptances, (Kent v. Lowen, 1 Camp. 177,) notes, (Dunham v. Dey, 3 John. R. 40, Dunham \. Gould. 16 id. 367, Fanning v. Dunham, 5 John. Ch. R. 122,) or en- dorsements. (Fanning v. Dunham, id. 122, 134 j Steele v. Whipple, 21 Wend. 103.) Speaking in Fanning \. Dunham, Chancellor Kent said : " Instead of being a cash advance, it was a loan of his credit to the plaintiff, and attended with the same risk and trouble as if he had loaned the cash." " In every case in which a note was for four months, forinstance, two and half per cent, commissions was more than at the rate of seven per cent., and consequently usurious." That is the exact case of the acceptance in question. Looking at the loan of credit eo nomine, the law allows no exception. If the party accept- ing be at the same time retained either generally or specially to do a distinct business, he may be paid for that the accus- tomed charges ; but nothing more on account of the loan. (Com. on Usury, 134.) Thus, a country banker loaning his own notes, may take the actual difference of exchange foi drawing on his funds at the place which forms the standard of 220 CASES IN THE SUPREME COURT. Suydam v. WcstfalJ. exchange. This is a distinct business remitting and making good the loan at a distant place. It is the same as if a third per- son should take the loan in exchange for a bill on the same place. The cases of Hammett v. Yea, (1 Bos. fy Pull. 144,) and Master- man v. Cowrie, (3 Camp. 488,) need scarcely be mentioned. In the latter, the whole seems to have been resolvable into work, labor and expense of the plaintiffs, who were bankers, in fixing out a fund on which they could accept for a stranger, without any mention or idea of ever advancing any money or charging interest. For all this they charged a small per centage of 5s. Lord Ellenborough said, "If there be a stipulation for more than five per cent, on a contemplated advance, the agree- ment is usurious ;" though he mentions a possible right to a commission even upon a discount, founded in the collateral ex- pense of procuring specie, keeping clerks and a counting- house, on purpose to accept and pay bills with funds provided by the person for whom the business is done. But it is clear that if such charges be allowed at all, they are predicable of bankers only. (Vid. per Spencer, J. 13 John. R. 47; Kent, chancellor, 16 id. 374, 5 ; 7 John. Ch. R. 78, 79 ; Ex parte Jones, 17 Vesey, 332 ; Baynes v. Fry, 15 id. 120 ; Carstairs v. Stein, 4 Maule $ Selw. 192; Sussex Bank v. Baldwin, 2 Harris. JV. J. Rep. 487, 497, 505.) Ex parte Henson, (1 Mad. Rep. 112,) was the case of a bill broker, and might have been right for the expense of collecting which he usually paid in London. (Jluriol v. Thomas, 2 T. R. 52 ; Campbell v. Shields, 6 Leigh, 517 ; Kent v. Phelps, 2 Day, 483.) Beyond that, it would be more questionable if it had not been the mere dis- count of a bill in payment of a precedent debt. In Nourse v. Prime, (7 John. Ch. R. 69, 76,) the work and labor were easily separable. The charge and allowance was for stock-brokerage merely. The case of a factor receiving a per centage for his work and labor, and, where he acts on a del credere commission, adding a per centage for guarantying the price of the goods sold on account of his principal, is quite familiar. No one ever thought ALBANY, JANUARY, 1843. Suydam t. WeotfrlL of impeaching such addition as usurious. ( Vid. M*CullocN Diet, of Commerce^ " Factor."} He is frequently involved in the execution of very extensive and important trusts, beside in- curring heavy and undefined responsibilities. So long as his compensation has a strict reference to his duties and responsi- bilities as factor, it is no more usurious than a compensation to any other servant. It is the case of Palmer v. Baker ^ (1 Maude, (f Selw. 56,) where bankers were allowed to take a like com- pensation for trouble in executing a long trust, it appearing that it had no connection with their advances of money. I have met with no English case which allows a factor to take a commission on his acceptances or advances as such, over and above the legal rate of interest. The case of Trotter v. Cur- tis, (19 John. R. 160,) would seem, on one construction, to go the length of allowing both a premium on acceptances and in- terest on consequent advances, the principal having stipulated to keep his factor in funds by consignments equal to his accept- ances ; and it is said, the parties here acted upon that case. But there was no previous stipulation there to pay the commission. The principal had disappointed his factor, who had subsequent- ly charged the commission which the defendant had allowed to him in a course of account for a series of years. The learn- ed chief justice professedly acted on the principle of Palmer v. Baker. He said : " The judges placed their determination of the cause on the enquiry, whether the reservation was a motive for the advance of the money. If it was, they pro- nounced it usurious ; but if it were referable to trouble only, then they pronounced the transaction a fair one." He could not mean trouble in advancing the money ; for, as I have no- ticed, that case went entirely on labor in executing the trust. This labor consisted in clearing an extensive tract of land, and selling and converting the timber into money a labor of two or three years. In the case at bar, the acceptances were made under a previous agreement for the commission ; the reserva- tion was a motive for the acceptances. In Trotter v. Curtis, there was some room to intend that the trouble was not the 222 CASES IN THE SUPREME COURT. Suydara a. Westfall. mere advance of the money ; while here, the plaintiffs have de- clared in writing that it was. There is, moreover, another fea- ture which distinguishes this case from that, very widely. The future advances were, by agreement, to be made by the plaintiffs, not in their exclusive character of factors or commission mer- chants, but also on an exchange of credit, as in Dunham v. Ley, (13 John. Rep. 40,) and Dunham v. Gould, (16 id. 367.) The plaintiffs took a mortgage from two of the defendants, Bar- tie and McNeil, with a bond to secure $40,000, on the credit of which they agreed to accept to the extentof $20,000 ; Norton, Bartle & McNeil also agreeing to keep them good by consign- ments of produce to that amount as the pay days of accep- tances came round. This was, in terms, a loan of the plain- tiffs' credit at two and a half per cent, over and above their claim for interest on the actual advances ultimately to be made. The cross securities were no more than cross notes or cross ac- ceptances ; and a loan of credit on such terms wag, in the cases of Dunham v. Dey and Dunham v. Gould, expressly held to be usurious. De Forest v. Strong, (8 Conn. Rep. 513,) strikes me as a misapplication of Trotter v. Curtis. If not, I admit it would go far to sustain the present transaction were anoth- er circumstance out of it. In the case at bar, no one can doubt that the arrangement was with a view to loans or dis- counts at the bank. It was a device to raise money there, by first paying the discount at the bank, and two and a half per cent, in addition, to the acceptors. The whole affair took that direction. The limitation to $20,000 and the consignments to meet it, were utterly disregarded. The contract itself looked to a deficiency in produce, and in a little more than one year a bal- ance of acceptances was swelled up to more than $40,000. No one can for a moment suppose that this was a regular commis sion business. Admitting that a facior may take an extra pre- mium on his advances, which I do not, yet he must show that he acted strictly within the line of his agency. The whole must be an unmixed commission business, and the advances made on that basis. The usage given in evidence seems to me ALBANY, JANUARY, 1843. 223 Suvdam t>. Weetfall. entirely inapplicable, as much so as the usage in Dunham v. Dey and Dunham v. Gould. I see nothing to distinguish the case from Kent v. Lowen, (1 Camp. 177,) wherein Lord Ellenborough told the jury that they were, if they believed th two and a half per cent, was taken on exchange of securities, bound to find usury. At least, I think the charge should have been as strong as in the case of Dunham v. Dey. Platt, J. there told the jury, that if they believed the transaction to have been for the purpose of raising money at a greater rate of in- terest than seven per cent, per annum, which they were war- ranted to infer, then such intention made it intrinsically a loan. and the transaction was usurious and void. I assume that the bill in question was drawn under the agree- ment of the plaintiffs, because this was assumed at the trial, and the case put to the jury on the usage of commission merchants. There was certainly a term in the contract between the parties, by which Norton, Bartle & McNeil might have avoided the effect of the stipulation to pay the two and a half per cent. I allude to the condition that the commission was to be payable only on acceptances or advances made otherwise than with produce. By making very early and perfectly ade- quate consignments, thus keeping the plaintiffs clearly in funds from the proceeds, equal to their acceptances and advances, the extra charge might have been put out of the question. Looking, however, at the nature of the fund, and the practical disregard of that condition by both parties, there is scarcely any ground for saying that either of them considered the con- dition as any thing more than nominal. Drafts and accept- ances continued to a very large amount over and above actual consignments, and the original stipulation expressly provided for such a consequence. There is no pretence for saying that the transaction is like a contract to pay extra interest by w;iy of penalty for default of paying a specific debt at an appointed day; nor was the point made at the trial. Sueh stipulations are, at best, not to be received with much favor. (Com. on Usury, 80, 81 - f P/owd. on Usury, 85.) They have been held 224 CASES IN THE SUPREME COURT. Ketchum v. Barber. innocent and even obligatory, when inserted for the obvious purpose of securing prompt payment j but never, I believe, when their violation has been expressly, or by secret under- standing, looked to by the parties : nor, especially, where they have gone forward increasing the debt upon which the extra allowance was to be made, after the condition has been violat- ed. The strongest cases of this kind in favor of the creditor are, I think, Campbell v. Shields, (6 Leigh, 517, 519 to 522,) and the cases there cited. On the whole, I think the plaintiffs cannot effectually claim protection against the imputation of usury, from any of the adjudged cases. NELSON, Ch. J. and BRONSON, J. were of opinion that, on the question of. usury, the case of Trotter v. Curtis, (19 John. 160,) was decisive in favor of the plaintiffs. In other respects, however, they concurred with COWEN, J. New trial granted. KETCHUM vs. BARBER and others. The bonafide sale of one's credit by way of guaranty or endorsement, though for a compensation exceeding the lawful rate of interest, is not usurious, if the transac tion be unconnected with a loan between the parties. Per NELSON, Ch. J. If connected with a loan, the transaction will be deemed usurious, unless the excess beyond legal interest be fairly ascribable to trouble and expense actually and bona fide incurred in and about the business of the loan. Per NELSON, Ch. J. In such cases, it is in general a question for the jury whether the excess, by what, ever name the parties may have called it, was really taken as a compensation for trouble and expense incurred in good faith, or was mere usury in disguise. Per NELSON, Ch. J. M., being desirous of raising money upon a note at four months, drawn by himself and endorsed for his accommodation by B. and L., authorized a broker to buy an additional name or guaranty for the purpose of getting the note discounted. Application was accordingly made to K., also a broker, who endorsed the note on receiving a conuniorion of two and a half or three per cent., and it was then ALBANY, JANUARY, 1843. 2 25 Ketchum t>. Barber. discounted at a bank. About the time it fell due, M. made another note, corns, ponding in amount, which, after being endorsed, was discounted by K., and the proceeds applied in payment of the first The second note not being met at ma- turity, K. brought an action upon it against the maker and endorsers, which was referred, and the referee reported in K.'s favor. Held, on motion to set aside to* report, that the taking of the commission by K. did not render the transaction per se usurious, and the motion was therefore denied. COWEX, J. dissented, holding that the transaction between K. and M., in respect to the first note, was not a sale in any sense, but amounted to a usurious loan of K.'s credit ; and the note in question having come to his hands by way of fur. ther security, or extension of the loan, it was void. The case of Sttele v. Whipple, (21 Wend. 103,) commented on and explained, and Kent v. Lowen, (1 Camp. 177,) overruled. Various other English and American cases, relating to indirect usurious loans, cited and reviewed. Per NELSON, Ch. J. and COWEN, J. A notarial certificate stating that notice of protest wot served Ate. by putting th same in the post office, directed &.C., is a sufficient compliance with the statute, (2 R. S. 212, 46, 2d ed.) though it do not expressly state by vsJum the service was made. Since the act of 1835, (Sens. L. of '35, p. 152,) the certificate need not specify the reputed place of residence of the party notified, nor the post office nearest thereto. MOTION to set aside the report of a referee. The action was against the maker and endorsers of two promissory notes in these words : $1000. New-York, Oct. 10th, 1840. Four months after date, I promise to pay the order of Josiah Barber and A. D. Leonard, one thousand dollars at the Union Bank, for value received. (Signed) Robert Muir. (Endorsed) Josiah Barber, A. D. Leonard, Auburn, N. Y." $2000. New-York, Oct. 12th, 1840. Four months after date, I promise to pay the order of Josiah Barber and A. D. Leonard, two thousand dollars, for value received, at the Union Bank in this city. (Signed) Robert Muir. (Endorsed) Josiah Barber, A. D. Leonard, Auburn, N. Y." VOL. TV. 29 226 CASES IN THE SUPREME COURT. Ketchum . Barber. On the hearing before the referee, the plaintiff, after proving the genuineness of the notes and endorsements, and that the de- fendants resided at Auburn when the notes fell due, gave in evidence two notarial certificates, each stating that notice of protest &c. was served on Josiah Barber by putting the same in the post office directed to him at Auburn, and that a like notice was also served on A. D. Leonard by putting the same in the post office directed to Auburn " according to directions on note." The defendants' counsel objected that the evidence of notice to the endorsers was insufficient, because, 1. The cer- tificates did not state that the notices were put into the post office by the notary, nor by whom they were put in ; and 2. The certificates did not state that Auburn was the reputed place of residence of the endorsers, nor the post office nearest thereto. The objection was overruled. The defendants claimed that the notes were void for usury , and, in respect to this branch of the case, the following facts appeared : In June, 1840, Muir made two notes one for $2000 and the other for $1000 payable at four months, and procured them to be endorsed for his accommodation by Barber and Leonard. They were then presented by Muir to one Burr, a broker in the city of New- York, with a view to raise money on them. Burr said it would be necessary to have the notes endorsed by a person residing in the city ; whereupon Muir authorized him to "buy a name or guaranty." Applicatio i was accordingly made by Burr to a firm of brokers of whic i the plaintiff was a member, who agreed to make the endorse- ments for two and a half or three per cent. These terms w ere acceded to by Burr, and the endorsements made on payment of the per centage. One of the notes was discounted by the Union Bank, of which the plaintiff was a director, and the other by some other bank in the city of New-York. A fter de- ducting the sum paid for the endorsements and his own charges, Burr paid the balance of the proceeds of the notes to Muir About the time these fell due, Muir made two other notes (the notes in question) and left them with Burr to be vliscounted, ALBANY, JANUARY, 1843. 227 Kctchum v. Barber. directing the avails to be applied to the payment of the first notes. They were accordingly discounted by the plaintiff's firm, with full knowledge of the circumstances, and the proceeds applied as directed by Muir. The referee reported in favor of the plaintiff for the amount of the two notes, with interest. He concluded his report by saying that, upon a fair construction of the testimony, the first transaction was, in his opinion, the mere sale of endorsements, or, in other words, the giving of a conditional guaranty of the payment of the notes for which the plaintiff received a stipu- lated compensation ; and that there was no loan of money or of choses in action within the meaning of the statute of usury. W. T. Warden , for the defendants. 5. Beardsley, for the plaintiff. NELSON, Ch. J. Our statute against usury, (1 R. S. 760, 2d ed.) provides, that the rate of interest upon the loan or forbearance of any money, goods or things in action, shall continue to be seven dollars upon the hundred ; ( 1 j) that no person or corporation shall, directly or indirectly, take or re- ceive in money, goods or things in action, or in any other way, any greater sum or greater value, for the loan or forbearance &c. ; (^ 2 ;) and that all bonds, bills, notes &c., and all other contracts or securities whatsoever &c., whereby there shall be reserved or taken, or secured or agreed to be reserved or taken, any greater sum or greater value for the loan &c. than as be- fore prescribed, shall be void. (^ 5.) It has been repeatedly decided under this act, which is ta- ken, substantially, from the statute of Anne, that, in order to make a transaction usurious, there must be a loan of " money, goods or things in action," (to use the words of our statute,) and an agreement to take more than legal interest for the for- bearance ; or some device contrived for the purpose of evading or concealing the appearance of a loan, when in truth it was such. The authorities are full to this effect. (Loyd Y. WU- 228 CASES IN THE SUPREME COURT. Ketchum . Barber. Hams, 3 Wils. 261 ; Barclay v. Walmsley, 4 EasJ, 55 ; Lloyd v. Scotf , 4 Peters, 205 ; Cfo'% on Bills, 100, .tfwi. ed. o/ 1839 ; Comyn on Usury, 156 ; Ord on Usury, 24.) It is not usury, therefore, for an acceptor to discount for a premium his own acceptance due at a future day, for this is not a loan, but an anticipation of payment ; (Barclay v. Walmsley, & East, 55 ;) nor is the bonafide sale of a bill for a less sum than the amount payable upon its face, usurious. (Ex parte Lee, 1 P. Williams, 782 ; King v. Ridge, 4 Price, 50 j Stoveld v. Eade, 4 Bing. 81 ; Cram v. Hendricks, 7 Wend. 569.) And a contract, made at the time of sale, to pay more than legal interest on the purchase money of an estate bonajlde sold, has been decided not to be usu- rious. (Beete v. Bidgood, 7 Earn. $ Cress. 453 j 1 Man. <$ Ryl- 143, S. C. ; Doe v. Brown, Holt's JV. P. C. 295.) So, of a sale of goods at three months credit, with a stipulation that, in case the money be not paid, the Vendee shall allow a half pen- ny an ounce per month till the debt is discharged ; provided the transaction be a bonafide sale. (Floyer v. Edwards, Cowp. 1 12.) In all these cases, however, if the transaction be a mere de- vice to cover and conceal a loan at unlawful interest, it then comes within the statute. But whether there was such a de- vice a corrupt intention to evade the law is a question of fact for the jury to determine upon a consideration of all the surrounding circumstances. (Hammett v. Yea, 1 Bos. $ Pull. 153 ; Hutchinson v. Piper, 4 Taunt. 810 ; Lee v. Cass, 1 id. 511 ; Masterman v. Cowrie, 3 Campb* 488 ; Com. qn Usury, 123 to 138, and the cases there cited.) Applying this test to the present case, I am unable to see how we can declare, as matter of law, after the finding of the referee, that the transac- tion is within the statute. We see there was no loan between the parties ; and that, so far as respects the plaintiff's connec- tion with the first notes, he merely sold the guaranty of his firm. There was no application for a loan ; and the referee has expressly found that none was directly or indirectly made. In short, the dealing between the parties was in fact just what ALBANY, JANUARY, 1843. 229 Kctchum t>. Barber. it purports to have been, viz. a stipulated compensation for the guaranty of the plaintiff's firm. The case is therefore narrowed down to the question wheth- er a bona fide sale of one's credit or security for the use and benefit of another, unconnected with a loan, is, per se, usu- rious. Assuming, as we must, that there was no l#an, the transac- tion does not fall within those decisions which have now firmly established that bankers and merchants may, in addition to lawful interest on the discount of bills and notes, take a rea- sonable commission by way of compensation for trouble and expense ; provided such commission be not intended as a de- vice to cover a usurious loan. (Jluriol v. Thomas^ 2 T. R. 52, and Winch v. Fenn y in note Hammett v. Yea, 1 Bos. $ Pull. 144 ; Brooke v. Middleton, 1 Campb. 445 j Masterman T. Cowrie, 3 id. 488 ; Baynes v. Fry, 15 Ves. 120 ; Carstairs v. Stein, 4 Maule Sf Selw. 192 Chit, on Bills, 100 to 105, Jim. ed. of 1839.) The cases upon this subject may therefore be laid out of view, as having no direct application to the question before us. The case of Kent v. Lowen, (1 Campb. 177,) is a direct au- thority in favor of the defendants. Lord Ellenborough there held a bill of exchange void for usury, on the ground that the accommodation acceptor, through whom the plaintiff claimed title, had charged a commission over and above lawful interest. He said, country bankers had been allowed to take, besides le- gal interest, a certain commission for trouble and expense j but th-.it was in discounting, not for accepting bills. This case was, in effect, overruled by the same learned judge five years afterwards, in Masterman v. Cowrie, (3 Campb. 488,) where be held, that an agreement by a London banker to accept and pay bills of exchange drawn in the country for a certain com- mission, he to be furnished with funds to pay the bills before they became due, could not be usurious, there being no con- templation of an advance of money ; and that if an advance had been contemplated, it would have presented a question of 230 CASES IN THE SUPREME COURT. Ketchura v. Barber. fact, whether the commission was a shift to obtain more than legal interest for the forbearance, or a compensation for trouble and expense incurred in accepting and paying the bills. There is another feature in Masterman v. Cowrie, which is ap- plicable to the case before us. After the parties had dealt to- gether for some time, the plaintiff expressed himself dissatisfied with the manner in which the bills were drawn, and requested that they should be drawn for the future by some respectable person in the country. It was then agreed that, if the plain- tiff would procure such a person, he should be allowed one shilling per cent, for his trouble in drawing the bills. M., a country banker, assented to the proposition, drew the future bills, and received the commission. Lord Ellenborough said " The only question arising out of the one shilling allowed to the drawer is, whether that was a color for usury. If it was bonajide applied to M.'s use, it cannot be usurious." In Lee v. Cass, (1 Taunt. 511,) there was a loan of money, and the lender made it a condition that he should receive, in addition to lawful interest, three and a half per cent, for guar- antying the payment of the bill by the acceptors. There was no doubt, upon the evidence, as to the solvency of the accep- tors ; and the jury found, that the charge was a device to get more than legal interest. The counsel in that case conceded, however, if I understand them aright, that had there been no loan, and the transaction a bona fide guaranty, it would not have been chargeable with usury. Indeed, Mr. Chitty lays down the following proposition as derivable from that case : " So a charge for guaranteeing the payment of bills when un- connected with any loan, by the party making it, is not usu- rious ;" (Chitty on Bills, 101, Am. ed. of 1839 ; see also Chitty, Jr. 100, m. ;) and a similar principle is asserted by Eyre, Ch. J. in Hammett v. Yea, (1 Bos. $ Pull. 153.) In Stoveld v. Eade, (4 Bing. 81,) one Upton having a bill of .2500, payable in two months, which he could not readily negotiate in London, requested the plaintiff to give him in ex- change a bill on his London banker payable at the same time, ALBANY, JANUARY, 1843. 231 Ketchum c. Barber. which he did, deducting 16/. 10*. for trouble &c. This was held by the whole court not to be usury. Best, Ch. J., after stating the case, observed : " The plaintiff consents to accom- modate him, [Upton,] but demands something for the trouble and risk. If he had required more than 5 per cent., it might have been thought that the exchange was only colorable, and that the real design was to exact usurious interest ; but as less than 5 per cent, was taken, and the transaction was evidently fbr the accommodafion of Upton, there is no pretence for call- ing it a loan, or for contending that it falls within the provis- ions of the statutes against usury." In Carstairs v. Stein, (4 Maule fy Selw. 192,) it was held, that an agreement for a commission of one half per cent, for accepting and negotiating bills, is not, per se, usurious ; but that it presents a question for the jury, depending upon whether the commission may be ascribed to a reasonable remuneration for trouble and expense, or whether it be a mere color for the pay- ment of interest above 5 per cent, upon a loan of money. The court said : " All commissions, where a loan of money exists, must be ascribed to and considered as an excess beyond legal interest, unless as far as it is ascribable to trouble and expense bonafide incurred &c. ; but whether any thing, and how much, is justly ascribable to this latter account, is always a question for the jury, who must, upon a view of all the facts, exercise a sound judgment thereupon." The case of Dunham v. Dey, (13 John. R. 40,) in this court, is in perfect harmony with the current of English au- thority. There, the plaintiff exchanged notes with M. & W. Ward, to the amount of $9000, for which he charged two and a half per cent. The Wards were indebted to the plaintilf at the time in the sum of $4000, and, being pressed for payment, made application for the exchange. The judge charged the jury that, if they believed the transaction to have been for the purpose of raising money at a greater rate of interest than seven per cent., such intention made it intrinsically a loan, and the transaction was usurious and void. The jury found for the de- 232 CASES IN THE SUPREME COURT. Kctchum v. Barber. fendant. Spencer, J. in delivering the opinion of the court, referred with approbation to the case of Floyer v. Edwards, (Cowp. 112,) quoting the language of Lord Mansfield, who, he said, had laid down the rule with much perspicuity and force, thus : " it (the question) depends, principally, on the contract being a loan ; and the statute uses the words l directly or indi- rectly ;' therefore, in all questions, in whatever respect repug- nant to the statute, we must get at the nature and substance of the transaction j the view of the parties must be ascertained, to satisfy the court that there is a loan and borrowing, and that the substance was to borrow on the one part, and to lend on the other ; and where the real truth is a loan of money, the wit of man cannot find a shift to take it out of the statute." Spencer, J. then added, that if the evidence before the jury exhibited a case of borrowing on the one part and lending on the other, at a greater rate of interest than seven per cent., and this entered into the concoction of the bargain, the transaction was undoubtedly usurious and the notes contaminated by it and void. The learned judge also referred to the usage among en- dorsers of bills of exchange, and sureties on custom house bonds, to take a per centage for advancing their responsibilities, observing : " I see nothing improper in this j there is no loan of money, directly or indirectly, in either of these cases ; they come neither within the terms or mischiefs of the statute, and they are innocent transactions." The case was afterwards taken to the court for the correction of errors, (16 John. R. 367,) where the judgment of the supreme court was affirmed. Chan- cellor Kent said, that the commission received by the plaintiff exceeded the legal rate of interest upon four notes of the plain- tiff, supposing them to have been intended as a loan of so much cash ; and the question was, whether the commission was not another name for interest taken on a loan of credit, instead of a loan of cash ; that the jury had found the exchange of the notes was for the purpose of raising money at a greater rate of interest than seven per cent. ; that this fact established, be- yond all contradiction, the charge of usury ; and that, if such ALBANY, JANUARY, 1843. 233 Kctchum v. Barber. was the object of the parties, (and the jury had so found it,) then it was a shift or contrivance to get rid of the statute of usury. In a case between the same parties, (2 John. Ch. R. 182,) arising out of the same course of dealing, where Dunham had taken by way of commission, upon an exchange of notes, a sum less than the rate of lawful interest, Chancellor Kent treated it as a loan of his redit or security to the Wards. " They were enabled," he said, " to raise money by discount on the notes of the defendant, (Dunham,) as being of better credit in the market than their own ; and if the defendant had not taken any commission for the transaction, he would have had nothing for his risk and trouble. If he had taken more than at the rate of seven per cent, for the amount of his notes for the time they had to run, it would probably have been usury in disguise." This view, it will be seen, agrees with that tak^n by the court in Stoveld v. Eade, (4 Bing. 81,) before referred to. The two cases differ in this : In Stoveld v. Eade there was no ground for supposing that a loan was intended j whereas, in the case before the chancellor, there were many circumstan- ces tending to that conclusion. Best, Ch. J. observed, in Sto- veld v. Eade, that if the plaintiff " had required more than 5 per cent., it might have been thought the exchange was only colorable, and that the real design was to exact usurious in- terest ;" and then, according to the settled course of decision in England, the court would have been bound to put the question to the jury. The case before Chancellor Kent bein^r in equi ty, it was within the province of the court itself to determine whether the transaction was a device to get more than legal interest ; and the chancellor intimates that, if more had been taken, under the circumstances of that case he should have found it " usury in disguise." He did so find in Fanning v. Dunham, (5 John. Ch. R. 122,) where more than legal interest was exacted under the cover of a charge for commission. The decision was put upon the ground that the transaction was in effect a loan, and so intended, and the whole a contrivance to VOL. IV. 30 234 CASES IN THE SUPREME COURT. Ketchum t. Barber. get over seven per cent. (See also Nourse v. Prime, 7 John. Ch. R. 78, 79.) From this review of the cases in our own and the English counts, we may, I think, safely conclude, 1. That a guaranty of paper, unconnected with a loan, and really and bonajide in- tended to be what it purports on its face, viz. a security for payment whatever other objections may be made to the trans- action is not obnoxious to the imputation of usury, even if a commission of more than legal interest be agreed upon and taken for the same j 2. That if connected ancj mixed up with a loan, tnd a commission exceeding the legal rate of interest be taken, it will be considered an excess of interest, and, therefore, the transaction usurious and void, unless the excess appear to "have been intended as a compensation for trouble and expense ionafide incurred in the business, which, in England, is usually one quarter per cent, j and 3. That whether the transaction was intended as a device and contrivance for the purpose of disguising a loan and enabling the guarantor to exact interest exceeding seven per cent., is a question of fact to be determined by the jury upon a consideration of all the circumstances. The case of -Steele y. Whipple^ (21 Wend. 103,) was cited on. the argument, and principally relied on by the counsel for the defendants. The course of reasoning of the learned justice who delivered the opinion in that case, undoubtedly goes far to sustain the defence here. I think the case was rightly de- cided, and that it was put on its true ground in the directions given in awarding the new trial ; which were, that the jury should be told the note of Jackson was usurious in the hands of Dutcher. From the time I first heard the case, I never doubted that Dutcher was, in truth, the lender of the money , This was the irresistible conclusion from the facts. He, in fact, took the note and advanced the money, but attempted to prove that he had procured the money by negotiating the note, and for that reason had taken the exorbitant premium ; all which, in my judgment, was negatived on the face of the transaction. I do not deny that the case stands near, the line ALBANY, JANUARY, 1843. 235 Kctchum v. Barber. which divides two well settled classes of cases ; one adjudging a transaction to be usurious per se, and the other, that it is not, but so fraught with suspicion of usury in disguise and in in- tent, that a jury may find it. The case itself, however, does not necessarily affirm any principle at variance with the doc- trine of the one in hand. It is said, if a per centage exceeding legal interest be allow- ed in the case of a guaranty, a ready way is opened to evade the statute. But this may also be said in respect to dealings in any other commodity e. g. in goods, stocks, annuities, notes, bills &c yet no one would think of declaring every sale of this description of property or credit to be within the act, for fear it might be the cover of a usurious loan. Nor was the statute made or expected to remedy every species of exac- tion. An extravagant charge for a guaranty, purely as such, is no more usury within the sense and meaning of the law, than if exacted or given for any article of comnerce. The price of a note, bill or bond, bought in the market, is but so much given for the credit of a name ; and this is an every day trans- action. Neither are the chances all on one side j as was exem- plified in the case of Oakley v. Boorman, (21 Wend. 588.) There, on receiving a premium of $190, Oakley guarantied by endorsement, notes to an amount exceeding $7000, which had about six months to run, and, in a few weeks afterwards, the maker failed. Oakley sought to reduce his liability down to the $190, but was charged with the whole demand. Mr. Jus- tice Cowen, who delivered the opinion, likens the case of a gua antor to that of an insurer which, no doubt, in principle, it very much resembles and observes that, "no matter how great the risk taken, nor how small the premium ; or on the other side, how enormous the premium or slight the hazard, if the contract be fair." " It is not," he says, " for us to hamper Mr. Oakley or any other citizen, in such a way as to preclude his making money by insuring the debts of his neighbors. It is enough that he has not been imposed upon." He further re- marked : " There is no distinction, in principle, between an 236 CASES IN THE SUPREME COURT. Ketchum v. Barber. endorsement to secure future advances, and an endorsement to secure a precedent debt." I agree to all this, and will merely say that, as Oakley would, on taking up the note, have had his remedy over against the maker, if he had not failed ; so here, the plaintiff is entitled to the like remedy, having been obliged to advance his money, and take up the note he had guarantied. I do not think a case to the contrary can be found in the English books, except Kent v. Lowen, decided by Ld. Ellen- borough at nisi prius in 1808. That case is doubted by Mr Chitty, (Chitty on Bills, 103, note (o), Jim. ed. of '39,) con- fined by Mr. Comyn to a mere acceptance, (Comyn on Usury, 134,) and has been disregarded by Ld. Ellenborough himself. I think it stands opposed to the whole current of English and American authority. I am of opinion, therefore, that the motion to set aside the report of the referee should be denied. BRONSON, J. It cannot, I think, be denied that our usury statutes have been greatly shaken by the decision of the court for the correction of errors in Rapelye v. Anderson, made in December last.(a) And although that case was not like the one now before us in its circumstances, it was, at the least, as plain a case of usury as this is ; and on that ground I concur in the opinion that the report of the referee should not be disturbed. COWEN, J. The notary's certificates say, without qualifica- tion, that the notices were served by putting the same into the post office. The 2 R. S. 212, 2d ed., 46, simply requires a certificate of the service of notice. It is a sufficient compliance to say positively that the service was made, specifying the mode. Such language imports that the notary made the ser- vice himself, or knew that it was made. He need not state by whom the business was done. (o) See this, among the cases decided by the court for the correction of error*. post ALBANY, JANUARY, 1843 237 Kctchum v. Barber. The same statute requires, it is true, that the certificate should ilso specify the party's reputed place of residence, and the post office nearest to it ; and the certificates in question do not in this respect accord with the requisition. But the provision is modified by the, statute of April 23d, 1835. (Sess. L. o/'35, 152.) The latter act declares, that it shall be sufficient if the no- tice (when by mail) be directed to the city or town where the person sought to be charged resided at the time of endorsing, &c. unless at the time of affixing his signature, &c. he shall, in addition thereto, specify on the note &c. the post office to which he may require the notice to be addressed. No specification of any post office was added by either of these endorsers. Their place of residence at the time was added ; and it appears by evidence aliunde. The certificate may of course be altered in its language, so as to follow the new provision. Here, the certificates state that the notices were directed to Auburn ; in one branch adding, " according to directions on note." The certificates, taken in connection with the endorsements and the fact of residence as proved, are, I think, sufficient to satisfy the provisions of the amendatory act. A more material question, however, is, whether the claim of the plaintiff can be sustained on the merits. The notes in ques- tion were discounted by the plaintiff's firm with a view to take up the two notes of the same amount which he had endorsed for his firm, then lying in the bank, and being about to mature. These two notes were taken up by the avails of the discount j thus virtually bringing the notes in question into the place of the others as renewal notes. They seem to have been consid- ered by all parties as a substitute for or continuation of the two notes which the plaintiff endorsed for the premium ; and were go considered by the referee. Being thus connected, their Talidity depends upon the same question as would that of tb first two notes, had they been discounted by the plaintiff, or come into his hands by the act of taking them back from the bank as an endorser. That was accordingly the question upon which the referee passed. 238 CASES IN THE SUPREME COURT, Ketchum . Barber. The original notes were made for the purpose of raising money at the banks in New- York. This the plain'tiff under- stood. Burr retained him to endorse in order to give the notes currency at the bank ; and one of them was discounted at the Union Bank, of which it seems the plaintiff was a director. For endorsing he charged a premium of two and a half or three per cent. ; and by whatever name the transaction may be char- acterized, it had all the effect upon Muir, the debtor, of very oppressive usury. The loan was clogged by way of premium and discount with a charge at the rate of fourteen and a half to sixteen per cent, per annum, according as the premium for en- dorsing was two and a half or three per cent. Had the plaintiff himself discounted the notes at that rate, all the cases concur that they would have been void in his hands for usury. (Com. on Usury, 122 Lowes v. Mazzarcdo, 1 Stark. Rep. 385 ; JicklanA v. Pierce, 2 Camp. 599.) Does it make any difference that he comes in to effect the same thing indirectly 1 that he endorses the original notes, and discounts the renewal ? In either form he received interest for his money at the same rate as the defendant paid it. He first receives at the rate of seven and a half or nine per cent, per annum, with- out parting with a cent of his money. He loans it to another during the four months the first notes had to run ; and in the end, whether he is put to pay the original notes or not, his $3000 are at more than double the lawful interest. He takec more for his endorsement than the bank could for the actual discount ; and, in the meantime, lends his money to or discounts for another at two and a third per cent., calls back the actual loan at the end of the four months, and redeems his endorse- ment at the bank by paying the principal. I speak of him as a lender, who will not let his $3000 lie idle. The transaction scarcely varies in form from an original discount at the double interest. *By endorsing, he puts himself in the position of a holder. At the end of the four months he takes the notes in his original capacity. He is, in the language of the cases, remitted to his rights, and may sue all the parties as if he ALBANY, JANUARY, 1848. 39 Ketchum r. Barber. had never parted with the note ; first striking out his own name. (Cowley v. Dunlop, 7 T. R. 561, 566 ; Death v. Serwontert, Lutw. 885 ; Bosanquet v. Dudman, 1 Stark. Rep. 2, 3 ; Houle v. Baxter, 3 East, 177.) But the law looks to the substance and effect of the transaction. If, through the agency and with the privity of the lender, the borrower be oppressed with a double per centage, and the lender gain in the same proportion, this is usury, in whatever form the transaction may be disguised, Even a direct discount is not a formal loan ; but a purchase of paper. In substance it is a loan, and so is any transaction which results in the same thing. But it is said, the plaintiff was a broker and privileged to take a reward for his services in that character. Suppose him, for the present, to have acted in the capacity of a money broker : The statute of usury (1 R. S. 705, $ 1, 2d ed.) forbids his taking directly or indirectly more than one half per cent, for soliciting, driving or procuring the loan or forbearance of $100 for one year, and in that proportion. Here he charges two and a half or three per cent, for procuring a loan at four months. (See Pryce \. Wilkinson, 10 Moore, 177.) A broker who advances money J or his principal, is no more entitled to charge him extra interest than any other man. If he act as broker in a business distinct from the procuring of loans for instance, if he be a stock broker, and, in the execution of his trust, advance money for his principal this does not preclude him from charging a commission for his services. But the compensation is, in such cases, allowed for his actual services. He is no more allowed to overgo seven per cent, in his charge for advances than any other man. No one is allowed to take more than that for the loan or forbearance of money. The case of Nourse v. Prime, Ward # Sands, (7 John. Ch. Rep. 69, 77,) will illustrate the exception in favor of all brokers, save those engage^n pro- curing loans of money. The defendants took a note for their advances with simple interest, including also a distinct charge of a half per cent, for their services in negotiating stock trans- actions. This being a fair charge, Chancellor Kent held that 40 CASES IN THE SUPREME COURT. Ketchum v. Barber. the note was not void for usury. The allowance is made on the same principle upon which factors are permitted to charge a commission for their services in the general execution of their trust, which may be increased by reason of the undefined re- sponsibility and labor of collection resulting from a del credere commission. (M'Culloch's Diet, of Com. tit. Factor ; id. tit. Brokers ; Story on Jlgency, 337, 328 ; Paley on Agency, by Lloyd, 40, 41, 100, 101.) By the latter, he engages to sell the goods and warrant the solvency of the vendee. (Chitty's Beawes, 47 ; Mackenzie v. Scott, 6 Bro. P. C. 287, Toml. ed. ; Grove v. Dubois, 1 T. R. 115.) In other words, on the re- tainer of the creditor not the debtor he takes the office of a salesman, guarantor and collector of the debts. A. creditor may, no doubt, pay or contract to pay his agent what the lat- ter pleases to charge for the responsibility and trouble of col- lecting. The whole comes down to this principle. Where a bill broker at Nottingham took a bill o ondon in payment of a precedent debt, the collection of which, at London, would cost him, in the ordinary course of his business, 5s. , and hi* other charges by way of postage, &c. would be 5$. more, an agreement to pay 10$. at the time of discount was held not usurious, because it was a reasonable compensation for dis- bursements^in collection. (Ex parte Henson, 1 Mad. 112.) It is pretty plain from the case, however, that the vice chancellor would have held even this transaction usurious, if there had been a loan. In more familiar terms, one owes an attorney in the country one thousand dollars ; he brings him a bill on New- York as payment, saying, collect it and charge a commis- sion of five per cent, over and above your regular compensa- tion. The attorney does so. That is not usury, because it can obviously be nothing but compensation j and a man may al- ways pay his collector what premium he pleases. To this principle all the cases which allow to the lender more than seven per cent, on a loan, will be found to conform. They are the most common in respect to banks, which are indulged in taking a small commission for remittances. Yet this must ALBANY, JANUARY, 1848. 241 Kctchum t. Barber. be clearly for services, or it will be usury. (See Baynes T. Fry, 15 Vesey, 120 ; M'Kesson fy Co. Y. M 'Dowell, 4 Dev. f Bat. 120 ; Williams v. Hance, 7 Paige, 581 ; Campbell T. Shields, 6 Leigh, 517.) In the case at bar, however, the plaintiff departed from the character of broker. Burr was the broker, or driver of the bargain, and received commission as such over and above what was paid to the plaintiff. He does not mention the amount. It is presumed that this did not exceed the half per cent, per annum allowed by the statute. If more, he was himself guilty of usury. Any assistance in procuring a loan, is the driving of a bargain within the statute of brokers. This was express- ly held in Pryce v. Wilkinson, before cited. Thus has the statute fenced the borrower against the gripe of the lender, and against that of the broker. But it is insist- ed there is yet an intermediate character to which the statute does not extend. This is the guarantor for the borrower, or the seller of his endorsement. I have already noticed the practical effect of stich a distinction both upon the lender and borrower ; and will, for the present, only ask, of what use to the necessitous man are statutory provisions in his favor, if the distinction be allowed ? Clearly no more than a change in the person of his oppressor. He can get money at seven per cent, of one, if he will pay an undefined premium to Mother for a loan of the credit on which it is to be obtained. According to the homely adage, he is enabled to "jump out of the frying pan into the fire." The plaintiff claims that he sold his guaranty ; and I suppose desires to be considered as on a footing with a factor and commission merchant del credere. I have already noticed the principle on which commission is allowed to the factor. It is enough to repeat, that the plaintiff was not, in the transac- tion before us, either a factor or broker. On the contrary, re- garding him for the present as a guarantor, he became such at the instance of the borrower in order to obtain the loan from the bank. I know it has been laid down that " a charge for VOL. IV. 31 \ 242 CASES IN THE SUPREME COURT. Ketchum v. Barber. guarantying the payment of bills when unconnected with a loan by the party making it, is not usurious." {Chit, on Bills, 101, ed. o/*!839.) On looking at the case (Lee v. Cass, 1 Taunt. 511) cited by Chitty, the proposition to this unqualified ex- tent will be found not sustainable by it. On the contra- ry, in Lee v. Cass, the guaranty being for the benefit of the borrower, the premium paid by him for securing his paper by the guaranty was expressly declared to be usurious ', and an action of debt grounded on the statute was maintained. It is true, as we have seen, that a creditor may give a premium for a guaranty or insurance of his debt. (Ex parte Adney, Cowp. 460 Oakley v. Boorman., 21 Wend. 588 j Per Holt, C. J. in Bartlett v. Vinor^ Carth. 251, 252.) No one would deny that he may get his debt insured as well as his house. But no case was cited on the argument, and I am aware of none, holding that a debtor may hire another to procure forbearance by a guaranty, at a premium beyond seven per cent, per annum, if at any premium. If the guarantor will take the place of the debtor for that, very well. It makes no difference whether he buy the debt, or become surety and take it by eventual sub- rogation. Nor does it differ the debtor that he is paying seven per cent, to one or the other ; and he pays no more to the guarantor if he absolutely assume the debt. Otherwise, if a man lend his collateral security at a premium from the debtor, leaving him still to pay the principal and interest. In either case, what does the guarantor advance for the delay ? The original debt and interest. What is the consequence 1, Either conventionally or by legal effect, the debt becomes due to the guarantor, with the interest. He thus becomes a creditor in consequence of the forbearance, not only for all the money which he eventually advances, with the interest, but also for whatever premium he may have wrung from the necessities of the debtor on account of the delay he has procured for him. The only difference is, that instead of advancing the money in the first instance, and paying or buying the debt out and out for the premium, he, at a future day, brings himself into the ALBANY, JANUARY, 1843. 243 Ketchum . Barber. same case. The doctrine contended for is, that a man may de- mand any amount of premium from his neighbor for securing his debt. Take the case at bar, of a premium at the rate of seven and a half or nine per cent, per annum, leaving the debtor to pay interest for delay on the original debt. The principle would extend it to twenty per cent., because, it is said, here is no loan of money. I answer, it results in an advance of money. The negotiation is with a view to such advance ultimately. If there be no advance, so much the worse. The surety has got the premium for the mere risk that by chance he might have been obliged to advance. He gets it for a fic- titious or potential loan of money, instead of an actual one , and in the mean time he has lent out his real funds to others. Sanction this, and the statutes become laws for the encourage- ment of usury. I am aware a learned judge once said, he could see no objection to an accommodation endorser of a bill of ex- change taking a premium for his responsibility. (13 John. 47.) He was answering an argument that such was the usage. Under what qualifications he intended the remark should be taken, it is impossible to say. That a party cannot take a pre- mium for becoming surety as an acceptor or maker, he himself held in the very case he then had under discussion, and he did not point out the reason why an endorsement formed an excep- tion. That it is made with a view to procure and advance money for the principal, ultimately if not immediately, there can be no doubt ; nor that the premium is taken for such ad- vance. . He remarked, there is no loan of money directly or indirectly. I have endeavored to show that, in such a transac- tion, there is an indirect loan ; and shall, in another connec- tion, show that it has again and again been considered such upon authority. When the question in Dunham v. Dey, wherein the concession mentioned was made, came to the court of errors, Mr. Emmet insisted that the concession, if law, would overthrow the judgment of the court in that very case. (Dunham v. Gould, 16 John. 370.) It was not repeated in the latter case ; nor was it pretended on the argument of the 244 CASES i:\ THE SUPREME COURT. Kctchum v. Barber. case now before us that the dictum has the sanction of any adjudged case, or has ever been repeated elsewhere. I shall have occasion to show that it has been virtually disregarded in the entire course of the authorities, so far as they have noticed the question. It seems to be agreed, that the surety can in no case be entitled to receive any thing that he pays beyond the principal and legal interest. JSven if he become bound and pay usurious interest for his principal, instead of receiving it himself, and he know of the usury, he cannot recover on an indemnity bond given by the principal. (Ord on Usury, 100, 101 j Com. on Usury, 196 to 198 ; Ford v. Keith., I Mass. Rep. 139 ; see also Bryant v. Christie, I Stark. N. P. Cas. 329.) Potkirfs case, (3 Leon. 63,) seems never to have been overruled. It would surely be a wide departure should we al- low the surety to pay for a premium and recover the usury money for himself. The commission of two and a half per cent, agreed to in Colton v. Dunham, (2 Paige, 267,) was for becoming a guarantor of moneys borrowed upon respondentia, which may be at more than seven per cent. (See Peters v. Warren Ins. Co., 1 Story's Rep. 463, 472.) Beside, the legali- ty of the transaction was not passed upon. Considering the plaintiff, therefore, as a guarantor, absolute or collateral, will furnish no protection against the imputation of usury. It is further said, that the plaintiff himself did not loan money ; and so there cannot be usury. It is not denied that the pres- ent statute of usury, (1 R. S. 760, 2d ed.) is equally compre- hensive with the former. It applies, therefore, to a loan of money not only, but of every thing that is of money's worth. This was said in so many words by Bayley, J. in Parker v. Ramsbottom, (5 Bowl, fy Ryl. 151 ; 3 Barn. 4* Cress. 257, 270, S. C.) The plaintiff would hardly be willing to admit that the name of his firm on which the premium was advanced was not money's worth ; and it is entirely settled, that where a man puts his name to negotiable paper for the purpose ot money being raised upon it, there is a loan within the meaning ALBANY, JA: 1313. Ketch am . Barber. of the statute of usury. (See Reynolds v. Doyle, 1 Mann, tf Grang. 753.) In Kent v. Lowen, (1 Camp. 177,) the defen- dant offered proof to show that Coates & Co. proposed to ac- commodate the defendant with their acceptance at three months, upon receiving his note for the same sum at ninety days, together with two and a half per cent, commission. Lord Ellen- borough told the jury there was no color for the commis- sion ; and that if they believed the evidence made out the case proposed, they were bound to find for the defendant, which they did. This case was recognized as laying down the law correctly in Dunham v. Dey, (13 John. 40.) In the latter case, the parties had exchanged notes to an equal amount, the plain- tiff charging and receiving a commission of two and a half per cent. Yates, J. told the jury, that if they believed this was for the purpose of raising money at a greater rate of interest than seven per cent, per annum, which they were warranted to infer, such intention made it intrinsically a loan, and the transaction was usurious and void. On a motion for a new trial, Spencer J. asked, " What is the difference between a man's lending his notes to raise money upon, taking more than legal interest, and lending his money ? 1 confess 1 perceive no other difference than this : that the borrower of the notes must prob- ably pay more usury, to get them converted into cash. But the transaction is substantially a lending of money ; and I agree with the defendant's counsel, that if this device be tole- rated, the statute is judicially repealed." The question in that case came before the court of errors, (Dunham v. Gould, 16 John. 374,) where Kent, chancellor, delivered the opinion of the court. He said : " The statute applies as well to a loan of notes on usurious interest, as to a loan of cash." Again, he said : " Here was nothing more than a simple exchange of notes, instead of a loan of cash. This was a clear evasion of the statute against usury." In Dcy v. Dunham, (2 John. Ch. Rep. 182, 193,) the same transaction is called by Chancellor Kent a lending of credit and security ; and he loo cited Kent v. fawen with approbation. Fanning v. Dunham, (5 John. Ch. Rep. 246 CASES IN THE SUPREME COURT. Ketchum . Barber. 122, 134,) brought up the same question, as well on a com- mission for endorsements as for making notes. The commission was two and a half per cent, with the liberty of one renewal. The loan of endorsements was placed by the chancellor on the same footing with that of notes in the other form. Speaking of both, he says : " Instead of being a cash advance, it was a loan of his credit ;" and he declared both to be usurious, where the notes had but four months or less to run. There was an exchange of notes, or of endorsements for notes, and in this re- spect the case stood on the same footing as that of Dunham v. Dey, and Dunham v. Gould. In Steele v. Whipple, (21 Wend. 103,) we followed that case, in also holding that the endorse- ment of a note for the purpose of raising money, was a loan of credit ; and that taking a premium for the loan was usurious. I there remarked : " I have no hesitation in saying that a man can no more lend his endorsement for a compensation beyond seven per cent., than his money. Though it is not cash itself, it is an equivalent." This was thought, on the argument of the case before us, to be a new application of the statute of usury. I there stated that I thought the case of Kent v. Lowen contained the true doctrine, and was in no way distinguishable in principle. I will add, that I thought the proposition too plain to require much support from authority ; and still con- sider it so. In looking through the books, I find many authori- ties indeed all that go against indirect usury sustaining the same principle. I have now noticed a few which are circum- stantially in point, for I am unable still, as I was then, to dis- cover any colorable distinction between receiving a premium of more than seven per cent, per annum for lending credit by accommodation acceptances or making notes, and endorsing. They are each equally loans of credit ; and the language of the courts in Dunham v. Dey, Dunham v. Gould, and Fanning v. Dunham^ applies mutatis mutandis in all respects to the loan of an endorsement. The king's bench have declared that a loan of acceptances, at a premium of more than five per cent, per annum, is void. This court and the court of errors ALBANY, JANUARY, 1848. 247 Ketchum r. Barber. have declared the same thing as to a loan of notes made by the lender ; the court of chancery, the same thing as to the loan of en- dorsements ; and this we repeated in Steele T. Whipple. All three are but different modes of becoming security. The only difference is, that on an exchange of notes, acceptances or en- dorsements, the transactions are not on their face loans of ac- commodation paper. (Fell on Commercial Guaranties, 247.) The paper of one party is a valuable consideration for that of the other ; and there is some plausibility in such a case for say- ing there is no loan. Yet the courts have not allowed such a construction to prevail. Spencer J. said, it would be a judicial repeal of the statute. In Steele v. Whipple^ and in the case at bar, the loan of credit was undisguised. It was not even color- ed by an exchange of paper. To sanction such loans would be an act of repeal still more open and effectual. Usury might dismiss its devices and shifts, leave its hiding places and walk abroad in the public streets. (See also Flower v. Millaudon, 19 Louis. Rep. 187, 8.) In Dunham v. Gould, it was pro- posed to show that, according to a usage of merchants, where one advances his note in exchange for another, the former may charge a commission of two and a half per cent, on the note so given in exchange ; and that the like usage existed as to the endorsing of notes and bills of exchange, and the executing of custom house bonds. Chancellor Kent answered, that it was per- fectly idle to talk of such a custom. He said, " If there were such a local usage in New- York, it would be null and void, and could not be set up as a cover or pretext to trample down the law of the land." That accommodation paper is always considered as a loan, may be seen in Reynolds v. Doyle, (1 Mann. $ Grang. 753.) In forming my conclusions upon the transaction in question, I have disregarded the distinction which has been some times taken by the court of chancery of this state, with regard to an exchange of notes. The distinction is this : that on A. giving his note to B., and receiving one of the same amount from B M A. may exact a commission, if it do not exceed the rate of in- 248 CASES IN THE SUPREME COURT. Ketchum . Barber. terest at seven per cent, per annum for the time A.'s note has to run. Thus, if A.'s note run only four months, he may take a commission of two per cent., but not two and a half. (Fan- ning v. Dunham^ 5 John. Ch. Rep. 122, 134.) If his note run six months, he may exact two and a half, and even three and a half per cent. ; (Dey v. Dunham, 2 John. Ch. Rep. 182, 193 ;) and if nine months, five per cent. (Bullock v. Boyd, 1 Hoffm. Ch. Rep. 298.) I have disregarded this distinction for several reasons. In the first place, if the present transaction were an exchange, and not a naked loan of credit, it would be usury within that distinction. Secondly, it was not an exchange, but a mere loan of credit ; and, thirdly, I am satisfied the distinc- tion itself was inadvertently made. It is supported by no pre- cedent, but is contradicted by many, and violates the laws of finance and commercial dealing. The cases cited have ad judged that a good note at nine months, intended for discount, is worth more than a like note at four months, or even thirty days j and, for that reason, they allow a commission to the len- der, large in direct proportion to the time which the note has to run ; whereas the law of discount, if it allowed a commis- sion at all, would enlarge it inversely to that time. (M'Cul- loch's Diet, of Com. tit. Discount.) They allow a premium of seven per cent, on a note at one year, and twenty-one per cent, on a note for three years &c.j but nothing on a note payable instanter. By the law of discount, the latter note would be worth par ; the year note seven per cent, less ; the three year, twenty-one per cent, less, and so in that proportion. An actual discount in gold or silver is better than either ; and yet all the cases hold, that should A. pay specie, instead of his note for the same time with B.'s, and receive a premium be- yond the discount on B.'s, it would be usury. In short, the effect is to charge B. with seven per cent, for a note at a year, on which he can obtain in the market ninety-three dollars only, the borrower thus being compelled to pay, in the whole, four- teen per cent, per annum. To apply the authorities, it is ne- cessary to look at the real nature of an exchange of paper. It ALBANY, JANUARY, 1843. 249 Kctchum v. Barber. is a transaction of perfect equality, on an agreement either to exchange notes, acceptances or endorsements, exactly the same as to times and sums, or to equalize the transaction in some other form, so that one shall advance no more money than the other. The parties purchase each other's paper ; and A., the lender, may be considered as discounting, by his own paper, the paper of B., the borrower. This A. may do, if his paper be the shortest, say six months only, B.'s being at a year. The discount taken would then be by A. three and a half per cent., because his note would be worth at the bank three and a half per cent, more than B.'s would be to A. Suppose A. to go one step further, and give his note for cash down ; he may take the whole seven per cent., because his note will bring that amount in market. It is then the same as cash ; but all the authorities hold that, even in this most advantageous advance to B., the purchaser can take no more than the simple inter- est. The rule is, shortly, this : that a note made to raise mo- ney upon, and discounted at more than simple interest, is usu- rious and void. (Bayley on Bills, 575, Am. ed. of 1836, and the cases there cited.) This being so, it follows, a mttlto for- tiori, that giving a note payable at a remote day, worth on its face seven or twenty-one per cent, less than the note discount- ed, or taken in exchange for it, is usury. The transaction in Matthews v. Griffiths, (Peake's JV. P. Cos. 200,) was an ex- change of notes. A bill at thirty days, belonging to Mrs. Stewart, was discounted by the defendants at the usual dis- count, by giving their note in exchange payable three days after sight ; and, because they did not also deduct the interest for the three days, the exchange was holden by Lord Kenyon to be unequal, and the transaction usurious. (Maddock v. Hammett, 1 T. R. 180, 181, S. P.) So far from the lenders of the exchange notes being allowed to charge a commission for the time their notes had to run, they were punished because they did not, for that very reason, let their notes go for less than their face. If the opposite principle were to prevail, then a bank, by refusing its bills and giving its post notes, might VOL. IV. 32 250 CASES IN TtfE SUPREME COURT. Ketchum v. Barber. exact not only the interest as a discount, but also a premium of seven per cent, per annum for the time its notes had to run ; and the longer the post note, the larger the premium. I need hardly say that such dealing was condemned as usurious by the supreme court of the United States, in Gaitfar v. Meek. $ Farm. Bank of Georgetown, (1 Pet. 37, 41 ;) and State Sank of Eliza- beth v. JJyers, (2 Hoist. 130.) But the transaction is equally within another class of cases. A man wanting money is put off with goods or stock at more than they will fetch in market. This is usurious, because, in effect, the lender gets more than seven per cent. (Com. on Usury, 94, 104.) In the same man- ner, the borrower wanting money is put off with a note at more than it is worth. The effect is identical. The trouble of collecting is no more than in the case of an ordinary dis- count j the contingency of the borrower's death or insolvency is, in no case, a legitimate foundation for demanding extra inter- est; (Colton v. Dunham, 2 Paige, 272, 3 j Taylor v. Bell, 2 Vern. 171 ;) the pretence of remittance is out of the case ; and there is no commission del credere. It cannot be brought with- in any of the authorities which allow commissions by way of compensation for services. I have said that, in the case at bar, there was no exchange ; but only the naked loan of an endorsement. On the ground taken, the same commission paid the plaintiff might also have been exacted by Barber and Leonard the first endorsers ; and in a line of several endorsers, the borrower may, in this way, before he reaches the bank, be stripped of half of his anticipa- ted loan. The relation arising between a man who endorses or puts his name to paper for the accommodation of another, is that of surety and principal. (Fell on Com. Guar. 238, 9, Jim. ed. of 1825 ; Houle v. Baxter, 3 East, 177.) The nature of the obligation is, that there is nothing due from the principal till the surety shall have actually paid the money. (Fell on Com. Guar. 238, 9, Jim. ed. of 1825 ; Reynolds v. Doyle, 1 Mann, # Grang. 753.) On doing so, he can recover nothing beyond his ALB A .NY, JA.NI/AI.Y, 1843. 261 Kctchum r. Barber. principal, and his interest from the time of payment, with costs. (Fell an Com. Guar. 256, Jim. ed. of 1825 j Hayden r. Cabot, 17 Mass. Rep. 169.) The surety has precisely the same rights that the creditor has. ( Fell on Com. Guar. 248, 249.) On pay- ing the debt, he cotoes equitably into the shoes of the creditor. He is the owner of the debt, and a court of chancery will de- cree that he be actually substituted, so as to take all the reme- dies of the creditor. (Id.) Why is the surety thus limited at law and in equity to his actual advances of money ? Because, in truth and honesty, he is out of pocket to that extent only. The money he pays is not due on his entering into the obliga- tion j perhaps it will never fall due, and the intent of both par- ties is, that it never shall. It may possibly fall due at a future day on a condition yet to happen the default of the principal and payment by the surety. Up to that time there is no debt at all, but the bare possibility of a debt. The surety contracts to make a prospective loan or advance which, in its own na- ture, will draw interest from the time when it is made ; and cannot do so before. There is a loan of credit which may ma- ture into a loan of money ; but until it do so, it is a barren loan, an act of courtesy, against which, to be sure, an indemnity or counter security may be taken in any form j but nothing more, until it amount to an advance of money. To constitute usury, there need not be a technical loan. The statute speaks of the loan or forbearance of money. The contract to advance may be in any form, present, future, absolute or contingent. Any contrivance, says Lord Mansfield, if it be in substance a loan, comes under the word indirectly ; and when that is so, the wit of man cannot make shift to take the case out of the statute. (Floyer v. Edwards, Cowp. 114, 115.) The practice of demanding a premium from the borrower, for the mere loan of a responsible name on which to raise money, is equally within the principle of the statute with an extra premium for the money itself. The name is a sine qua nan with the money- lender j and the borrower is prepared to make the requisite sacrifice in order to obtain it. The statutes of usury, says 252 CASES IN THE SUPREME COURT. Kctchum v. Barber. Lord Mansfield, were made to protect needy and necessitous persons, who, from the pressure of their distress, are ready to come to any terms. (Browning v. Morris, Cowp. 792.) Hence, no case ever has allowed, and, in justice to the statutes of usury, never can allow exactions for the mere act of becom- ing security. The practice was put down at once in Lee v. Cuss, (1 Taunt. 511.) In that case, Cass refused to discount a bill, unless the borrower would allow him to guaranty the payment at three and a half per cent. The borrower endorsed the bill accordingly, paying that sum. Cass's counsel insisted that the premium was allowable because the guaranty was abso- lute, and there was no forbearance. Mansfield, Ch. J. said, there was forbearance till the bill became due ; and the guar- anty would not protect the borrower against a bonafide holder, though he admitted the borrower might recover over. He also said, if the objection were valid, it would give complete facili- ty and security to usury. The case at bar is much stronger. The forbearance itself was merely colorable ; not on money advanced, but on money possibly to be advanced 5 for the en- dorsement was collateral, not absolute, and the plaintiff had the security of both maker and endorsers, that whatever he might be compelled to advance should be refunded. The notes were payable at his own bank, obviously intended for discount, and one of them actually discounted there. For such a risk he charges the borrower seventy-five to ninety dollars. The transaction is, perhaps, not quite so gross and unblushing as that in Steele v. Whipple ; but the principle is the same, what- ever the amount. A man may take discount in advance, and, if you please, interest in advance on short paper, where he makes an actual disbursement ; but was it ever heard that he might do the same thing in anticipation of a disbursement which he may possibly be obliged to make, which he will probably never make at all, and which if he do, must be reimbursed by others against whom he holds counter security ? A man can- not take interest for a debt not yet due. I know the rule is clogged with some qualifiration where the debt is absolute ; ALBANY, JANUARY, 1843. 53 Kctchum t>. Barber. but no exception can ever be allowed where it is inchoate, and the borrower is already paying interest to another. It is shameful and scandalous oppression on its face. By what rule can an endorsement, and the consequent contingent forbearance, be estimated ? Assuming the counter security to be good, as we always must, and the endorser always does, the whole is a mere form. It costs him nothing, and it never will cost him more by way of forbearance than he can recover over. He indeed lends a chose in action ; but the money he may advance under it, with interest on that, is to be restored at all events. If he take or contract for more, it is usury within all the au- thorities. It is so within the express terms of Kent v. Lowen, (1 Campb. 177,) which has never been questioned. The precise point was there decided, unless we run into the absurdity of say- ing that an acceptance is worth less than an endorsement. Coates & Co., in terms, lent their acceptance for three months on re- ceiving counter security at three months, and charged a com- mission. Park, as counsel, put the very point. He said, the commission was to be considered, not as interest, but as a com- pensation for trouble in accepting the bill and accommodating ihe defendant. Per Lord Ellenborough : There is no color for the commission, and the two and a half per cent, must be con- sidered as usurious interest. The case was not placed upon the lime, but on the/etc^ that any commission at all was taken. The borrower had to pay interest to another on getting the bill discounted, for the three months it had to run. By pay- ing any thing for the loan of the bill itself, he was charged with extra interest. He secured the lender of the bill a repay- ment of such principal as he might be obliged to pay on his acceptance becoming due, with interest on such contingent ad- vance ; and that was all to which he was entitled. The case is quatuor pedibus with the present. I mentioned and stated this case before, in another connection. We saw then, and I will now add, that it was held to be law by this court in Dun- ham v. Dey, by the court of chancery in Dey \. Dunham, and by this court again in Steele v. Whipple. The case is natural- 254 CASES IN THE SUPREME COURT. Ketchum v. Barber. ized here, without qualification j nor can human ingenuity dis- tinguish it from the case at bar, farther than to say that this is still stronger against the plaintiff. That was a direct guaranty ; this a collateral one. In that case the plaintiff was an inno- cent holder ; in this, he is the very party to the usury. I am aware the modern notion on the subject of usury is so latitudinary, that judges are put on the defensive for holding almost any thing to be within the statute. Lord Kenyon thought he should be so, on deciding Matthews v. Griffiths; and it turned out, as appears by what he afterwards said in Maddock v. Hammett, that he was not disappointed. One can scarcely see why he should have been censured, unless for re- fusing to wink at small plunder. Even that case, when fairly understood, will be seen never to have been shaken. But above all, I protest against a similar censure upon judges for repudiat- ing such bold and bungling usury as was disclosed in jfcewf v. Lowen and Steele v. Whipple. In all cases like them, the transaction is mathematically usurious. Res ipsa loquitur. Where there is a dispute about the real character of the trans- action as, whether it be a sale, instead of a loan, forbearance or device the question is put to the jury. But to such a case as Kent v. Loweri, and various others which I have noticed, every one will apply the language of Lord Kenyon in Mat- thews v. Griffiths. " Now the cause is over," said he, " 1 must say one word for myself. I am most clearly of opinion that this is usury. Whether the party (the borrower of the bill) consented or not, can make no difference. All men, lawyers or not lawyers, must agree on this case. It is so clear that no two men in the profession can entertain different opinions on it." On the whole, I differ with the referee. He considered the transaction between Muir by his agent Burr, and the plaintiff, as the sale of a guaranty or endorsement. My own view is, that it was a loan of credit, at a usurious rate of interest ; and that, therefore, the notes in question, having come into the plaintiff's hands as a further security or extension of the loan, ALBANY, JANUARY, 1843. 255 Seymour p. Strong. are void. I am of opinion that the report should be set aside, and a rehearing granted ; the costs to abide the event. Motion denied. SEYMOUR and others, ex'rs. &c. vs. STRONG. Before a witness' competency can be deemed to have been restored by a release, something more than a constructive delivery of the release i. e. a delivery to a third person for the use of the witness must be shown. It should at least appear that he knew of the release at the time of giving his testimony. A witness, prima facie interested, having been examined under a commission, it was shown at the trial that the commission, together with a release of the wit- ness' interest, were enclosed to the commissioner in one wrapper, accompanied by directions to deliver the release to the witness before swearing him ; and that the release was afterwards annexed to the commission and returned with it Held, sufficient evidence of the delivery of the release to authorize the deposi- tion to be read. C. covenanted to assign to a bank, bonds and mortgages on real estate to the amount of $13,000, payable in five years, with interest scmuannually, and to guaranty the payment of them ; in consideration whereof, the bank agreed to transfer to C. certain stock to the amount of 6500 at its nominal value, but which was then twenty-five per cent, below par, and to pay him the balance in money. Afterwards, the bonds and mortgages not having been assigned, tho bank transferred the stock and paid the money on receiving two notes for $6500 each, agreeing to take the bonds and mortgages in payment, if delivered before the notes became due. Held, in an action upon one of tho notes, that tho trans- action was usurious ; and a verdict finding it otherwise was set aside. ASSUMPSIT on a promissory note, tried at the Monroe circuit, in December, 1841, before DAYTON, C. Judge. The note was for $7005,67, dated December 26th, 1836, and payable to the Bank of Rochester, or bearer, three months after date. The defence was usury. At the trial, the case proved was this : On the 26th of January, 1836, a written agreement was enter- ed into by Daniel Collins and the Bank of Rochester, by which the former covenanted to assign to the bank, bonds and mortga- ges on real estate to the amount of $13,000, payable in five years, with interest semi-annually, and to guaranty the payment of the mortgages j in consideration whereof, the bank agreed o 256 CASES IN THE bUPKEME COURT. Seymour v. Strong. assign to Collins 130 shares of stock in the Rochester Cotton Manufacturing Company, (the nominal value of which was $6500,) and pay him the sum of $6500 in money. The bonds and mortgages not having been assigned, another agreement was made between the parties on the 27th of February follow- ing, which was written below the other on the same piece of paper. By this last agreement, after reciting that Collins had given two promissory notes for $6500 each, one endorsed by Strong (the defendant) and the other by one Frost, payable ninety days from date at a bank in the city of New-York, it was stipulated that the Bank of Rochester would receive bonds and mortgages in payment of said notes, if delivered within the time said notes had to run. The notes mentioned in the agree- ment bore interest from date, and, when they were given, the bank assigned the 130 shares of stock, and paid Collins $6600 in cash. This assignment of stock and payment of money formed the only consideration of the notes. The note in ques- tion was made by the defendant, and substituted in the place of the one mentioned in the agreement as having been endorsed by him. It further appeared in evidence that, during the month of January, 1836, and for a long time afterwards, the stock of the Rochester Cotton Manufacturing Company was at least twenty-five per cent, below par The defendant's counsel offered to read in evidence the deposition of Daniel Collins, a resident of Ohio, taken under a commission on the llth of October, 1839. The plaintiffs' coun- sel objected, on the ground that Collins was interested. The defendant's counsel claimed that he had been rendered com- petent by release ; and, for the purpose of showing this, prov- ed the signature of the defendant to a release dated October 2d, 1839. The defendant's counsel further proved that the release was delivered by the defendant to his attorney, Mr. Gilbert, for Collins' use, with a request to send it to him that it was accordingly enclosed in the same wrapper with the com- mission and sent by mail to the commissioner, with directions to deliver it to Collins before being sworn that it was re- ALBANY, JANUARY, 1843. 257 Seymour r. Strong. turned with the commission &c. postmarked at the residence of the commissioner and that Collins left this state in 1836, for Ohio, where he had ever since resided. The plaintiffs 1 counsel insisted that the evidence was not sufficient to show a delivery of the release to Collins, and the circuit judge sus- tained the objection. The judge charged the jury, among other things, that if they should be satisfied the transaction was intended by the parties (Collins and the bank,) as a cover for a usurious loan, the defendant would be entitled to a verdict ; but if, on the other hand, they thought the contract between the parties was such as the two written agreements and the note imported on their face, and nothing more, they should find in favor of the plaintiffs. The jury rendered a verdict for the plaintiffs j and the defendant now moved for a new trial on a case. J. W. Gilbert^ for the defendant. C. M. Lee, for the plaintiffs. By the Court, COWEN, J. No doubt Collins might avail himself of the release on proof of the delivery to Mr. Gilbert for his use. But the object being to qualify a witness, some- thing more than a constructive delivery of the release was ne- cessary. In order to remove his presumed mental bias in favor of the party, it must appear that he knew of the release before giving his testimony. The circumstances here in proof, how- ever, show that he could not but have known of the release in season for that purpose. Indeed, the proof of its actual delive- ry to him before he was sworn seems to be irresistible. There is no pretence for this case being within that of Cram v. HendrickS) (7 Wend. 569 }) nor the later case of Rapelye\. Anderson, decided in the court for the correction of errors*, in VOL. IV. 33 258 CASES IN THE SUPREME COURT. Seymour e. Strong. December last, (a) The original note was void in its concoc- tion. The various agreements, notes and other arrangements were all parts of one transaction, and the effect of them was to secure more than seven per cent, per annum to the bank for the loan. The whole was radically and necessarily vicious be- cause of such a usurious effect, by which the intent of the par- ties must be judged, and there was no question for the jury. (Haire v. Wilson, 9 Barn, fy Cress. 643, per Lord Tenterden, Ch. J. ; Mackie v. Cairns, 5 Cowen, 573, per Golden, senator ; The JV. Y. Firemen Insurance Co. v. Ely, 2 Cowen's Rep. 678, 705 ; Bank 'of Utica v. Wager, id. 712, 769, affirmed on error 8 id. 398.) I have had occasion, in several recent cases, to examine the state of the usury law in reference to questions very nearly of kin to the one before us ; and must confess that I found the paths of fraudulent device much more broad and better fenced for the usurer than I had supposed possible. I found them withal so plain and numerous, that very little ingenuity seemed necessary to get round the statute. Three ways were open, which I had supposed to be shut, viz. the usurious loan of credit ; (Ketchum v. Barber, ante, p. 224 ;) usurious interest in the name of factorage ; (Suydam v. West/all, ante, p. 21 1 j) and the sale of choses in action generally ; (Rapelye v. Anderson, post.) But we all think that the course taken in the prin- cipal case a usurious loan on contracts to procure the as- signment of choses in action at a future day choses in action which are not shown to have been in existence at the time of the loan, the latter, moreover, being ultimately secured by the prom- issory notes of the party is not sanctioned by any of the cases. For the reasons more at large why we cannot yield even to a ver- dict pronouncing such a transaction free from usury, I refer to the opinion delivered by me in Rapelye v. Anderson. Although (a) For Rapelye v. Anderson, see the cases decided by the court for the correc- tion of errors, post . ALBANY, JANUARY, 1848. 59 Austin r. V&ndcrmark. those reasons were overruled by a majority of the court of er- rors as not applicable to that case, we think they apply to the present. The power to grant new trials, where there is a ver- dict against the weight of evidence, prevails in all civil actions, except those which draw in question sales, transfers or mort- gages made for the purpose of defrauding creditors. There are also cases where the usurious devices are thought to be tortuous and obscure, in which jurors have been allowed to decide finally j but we are not disposed to multiply such exceptions to our ac- knowledged power. The legislature has commanded us to use all legal means in nullifying usurious transactions, whether direct or indirect ; and we should execute the command most miserably by winking, or even allowing jurors to wink, while looking upon thin disguises. We are satisfied that neither has ever been done in case of a transaction so obviously usurious as the one in question. There must be a new trial both for error in excluding Col- lins' deposition, and on the merits as shown without it. New trial granted. AUSTIN and others vs. VANDERMARK, impleaded Ac. An accommodation endorsement made by one member of a mercantile firm with- out the assent, either express or implied, of his co-partners, cannot be enforced against the latter, except in favor of e. lona fide holder without notice. Per NELSON, Ch. J. N. gave L. a business note, endorsed by M., which was transferred to A. After the note fell due, M., being indebted to N., made another note for the cam* amount, payable to the order of and endorsed by the latter together with V. ft, Co., and sent it to A. as a pubstitute for the first note, which hi desired fhou!d be returned to him, Held, that though the firm name of V. A. Co. was used for M.'s accommodation, the circumstances were not sufficient to charge A. with knowledge of the fact ; and that he was therefore entitled to a verdict against all the members of the firm, though the endorsement was made by oaa, without the knowledge or consent of the others. 260 CASES IN THE SUPREME COURT. Austin v. Vandermark. ASSUMPSIT, by the endorsees against the endorsers of a prom- issory note, tried at the Ontario circuit, in November, 1841, before MOSELEY, C. Judge. The note was for $424,50, dated October 16th, 1839, made by Norton, Bartle & McNeil, paya- ble a the Mechanics' Bank in the city of New- York, to the order of and endorsed by Norton, Ford & Co. and O. Vander- mark & Co. All the defendants except Frederick Vander- mark, of the firm of O. Vandermark & Co., allowed judgment to pass against them by default. On the trial, the case was this : Norton, Ford & Co. being indebted to one Lane, gave him their note endorsed by Norton, Bartle & McNeil, which was transferred by Lane to the plaintiffs. When this note be- came due, Norton, Bartle & McNeil owed Norton, Ford & Co., and agreed to the note in question and to get it endorsed by O. Vandermark & Co. for the purpose of taking up the first note on which Norton, Ford & Co. were liable as princi- pals. The note in question was accordingly made, and en- dorsed by O. Vandermark in the name of his firm for the ac- commodation of the makers. The defendant F. Vandermark was not present when the endorsement was made, nor did it appear that he knew of or assented to it. The note in ques- tion was sent to the plaintiffs in a letter written by McNeil, one of the makers, dated Phelps, October 30th, 1839. The letter was in these words : " Gent'n Above I send you Nor- ton, Bartle & McNeil's note for amount of Norton, Ford & Co.'s note in favor of Henry Lane for $417 past due, and which you will please return me per mail." In answer to this letter, the plaintiffs wrote to McNeil as follows : " New- York, November 2d, 1839. Sir : We received this morning in yours of the 30th ult. a note drawn by Norton, Bartle & McNeil at 63 days from 16th Oct. 1839, for $424,50, to replace one of Norton, Ford & Co.'s for $411,15, protested for non-payment the 5th ult. By reference &c., you will perceive that the note for $424,50 is $4,44 too much. This amount we will hold subject to your order on payment of the said note." There was no evidence in the case, other than the above letters and ALBANY, JANUARY, 1843. 261 Austin . Vandcrraark. the notes themselves, to show that the plaintiffs knew the nbte in question was endorsed by O. Vandermark & Co. for the ac- commodation of the makers, or that the name of the firm was endorsed without the knowledge of the defendant F. Vander- mark. The judge charged the jury that, prima facie, the plaintiffs were to be considered bona fide holders, and that it lay upon the defendant F. Vandermark, to show the plaintiffs knew, when they took the note, that he did not consent to the endorsement. The judge further charged, that there was not enough upon the face of the notes and letters to show that O. Vandermark & Co. were accommodation endorsers. The jury found for the plaintiffs, and the defendant F. Vandermark now moved for a new trial on a case. F. M. Haight, for the defendant, F. Vandermark. A. Warden, for the plaintiffs. By the Court j NELSON, Ch. J. As the firms of 0. Vander- mark & Co. and Norton, Ford & Co. were joint payees and endorsers, the note must be regarded, prima facie, as business paper with which the former firm was connected, and therefore properly negotiated by one of the members. But the material question in the case is, whether the circumstances given in evi- dence were sufficient to make out a notice to the plaintiffs that O. Vandermark & Co. were accommodation parties. If so, the plaintiffs are properly chargeable with want of authority on the part of O. Vandermark to bind his firm. The making of accommodation endorsements is out of the scope of the part- nership business of a mercantile house, and therefore not bind- ing upon it, unless done with the express or implied assent of all the members of the firm. This is the rule, except where the paper comes to the hands of a bonajide holder. (Ganse- voort v. Williams, 14 Wend. 133, 138 ; Wilson v. Williams, id. 146.) 262 CASES IN THE SUPREME COURT. Austin v. Vandermark. The only circumstance in the case tending to establish the plaintiffs' knowledge of the relation which the firm of O. Van- dermark & Co. occupied in respect to the note in question^ without regard to the form in which it is made, is, that the note was sent in a letter to the plaintiffs by McNeil, one of the makers. This, I admit, had the debt for which the first note was given been the debt of McNeil's firm, would, if unexplained, have been conclusive in favor of the defendant, for the reason given by the chancellor in Stall v. Catskill Bank, (IS Wend. 478.) But the first note was not given for the debt of McNeil's firm, and therefore the fact of his posses- sion and transmission of the note in question to the plaintiffs is not at all inconsistent with the presumption arising from the face of the note, viz. that it was business paper. The pa- per being sent to take up the note of third parties, the natu- ral inference from the fact is, that McNeil acted as agent for this purpose in behalf of Norton, Ford & Co., the real debtors, for whose. benefit the note held by the plaintiffs was about to be renewed. Besides, McNiel's firm being endorsers upon the note that had just fallen due, he was interested in seeing that it was taken up ; and this might well account, in the minds of the plaintiffs, for his being the medium of commu- nication on behalf of the principal debtors. At least, I think it would be more natural for them to draw such an inference from the facts within their knowledge, than that McNeil's firm had made the note and procured the names of the real debtors and of O. Vandermark & Co. as accommodation endorsers, for the mere purpose of taking up the first note. It appears to me the transaction should be regarded in the same light as if the note had been transmitted by Norton, Ford & Co. to the plaintiffs. If such had been the case, there would have been no difficulty. Nothing would then have appeared to distinguish the transaction from the ordinary case of a party paying his debt by turning out to the creditor what appears, on its face, to be a business note. ALBANY, JANUARY, 1843. 263 Kelley . Mayor &c. of Brooklyn. I am of opinion that the ruling of the learned judge at the circuit was correct, and that a new trial should be denied. New trial denied. KELLEY vs. THE MAYOR &c. OF THE CITY or BROOKLYN. A statement of a particular fund in a draft or bill of exchange, if inserted merely as a direction to the drawee how to reimburse himself, will not vitiate it. Accordingly, in an action against the city of Brooklyn by an endorsee of an instru- ment, signed by the mayor and countersigned by the clerk, in these words : " To the treasurer of the city of Brooklyn, at the Long Island Bank Pay A. L. or order, fifteen hundred dollars for award No. 7, and charge to Bedford road assessment" &c. : Held that, notwithstanding the latter clause, the instrument was a negotiable bill of exchange. A municipal corporation may issue negotiable paper for a debt contracted in the course of its proper business ; and no provision in its charter or elsewhere, merely directing a certain form, in affirmative words, should be construed as taking away this power. Per COWEN, J. The same rule applies to all corporations, whether public or private. Per COWEW, J. Where the charter of a municipal corporation provided that all moneys should be drawn from the treasury in pursuance of an order of the common council, signed by the mayor &c. : Held, that a negotiable draft on the treasury, signed in the manner directed, but issued on the basis of a mere note or memorandum in the corporation minutes, without a formal order having been entered, wan a sufficient compliance with the charter ; it appearing that this was the accustomed mode of drawing moneys. The corporation will not be discharged from liability on such draft by the omission of the holder to make presentment to the treasurer and give notice, provided it be shown that it neither has suffered nor c&n suffer from the omission. ASSUMPSIT, tried at the Kings circuit, in December, 1841, before KENT, C. Judge. The action was by the plaintiff as endorsee of a written instrument in these words : No. 1122. Dec. 31st, 1836. City of Brooklyn, ss. To the Treasurer of the city of Brooklyn, at the Long Island Bank. Pay Alexander Lyon, or 264 CASES IN THE SUPREME COURT. Kelley v. Mayor &c. of Brooklyn. order, fifteen hundred dollars for award No. 7, and charge to Bedford road assessment &c. A. G. Stevens, Clerk. Jon. Trotter, Mayor." (Endorsed) " Alexander Lyon." On the trial, the plaintiff proved the execution of the in- strument and endorsement, and that the drawers were the mayor and clerk of the common council of the city of Brook- lyn. It was also proved that, at the date of the instrument, the treasurer of the city had no funds arising from the Bedford road assessment, but that such funds came to his hands soon after and were drawn out from time to time by the officers of the city corporation. The instrument in question was present- ed to the treasurer in October, 1838, and payment refused. It further appeared that the 'instrument was drawn in the ordinary form and according to the usual course of business in such cases, having been authorized by a vote of the common council. The entry in the book of minutes, evincing the authority, was as fol- lows : " Communication from H. C. M. that the opening of Bedford road had been confirmed &c., on motion, the usual order was entered." No order was in fact entered, but the term " usual order" was shown to mean an order to pay the awards, costs of the proceedings &c. The plaintiff here rested, and the defendants' counsel moved for a nonsuit on the fol- lowing, among other grounds, viz. : 1 . That the instrument in question was not presented in due season for payment ; 2. That notice of non-payment had not been given ; 3. That the instru- ment was not negotiable ; 4. That the mayor and clerk were not legally authorized to bind the defendants by drawing the instrument in question ; and 5. That the common council had no power to issue negotiable paper for drawing funds from the city treasury. The circuit judge denied the motion, and the defendants' counsel excepted. The jury rendered a verdict for the plaintiff, and the defendants now moved for a new trial on a bill of exceptions. ALBANY, JANUARY, 1843. 265 Kelley v. Mayor &.c. of Brooklyn. W. A. Greene, for the defendants. C. DeWitt, for the plaintiff. By the Court, COWEN, J. We are of opinion that the instru- ment which the plaintiff gave in evidence is a negotiable bill of exchange. The words, " City of Brooklyn, ss. To the Treasurer of the city of Brooklyn, at &c. Pay," &c., together with the signatures, import plainly enough a draft of the city by its agents. It is payable generally to A. Lyon or order, in cash ; and the payment is not, on the face of the bill, either conditional or restricted to any particular fund. The clause, " charge to Bedford road," &c. is a mere direction as to the mode of reimbursement. {Chit, on Bills, 158, Am. ed. of 1839.) There is nothing, either in the mode of issuing or form of the draft, incompatible with the 21st section of the act to incor- porate the city of Brooklyn. (Sess. L. of 1834, p. 97.) The provision requiring an order and warrant of the common council, for drawing money from the treasury, is satisfied, if, as was the case here, a draft be authorized according to the usual course of corporate business. The word order means no more than a direction ; which may be express, or implied from acquiescence in the general practice to issue drafts on the basis of such notes or memoranda as were shown to stand in the minutes of the corporation. The draft was signed and counter- signed according to the statute, by the mayor and clerk. There is nothing in the statute expressing or implying an in hibition to make the warrants negotiable. Independently of any statute provision, a corporation may issue negotiable paper for a debt contracted in the course of its proper business. (Moss v. Oakley, 2 Hill, 265.) This is a power incident to all corporations, and no provision in its char- ter or elsewhere, merely directing a certain form in affirmative words, should be so construed as to take away the power. The draft in question was issued by the agents of the defendants, VOL. IV. 34 266 CASES IN THE SUPREME COURT. Kelley v. Cowing. acting according to the usual course in such matters. A disa- vowal by the corporation, if allowed, might operate as a fraud upon the plaintiff and upon others. The money, when drawn for, or soon after, was in possession of the corporation j and it stood a debtor to the plaintiff pro tanto. The bill was not, on its face, restricted to the particular fund arising from the Bedford road transaction ; yet, for re- imbursement, the treasurer was directed to charge that fund. As between him and the corporation, this was his proper re- source ; and, the fund being exhausted, he no longer owed it as a duty to the corporation to pay. He accordingly has not paid. At times he was in funds ; but finally they were all withdrawn by warrants from the corporation itself, the drawer of the bill and the defendant in this suit. Yet the corporation objects that the bill was not presented in due season, and that it has had no notice of non-payment. Having got the fund into their own hands, it appears affirmatively that they neither have suf- fered nor can suffer any thing for want of either presentment or notice. Neither was therefore necessary. (Harker v. Anderson, 21 Wend. 375 ; Commercial Bank of Albany v. Hughes, 17 Wend. 94, 97 to 99.) New trial denied. KELLEY & MARCY vs. COWING. In general, courts of law will not lend their aid in enforcing injunctions from chan- cery ; nor will they ordinarily take any notice of such writs, in the course of proceedings at law. Per NELSON, Ch. J. H. having made a voluntary assignment of all his efiects for the benefit of credi- tors, an injunction was obtained on a bill filed against him and the assignees restraining them from collecting or receiving any debts due to H. ; after which, C., with full knowledge of the injunction, paid to the assignees the amount of a note given them for an account which H. had against him. Held, in an action on the note by one to whom it was transferred after it became due, that the pay. ment to the assignees constituted a good defence. ALBANY, JANUARY, 1843. 267 Kelley r. Cowing. ASSUMPSIT, on a promissory note for $554,05, dated April 1st, 1837, payable to John Lay, Jr., Morris Butler and A. H. Patterson, assignees of Hempsted & Keeler, or order, four months from date. The note was endorsed by the payees to D. Tillinghast, who afterwards endorsed it in blank. The de- fence was payment. The cause was referred to a sole referee, and, on the hearing before him, the facts proved were as follows : On the 28th of March, 1837, Hempsted & Keeler executed to Lay, Butler and Patterson, a voluntary assignment of all their ef- fects for the benefit of creditors. Among the effects so assigned was an account against the defendant, for which the note in ques- tion was given. On the 4th of August, 1837, one Barnum filed a creditor's bill in the court of chancery against Hempsted & Keeler and their assignees ; whereupon an injunction was is- sued restraining them from collecting or receiving the debts due H. & K. In September following, after the service of the injunction, the defendant paid to the assignees the amount due on the note in question ; but they refused to deliver it up, alleging that the injunction restrained them from parting with it. The money received of the defendant was paid to the Clinton Bank in satisfaction of a judgment in its favor against Hemp- sted & Keeler. Barnum's judgment against Hempsted & Keeler amounted to $610,68 ; and the receiver appointed in the chancery suit [D. Tillinghast] collected over $1200, for which he had not yet accounted. A decree was finally obtain- ed in the chancery suit, setting aside the assignment as fraudu- lent. On the 25th of July, 1838, another bill was filed by one Niles against the same parties, and a common receiver appoint- ed for both suits. This last receiver sold the note in question to one Masten for $20, and he transferred it to the plaintiffs. The referee reported in favor of the plaintiffs, and the defen- dant now moved to set aside the report. , for the defendant. J. G. Masten, for the plaintiffs. 268 CASES IN THE SUPREME COURT. Kelley . Cowing. By the Court, NELSON, Ch. J. The only question in the case is, whether the payment of the note is to be regarded as having been made by the defendant in his own wrong, by rea- son of the injunction restraining the payees from collecting or receiving the debts due Hempsted & Keeler. It is a general rule, that courts of law will not lend their aid to enforce injunctions from chancery ; nor do they ordinarily take any notice of such writs in the course of proceedings in suits at law. The case of Burt v. Mapes, (1 Hill, 649,) is an authority to show that, if the payees of the note in question had instituted a suit in this court against the defendant, we should not have received the facts now set up to avoid the ef- fect of the payment, in bar of the action ; and I do not see, therefore, how we can consistently say that payment was not well made. We should have allowed the plaintiffs to go on with the suit, and left the court of chancery to deal with them as it saw fit, under the particular circumstances of the case. That court might have excused the act and overlooked the breach of its process ; at all events, we do not assume the of- fice of determining what shall or shall not be the effect or con- sequences of such a breach of its process. It is enough that the court of chancery possesses ample power to punish any un- warrantable interference with or violation of its mandates, and does not need the aid of this court. The aggrieved party has yet an opportunity to reach the assignees, and may be remu- nerated for all his damages by the infliction of proper fines, if the case be one which, in the ordinary course of proceed- ings and in the exercise of a sound discretion, would be re- garded as demanding the interference of the court of chan- cery. In Booth v. Booth, (1 Salk. 322, 6 Mod. 288, S. C.,) the court set aside an execution which had been issued after the expiration of a year without a s cire facias ; and this, though the plaintiff had been tied up by an injunction issued on the defendant's application. The court said they could not take notice of chancery injunctions. In Mitchel v. Cue, (2 Burr. ALBANY, JANUAHY, 1848. Keltey 0. Cowing. 660,) the judges refused to set aside an execution, under like circumstances ; not, however, on the ground that the court was bound to notice the injunction, but for the reason that the party should not be allowed to take advantage of his own act in delaying the plaintiff. In Gorton v. Dyson, (1 Brod. If Bing. 219,) the court entertained the argument of a cause, not- withstanding an injunction in the court of exchequer against all further proceedings in the C. B. And I observe also that, in Franklin v. Thomas, (3 Meriv. 234,) it was said to have been the opinion of Lord Thurlow, that where an injunction is obtained, even after execution levied, though it is a breach of it for the party to call upon the sheriff to pay over the mo- ney, yet, if he voluntarily pay, it is no breach of the in- junction to receive it. Lord Eldon thought that, in such a case, the person receiving the money would be ordered to pay it into court. In the case before us, the defendant was not made a party, nor was he enjoined j and it would seem from the doctrine of Lord Thurlow, that the payment by the defen- dant would, even in the court of chancery, be a discharge of the debt. Much more must it be so regarded in a court of law. Unless we are bound by some settled principles of law to take notice of this injunction, (and I think we are not,) it will certainly lead to a more just and equitable arrangement in re- spect to all parties concerned, for the plaintiffs to appeal to the tribunal whose process has been disregarded. It seems that this money has been in fact applied in payment of a debt due from Hempsted & Keeler, to whose estate the note be- longed ; and if the defendant should now be held accountable for the money, this consideration might go to mitigate his loss. Again : possibly the court of chancery would be disposed to follow out the idea of Lord Eldon, and call upon the Clinton Bank for the whole or a part of the money. The powers of that court over all the parties concerned in the payment and receipt of the money upon the note in question, are much more ample and extensive than those possessed by courts of law. 270 CASES IN THE SUPREME COURT. Kelley v. Cowing. In the exercise of those powers, the former court would be en- abled to bring out a more full developement of the circum- stances connected with the whole matter than can possibly be done here. It might, perhaps, regard the trifling sum for which the note was sold by the receiver. These consideration? should induce us to leave the question of a breach of the in junction, and its effect, to the exclusive cognizance of the court of chancery. I am of opinion, therefore, as well upon the fitness and pro priety of the thing, as upon authority, that we cannot take no tice of the injunction, and, consequently, that a valid payment of the note was established. The report of the referee must be set aside j costs to abide the event. Ordered accordingly. END OF JANUARY TEEM. nt TH* COURT FOR THE CORRECTION OF ERRORS or THE STATE OF NEW-YORK, IN DECEMBER, 1842. HANFORD vs. ARTCHER. Tho question being whether the plaintiff's title to goods in dispute, which he claim, ed by virtue of an absolute sale, was fraudulent as against the vendor's creditors under 2 R. S. 136, 5, it appearing that no change of possession had taken place, the circuit judge told the jury to enquire if any good reason had betn shown, which they could approve, why the possession had not been changed tj-r. ; whereupon a verdict was rendered in favor of the defendant : Held, that the charge was erroneous as tending to mislead the jury from the true point of en- quiry, viz. the bona fides of the transaction ; and this, though the circuit judge, in a previous part of his charge, had read the statute to the jury, telling them that the question of fraudulent intent was one of fact for their decision. WALWORTH, chancellor, dissented, holding that the party claiming under an abso- lute sale must, in addition to other proof of the bona fides of the transaction, furnish a satisfactory excuse to the court and jury for the want of a change of possession ; and that the charge in this respect was therefore proper. The circuit judge should have told the jury to enquire whether it had been shown on the part of the plaintiff, that the sale was made in good faith, and without any intent to defraud creditor* or subsequent purchasers. Per BIUDISH, prtsi- 272 CASES IN THE COURT OF ERRORS. Hanford v. Artcher. WALWORTH, chancellor, was of opinion that, upon the whole charge taken together, the question of fraud or no fraud was fairly submitted to the jury. The statute has not undertaken to define what shall be sufficient to prove good faith or an absence of intent to defraud ; but has left this to be determined by the jury, under the direction of the court, from such competent and relevant ten- timony as is presented to them according to the ordinary and established rules of evidence. Per BRADISH, president. The power of the court to decide as to the competency and relevancy of the evi- dence offered in such case, has not been impaired by the statute. Per BRADISH, president. The court, however, must decide in view of the proper issue ; i. e. with reference to the tendency of the evidence to show good faith and an absence of fraudu- lent intent, and not with reference to the mere question whether delivery was practicable. Per HOPKINS, senator ; BRADISH, president, concurring. Proof of a valuable consideration or an honest debt is essential to show good faith ; and if such proof be not given, the court may refuse to put the case to the jury, or may set aside the verdict where one has been given affirming the validi- ty of the transaction. Per HOPKINS, senator. The proof of consideration must go beyond a mere paper acknowledgment of it, such as would be binding between the parties. Per HOPKINS, senator. Over and above evidence of consideration or an honest debt, the statute contem- plates something further ; i. e. proof of circumstances showing absence of an uu tent to defraud creditors &c. Per HOPKINS, senator. For this purpose, facts tending to characterize the transaction as having occurred in the ordinary course of fair dealing, are relevant ; e. g. circumstances of publici- ty accompanying and following it, &c. Per HOPKINS, senator. So, as to facts tending to show that the party leaving the possession unchanged was actuated by motives of humanity ; e. g. a laudable desire to contribute to the comfortable support of a near relative or friend, or to aid him in a lawful business &c. Per HOPKINS, senator ; WALWORTH, chancellor, contra. Proof that a sale or mortgage of chattels is founded on a sufficient consideration, will not of itself rebut the presumption of fraud arising from the want of a change of possession ; and unless more be proved, the judge is not required to submit the cause to the jury. Per WALWORTH, chancellor. Evidence which will be sufficient to show good faith and an absence of intent to de- fraud, will also conclusively rebut the presumption of fraud which the statute raises from non-delivery of possession ; and therefore no additional evidence is necessary to account for such non-delivery. Per BRADISH, president, and HOP- KINS, senator. A full and free power of disposal of chattels is, in general, an essential and inher- ent incident of ownership ; and a vendee or assignee has the same right to leave them in the possession of the vendor, provided there be no want of good faith and no intent to defraud creditors &c., that he would have to take them into his own possession or to leave them with a third person. Per BRADISH, president. History of the law relating to conveyances of chattels made to defraud creditors ALBANY, DECEMBER, 1842. 73 H&nford v. Artchor. &.c. ; and various English and American case* on that subject, commented on. Per BRADISH, president. The case of Smith $ Hoe v. Acker, (23 Wend. 653,) reviewed, explained and approved. Per BRADISH, president, and HOPKINS, senator. The same case reviewed and further explained by WALWOKTH, chancellor, and his reasons for the vote there given by him, stated. The case of Cole & Thurman v. Whitt, (26 Wend. 511,) reviewed and comment- ed on. Per WAL.WORTH, chancellor. How far the decisions of this court are to be regarded as authoritative expositions of the law, and binding as such upon other courts in si'nilar cases, discussed and considered. Per BRADISH, president, and HOPKINS, senator. The words " actual &c. change of possession" in 2 ft. S. 136, 5, are to be inter, pretcd literally, and will not be satisfied by a mere legal or constructive delivery. Per HOPKINS, senator. Accordingly, though the vendor be suffered to remain hi possession in good faith, as clerk of the vendee, this will not relieve the latter from the onus of proving good faith in other respects. Per HOPKINS, senator. For the purpose of rebutting the presumption which the statute raises from the want of a change of possession, it is not proper to ask the vendor, in general terms, whether, so far as he is concerned, there was any actual fraud in the trkole transaction. Per HOPKINS, senator, and WALWORTU, chancellor. Semble, that the interest of a mortgagor in personal property may be lawfully seized and sold on afi.fa. against him, subject to the claim of the mortgagee, at any time before the latter has exercised his right of reducing the property to posses son. Per WAJLWORTH, chancellor. At all events, replevin in the cepit will not lie by the mortgagee against the sher> iff for the mere act of levying under such circumstances. Semble. Per WAJU WORTH, chancellor. Qucre, however, whether the action will not lie, where the sheriff levies upon the whole interest in the property. Per HOPKINS, senator. In general, objections not made at the trial cannot bo urged on a writ of error. Per WAZ.WORTH, chancellor, and HOPKINS, senator. Quere, if this be so as to objections which could not have been obviated at the trial, had they been raised. Per WALWORTH, chancellor. A judgment will not be reversed on error, merely because the judge who pronoun- ced it gave an erroneous or insufficient reason therefor. Per WALWORTH, chan- cellor. ON error from the supreme court. The action in that court was replevin, brought by Hanford against Artcher, for certain goods claimed by the former under a sale made to him by the assignees of one Norton. Artcher, being sheriff, seized the goods under aft. fa. against Norton, insisting that Hanford's title was fraudulent and void as against Norton's creditor!. VOL. IV. 35 274 CASES IN THE COURT OF ERRORS. Hanford r. Artcher. Judgment was rendered by the court below in favor of Artcher. The proceedings there, together with the leading facts of the case, are stated in 1 Hill, 347. Some additional particulars relating to the circuit judge's charge to the jury, upon which the case seems finally to have turned, will be found in the opinions of BRADISH, president, and HOPKINS, senator. 0. Meads fy M. T. Reynolds, for the plaintiff in error. J. Van Buren, for the defendant in error. WAL WORTH, Chancellor. This is one of that interminable class of cases arising upon the construction of the section of the revised statutes declaring, that sales and assignments of goods and chat- tels shall be presumed to be fraudulent when not accompanied by an immediate delivery and an actual and continued change of possession. In the cases which have heretofore come be- fore this court for decision the complaint of the plaintiffs in error has been, that the court below assumed to decide up- on the sufficiency of the evidence offered to rebut the pre- sumption of fraud, and had not submitted the question as to the fraudulent intent to the jury as a fact j of which fact, as it was supposed, another provision of the statute had made the jury the exclusive judges. But in the case now before us the principal complaint is, that the circuit judge left too much to the decision of the jury, by instructing them that it was foi them to decide whether there was any good reason shown, which they could approve, why there had not been an im- mediate delivery and an actual and continued change of pos- session. In the case of Butlei v. Van Wyck, (1 HilPs Rep. 438,) the supreme court has erroneously assumed that in Smith Sf Hoe v. Acker, (23 Wend. Rep. 653,) a majority of the members of the court had decided, that proof that a chattel mortgage or a sale of property was founded upon a sufficient consideration , was of itself enough to rebut the presumption of fraud arising from ALBANY, DECEMBER, 1842. 275 Hanford v. Artcher. a want of change of possession ; and that, if a consideration was proved, whether any excuse for the continuance of the pos- session was given or not, the question of fraudulent intent must be submitted to the jury, as a matter of which they were the exclusive judges. The property, in the case of Butler v. Van Wyck, was levied on in the possession of the mortgagor, as in the case of Smith fy Hoe v. Acker ; and as nothing is said about it in the opinions of Justices Bronson and Cowen, they probably came to the conclusion that this court had also overruled their decision on this point in Randall v. Cook, (17 Wend. 54,) and had decided that an action of replevin for an Unlawful taking could be sustained against the sheriff for levy- ing upon mortgaged property in the hands of the mortgagor, before the mortgagee had attempted to assert his right to the possession by virtue of the mortgage. I am satisfied, however, that neither of those questions was intended to be decided by a majority of the members of this court in the case of Smith, 4 Hoe v. Acker. Although the report of that case now contains an elaborate opinion of one of the senators upon this last ques- tion, it will be seen, by a reference to the opinion itself, that it must have been prepared after that cause was decided. And that the fact is so, will be recollected by such of the member* of this court as were present when the judgment in that case was given. That opinion, therefore, cannot be considered as having been adopted by the other members of this court who voted for a reversal of the decision of the court below, and who never heard of it until it appeared in the printed reports. To understand the extent of the decision intended to be made in the case of Smith <$ Hoe v. Acker, a short explanation ap- pears to be necessary. That case was not argued in this court, but was submitted upon very imperfect briefs just at the close of the session for the hearing of arguments, probably with a view of obtaining a speedy decision of the question upon which the justices of the supreme court had differed in Doane v. Eddy, (16 Wend. Rep. 523 ;) or rather what some persons supposed the supreme court had intended to decide in that and other ca- 276 CASES IN THE COURT OF ERRORS. Hanford v. Artcher. ses ; viz. that nothing short of a physical impossibility would be sufficient to excuse the immediate delivery of the property, and rebut the legal presumption of fraud. And it will be seen by the report of the case of Smith $ Hoe v. Acker, that the writ- ten opinions of Senators Edwards and Hopkins were confined to that question alone. Nor had any other member of the court except myself looked into the record for the purpose of ascertaining whether the decision of the cause at the circuit ne- cessarily turned upon that question. As it is a well settled principle that if the court below has given the proper judgment in the case, it cannot be reversed on a writ of error, although the court or judge who decided the cause has given an insufficient or erroneous reason therefor, I considered it my duty to look into the error book for the pur- pose of seeing whether the nonsuit in that case was properly granted. Upon that examination I found, or supposed I found, two unanswerable objections to the plaintiff's right to recover jn that suit ; one of which at least was of such a nature that it could not possibly have been obviated at the circuit, even if the opinion of the judge was wrong upon the question on which he based the nonsuit. Having very little time for investigating the important principle involved in what was deemed the main question, and wishing to hear it fully argued, I did not there- fore examine it at all, but placed my vote in favor of the affirmance of the judgment upon the other grounds. One of those grounds was, that the statute of 1833 had de- clared that a chattel mortgage, which was not accompanied by an immediate delivery of the property, should be absolutely void as against creditors, unless such mortgage was filed in the clerk's office as directed by that act ; and that, as the mortgage under which the plaintiffs claimed had not been filed, without unreasonable delay after it was executed, the statute of 1833 had made it absolutely void as against creditors. But what I considered a more clear and unanswerable objection to the right of the plaintiffs to recover, in Smith 4* Hoe v. Acker , was, that the revised statutes had made it the duty of the sheriff ALBANY, DECEMBER, 1842. 977 Hanford r. Artchcr. to levy upon the interest of a defendant in goods pledged for the payment of a debt. (2 R. S. 366, $ 20.) And as the sheriff had levied upon the property then in question in the hands of the mortgagor, and before the plaintiffs had claimed and ex- ercised the right to reduce it to possession by virtue of their mortgage, an action of replevin for merely levying upon the property could not be sustained ; and if the sheriff had wrong- fully detained the property from the mortgagees, after such levy, that a different action for the improper detention of the property should have been brought. (See 17 Wend. Rep. 54, and 3 HilVs Rep. 348.) I also referred the court to the notes of the revisers, to show that the 20th section of the article of the revised statutes, in relation to executions against property, (2 R. S. 366,) was intended to place the right to sell personal property mortgaged and continuing in the possession of the mortgagor, upon the same footing as real estate mortgaged, while it continued in the possession of the mortgagor. And I think I succeeded in satisfying most of the members of this court, that by the statute the sheriff was authorized to levy upon mortgaged property thus situated, and to sell the right of the mortgagor in the same, subject to the right or claim of the plaintiffs if they had any ; leaving the question as to their right, and the extent of it, to be settled between them and the purchaser. The report of the case shows that some of those members thought with me, that the nonsuit was right upon that ground ; as the objection was one which, if raised at the circuit, could not have been obviated by the plaintiffs. But the rest of the court thought that question could not be raised on the writ of error ; inasmuch as the judge at the circuit had placed his decision upon another ground. Nothing therefore can be considered as having been decided in that case b- this : that where the prima, facie evidence of fraud, arising from the non-delivery of the property, is rebutted by proof that the whole transaction was fair and honest, and that there was no intention to delay or hinder creditors in the collection of their debts, it is not absolutely necessary to show the impossibility 278 CASES IN THE COURT OF ERRORS. Ilanford c. Artchcr. of an immediate delivery of the possession of the property, in addition to such proof. The case of Cole $ Thurman \. White, (26 Wend. Rep. 511,) was decided upon a different ground. The property mortgaged in that case was an undivided interest in a vessel which was absent on a voyage to the upper lakes at the time of the execution of the mortgage ; and the vessel was also run for the season by the mortgagors upon the joint account of themselves and the other owners. An immediate delivery of the property to the mortgagees was therefore not only impos- sible, from the absence of the vessel, but would also have been inconsistent with the rights of the other part owners, who were authorized to insist upon the performance of the agreement to run the vessel for the season, on the joint account of the owners. I placed my vote, in that case, also upon the ground that the ad- mission of the plaintiff's counsel that the debt for which the mort- gage was given was actually due and that the mortgage was given at the solicitation of the mortgagees for the purpose of securing that debt, was equivalent to an admission that the se- curity of the debt was the sole object of the giving of the mort- gage, and not the ostensible object merely. There is nothing, therefore, in either of the decisions refer- red to, from which it can properly be inferred that a majority of the members of the court ever intended to decide that, upon mere proof that a sale or assignment of goods was upon an adequate consideration, the jury was legally authorized to find that the sale or assignment was valid, although it was not ac- companied by an immediate delivery of the property and an actual and continued change of possession. On the contrary, Senator Hopkins, in his opinion in Smith Sf Hoe v. dicker, dis- tinctly states that the statute throws the onus upon the party claiming under the sale or mortgage, not accompanied with an actual delivery of possession, of proving not only that the transaction was in good failh, for a good and valuable consider- ation, but also such circumstances of publicity and reasonable- ALBANY, DECEMBER, 1842. 2 ?9 Hanford r. Artcher. ness as to amount, time, value, and quantity of property, diffi- culty or inconvenience of removal, advantages of allowing it to remain, or other circumstances agreeable with the ordinary course of business and fair dealing, as shall satisfy the jury that there was not any intent to defraud, hinder, or delay creditors. And even in the published opinion of Senator Verplanck, who I believe has gone as far as any member of this court has ever yet gone in sustaining sales and assignments of proper- ty without a change of possession, he says : " A valuable consid- eration, when satisfactorily proved, affords a strong indication of good faith ; but still, this alone may not be inconsistent with the possible existence of a collusive design to impose upon others. As it is to be made manifest that there was no such design, there should be evidence of some fact inconsistent with that intent." It is true he follows this by an intimation that proof of mere family kindness will be sufficient to rebut the presumption of fraud, or proof of other facts which could al- ways be adduced by the parties to a fraudulent sale j the effect of which construction of the statute would be to defeat the whole object and intent of the legislature. The legislature has declared that the question of fraudulent intent, in all cases arising under the statute, shall be a question of fact ; not, as some have erroneously supposed, a question which must in all cases be submitted to the jury, whether there is or is not sufficient legal evidence to support the charge of fraud on the one hand or to rebut it on the other, where the onus of disproving it is thrown by law upon the purchaser or mortgagee. But the legislature has merely declared the question of fraud to be one cf fact, as contradistinguished from a question of law. To elucidate this distinction, it is only necessary to allude to the case which gave rise to the provision of the revised stat- utes declaring that the question of fraudulent intent shall be one of fact. (See 3 R. S. 658, 2d ed.) In that case, (Jack- son v. Sewardj 5 Coven's Rep. 67,) a father who owed some debts and had a large property, made a voluntary conveyance 280 CASES IN THE COURT OF ERRORS. Hanford v. Artcher. or gift of a part of his property to one of his sons, but leaving, as he then supposed, ample funds in his own possession and control to pay all his debts, and to provide for the future support of himself and his family. From unforeseen occur- rences he was subsequently charged and rendered personally responsible for a large debt arising from a contingent liability created before the conveyance. And though it was admitted on the trial, and was afterwards found in the form of a special verdict, that the conveyance was made without any intention of delaying or defrauding any of his creditors, the supreme court, in accordance with the decision of Chancellor Kent in Reade v. Livingston, (3 John. Ch. Rep. 481,) held that the voluntary deed to the son was fraudulent in law as against creditors then existing, and that no proof could rebut the legal presumption of such fraudulent intent. The correctness of those decisions was questioned when the case of Seward v. Jackson came before this court, though the decision here ap- pears to have turned upon a different question. It is admitted, however j by the revisers, in their note to that section, that the modern cases in England fully established the doctrine of Chancellor Kent, that voluntary conveyances were absolutely void as against existing creditors and subsequent purchasers. And this section of the revised statutes, declaring that the ques- tion of fraudulent intent, in all cases arising under the provis- ions of that chapter, should be deemed a question of fact and not of law, was introduced for the express purpose of letting in proof in such cases to rebut the legal presumption of fraud- ulent intent arising from the fact that the conveyance was not founded upon a valuable consideration. It is true, this section, when it was drawn by the revisers, was not intended to apply to the case of a sale or assignment of personal property with- out delivery and an actual and continued change of posses- sion j for, in relation to that they had adopted the only safe and effectual mode of guarding against frauds of that charac- ter, by declaring all such sales and assignments absolutely void as against creditors and subsequent purchasers. If the ALBANY, DECEMBER, 1842. 81 Hanford t>. Artcher. legislature had followed this recommendation of the revisers, they would have prevented innumerable frauds which are con- stantly practiced under pretended sales, assignments for the alleged benefit of creditors, and chattel mortgages ostensibly given to secure honest debts only, when, in two cases out of three, such mortgages are given for the purpose of enabling the mortgagor to retain the use of his property for a longer period, and to prevent its being levied upon by creditors who are pressing for the payment of their honest dues. It wouU also have saved to the people of the state the immense sums which are now annually spent in litigating the question of fraudulent intent in such cases. But the legislative power, in its wisdom, thought otherwise j and, by the alteration of this provision from that which was recommended by the revisers, has, as I think, made the fourth section of the third title appli- cable to it. There is no reason however to believe that the legislature, by either of these provisions, intended to change the law in re- lation to the manner in which matters of fact were to be tried and decided, or to give the jury in such cases the absolute and sole right to judge of the materiality or the sufficiency of the evidence to establish an intention to defraud, or to rebut the pre- sumption of such intention when it was necessary to do so. The questions whether the defendant made a promissory note, and whether he has paid it, are, equally with the questions of intent arising under this statute, questions of fact and not of Jaw. But it is still the duty of the court to decide what is proper evidence to prove that the defendant made the note, or to establish the fact that it has been paid ; and also to decide whether the plaintiff has introduced sufficient evidence of the making of the note to authorize the jury to find a verdict in his favor, and if not, to nonsuit the plaintiff. On the other han-i. if the making of the note is established, and the evidence on the part of the defendant is wholly insufficient to authorize a jury to find the fact of payment, it is not only the right but the VOL. IV. 36 282 CASES IN THE COURT OF ERRORS. Hanford B. Artcher. duty of the court so to instruct them, if requested to do so by the counsel of the other party. So in cases arising under the statute of frauds, where the act in question is not necessarily fraudulent, but depends altogeth- er upon the intent with which it was done, if the party who is bound to rebut the presumption of fraud arising from the non- delivery of the property, by proving that the assignment was made in good faith and without any intent to delay or hinder his creditors in the collection of their debts or to defraud them or subsequent purchasers of the property, wholly fails to give such evidence as the settled principles of law require, to rebut the presumption of fraud, it is the right of the court to say so. But if the proof is sufficient in other respects to rebut the pre- sumption that there was any intention to delay or hinder credi- tors in the collection of their debts, and a satisfactory reason is given for the non-delivery of the property, which is consistent with the honesty of the transaction, I think it is not necessa- ry that an impossibility to make an immediate delivery of the property should be proved, to authorize the jury to find there was no fraud in the case. But, as in other questions of fact, every case must in some measure depend upon its circumstances. The statute, however, has made the non-delivery of the pro- perty evidence of fraud j as the retaining of possession, after an absolute sale or assignment, without any good reason shown therefor, is inconsistent with the supposition that the vendor did not intend to secure a benefit to himself from the temporary use or management of the property. And a reservation of such a benefit to himself, where the property by the sale or assign- ment is placed beyond the reach of creditors, is of itself a fraud upon such creditors ; as it does delay and hinder them in the collection of their debts. In the case of an absolute sale or assignment, therefore, I think it is necessary, in addition to other proof of the bona fides of the transaction, to furnish a satisfactory excuse to the court and jury for the non-delivery of the property. And certainly, proof that it was necessary or convenient for the defendant or his family to have the use of ALBANY, DECEMBER, 1842. Hanford c. Artcher. the property which he has sold and received his pay for, or that he can sell and dispose of it more beneficially than the trus- tee to whom he has entrusted the sale by his assignment, is not such a reason as should be satisfactory to any one. For those are reasons to show that he would not have sold or assigned the property at all, unless his real object had been to place the property beyond the reach of his creditors, and thus to delay and hinder them from collecting their debts. And when a debtor in failing circumstances, whose property is about to be levied upon by one creditor, mortgages it to another for the purpose of preventing such levy, thereby securing to himself the temporary use and benefit of the property, it is a fraud upon the first creditor, although such mortgage is given to secure an honest debt. The debtor has a right to prefer one creditor to another ; but he has neither the legal nor the moral right, in giving such preference, to do it in such a way as to secure a benefit to himself at the expense of the creditor who has a right to his debt immediately, and who may himself perhaps be ruined by being deprived of the use of his money, while the debtor is thus delaying payment to obtain a better price for his property or to secure to himself the advantage of the temporary use of it. For these reasons I think the circuit judge was right in sub- mitting the question to the jury, as a proper subject for their consideration, whether the plaintiff had shown any good reason, \vhich was satisfactory to them, why there had not been an immediate delivery of the property and an actual and continu- ed change of possession, in case they should find that it con- tinued in the possession of Norton until it was levied upon by the execution. Besides, upon the whole charge taken together, I think the question of fraud or no fraud was fairly submitted to the jury as a question of fact for them to decide. And unless this- court is prepared to place itself in the absurd position of saying that the judge is to decide the question of fraudulent intent wherever there is any danger that the jury may be against the 284 CASES IN THE COURT OF ERRORS. Hanford v. Artcher. party on whom the onus of disproving the fraud lies, and is only to submit the question to the jury when they will proba- bly find in favor of the bona fides of the transaction, this ver- dict cannot be disturbed on the ground that the case was not properly submitted. The question whether the employment of Norton as clerk, and the management of the property by him, was bona fide, or whether the original assignment and the sale to Hanford and the putting in of Norton to manage the concern, was not a mere de- vice to cover up the property and place it beyond the reach of creditors, was a question of fact for the jury to decide. The judge was right therefore in refusing to charge as requested in relation to that matter. Nor would it have been proper, after the charge which had been given, for the judge again to have charged the jury upon the other point, which was necessarily embraced in the instructions already given to them j especially as this new proposition was couched in language which was intended to draw the attention of the jury from what the stat- ute had declared to be conclusive evidence of fraud until the contrary was proved. The question put to the witness Russell was properly over- ruled . The statute having declared what should be the legal evi- dence of fraud, and thrown upon Hanford the onus of proving that the assignment was made by Norton in good faith, without any intent to defraud his other creditors, that presumption of fraud could not be disproved by a general answer of the assignee that there was no fraud in the case, so far as concerned himself. The witnesses must state facts, and are not to be required or permitted to answer leading questions which involve the whole matter in issue in such cases. It is not necessary for me to say whether I should have ar- rived at the same conclusion that the jury did upon the ques- tion of fact involved in this case. But as I am perfectly satisfied that no legal principle has been violated which can justify this court in reversing the judgment for error in law, I do not feel authorized to usurp the province of the jury in this case, and ALBANY, DECEMBER, 1842. Hanford c. Aiteber. to reverse the judgment because the jury may have decided wrong upon a matter of fact. I shall, therefore, vote for an affirmance of the judgment. HOPKINS, Senator. This court in the case of Smith & Hoe v. Jlcker, (23 Wendell, 653,) decided two important questions arising under the revised statutes relative to sales and mort- gages of personal property not accompanied with, delivery and change of possession. First, that the party claiming under such sale or mortgage may rebut the presumption of fraud aris- ing from want of delivery and change of possession, by prov- ing that the transaction was in good faith and without any in- tent to defraud creditors not by showing some mere excuse or reason that had been deemed necessary by the supreme court, why there had not been a change of possession, but by proper and relevant testimony to show the real bona fides of the trans- action. And second, that the question of intent arising in the case, is one of fact for the jury to try. In the present case, the circuit judge so far conformed to that decision as to submit the cause to the jury ; and the ques- tion remaining is, did he submit the whole bona fides of the case to their consideration ? Or did he not rather, in his charge, limit the consideration of the jury, (in case they found that possession of the property had not been changed,) to the mere enquiry whether there was any excuse, or, to use his own language, " any good reason," why possession had not been changed ? In his charge he instructed the jury that " if they found that the property remained in the possession of Norton until levied on, then they must enquire whether there was any good reason shown by the plaintiff which they could approve, why there had not been an immediate delivery and an actual and continued change of possession." Again, after referring to former decisions of the supreme court to show what had been decided to be good reasons, " he further directed the jury that if they found sufficient reasons for the possession not being changed, then their verdict must be for the plaintiff." Al- 286 CASES IN THE COURT OF ERRORS. Hanford v. Artcher. though in one part of his charge he says, " that it is competent for the plaintiff to rebut the presumption of fraud by showing thai the assignment was made in good faith and without any intent to defraud creditors," he qualifies the expression by adding in the same sentence, " that the presumption of fraud arose from failure to accompany the assignment with delivery and change of possession ; that it was for the plaintiff" to ex- plain such failure, if the jury thought it had occurred, and to show some good reason for it. If he had so done, the jury would find a verdict for the plaintiff; otherwise, their verdict would be for the defendant." Thus, in concluding his charge, having informed the jury what the supreme court had decided to be good reasons to explain failure of delivery and change of possession, he, in substance, the third time, instructed the jury that it was necessary for the plaintiff to explain such fail- ure, if it had occurred, and show some good reason for it ; and upon this their verdict must depend. He seemed to put the whole issue upon, this point, and in substance declared to the jury not only that such good reason for want of change of possession was Jiecessary, but that it was all that was necessary. He does not instruct the jury to en- quire whether there was any consideration even or indebted- ness. Nothing was required and nothing allowed to rebut the presumption of fraud, but some good reason why possession was not changed. This is more clearly evident w r hen, upon be- ing requested, the judge refused to charge specifically, without the qualification as to the good reason, " that if from the facts proved and given in evidence, they believed that the saie was in good faith and without any intention to defraud creditors, such sale was valid." But even if he did not intend to instruct the jury that such proof of good reasons for non-delivery was necessary, yet the charge was eminently calculated to mislead the jury in that respect. If, under charges like this, juries may be tied down to the consideration of good reasons required by the court, to excuse a want of delivery, and are prevented from considering the whole bona fides of the case, the statute ALBANY, DECEMBER, 1842. Hanford r. Artcber. is as much nullified as if the court refuse to submit the case to the jury at all, but, as heretofore, take it into their own hands. The same result is arrived at, only in a different way. The case is in form submitted to the jury, but under instructions leading to the same final result as if decided by the court. The trial of the cause took place prior to the decision of this court in Smith <$ Hoe v. Acker ; and it is not surprising that the charge of the judge is found to conform to the opinions of the supreme court. Since that decision, it is hardly reasona- ble to suppose that such a charge would be given, unless, pos- sibly, some circuit judge should be found to concur in the views of the learned justice who delivered the dissenting opin- ion in the case of Butler v. Van Wyck, (1 Hill, 438,) and de- ny the authority of the decisions of the court of last resort as conclusive upon inferior tribunals whose decisions are subject to its review and correction. Since such a doctrine has been gravely argued as regards the decisions of this court, and an attempt made particularly to lessen the force of the decision in the case of Smith if Hoe v. Jlcker as authority settling the law of the question arising under the statute, it uiay not be improper to make some re- marks vindicating the decision of this court in that case. It may have been supposed that the case did not have the con- sideration which the importance of the question merited. It is erroneously stated by the learned dissenting justice, that but one opinion, which (with how much propriety it does not per- haps become me to say) is calied the " prevailing opinion," was delivered on that occasion whereas, in fact, several opin- ions were read and delivered, fully concurring in the principal points decided. Senators Verplanck and Edwards examined the question at much length and with their usual ability, com- ing to the same conclusions. The members expressed their opinions perhaps more freely than usual in deciding cases iti this court. Twenty-one members, being eveiy member pres- ent who voted upon the principal question, voted for reversing the decision of the supreme court. Four members voted for 288 CASES IN THE COURT OF ERRORS. Hanford t>. Artcher. affirmance, but expressly, as appears by the report of their opin- ions, upon other grounds on points not raised at the trial, nor considered in the supreme court, nor in the argument in this court. Of the four who voted for affirmance, not one expressed any opinion dissenting from the views of the majority on the main question, or concurring with the opinion of the supreme court. Indeed, as regards the vote upon the principal questions decided, it may be said to have been unanimous or very nearly so. But it seems to be contended, that the decision of this court in that case ought not to be deemed authority, because certain ancient decisions were not sufficiently heeded or alluded to in the " prevailing opinion" decisions which, it is admitted by the. learned dissenting justice himself, were made before the revised statutes under which the question arose took effect. The cases of Sturtevant v. Bollard^ (9 John. R. 337,) and Div- ver v. McLaughlin, (2 Wendell, 596,) are cited to show that the question of fraud, arising from non-delivery, is a question of law for the court to decide. Now it was wholly unneces- sary to refer to any decisions to discover such to be the case, for the statute itself declares that, the possession being un- changed, fraud shall be presumed ; and that of course is a question of law, or a legal presumption for the court to de- clare. But the statute, by a further provision, permits a ques- tion of intent to be raised to rebut this legal presumption of fraud ; and this question of intent, the statute expressly de- clares shall be a question of fact and not of law. Again, an expression in Twyne's case is quoted to show " that continua- tion of possession in the donor is a sign of a trust" of course not positive evidence, but a mere sign of a trust. Now it was equally unnecessary to refer to any authority on this point ; for our statute is sufficiently explicit, and makes it not merely a sign of a trust) but declares it presumptive evidence of fraud. But the further provision of the statute allows the presumption of fraud to be rebutted by evidence of good faith j which pro- vision the decisions of the supreme court declare means noth- ALBANY, DECEMBER, 1842. 289 Hanford t>. Artcher. ing, or at least something entirely different from what its lan- guage plainly imports. It was equally unnecessary to look into the prior decisions to discover that the object of the stat- ute was to provide a remedy for more easily establishing fraud, by presuming it in the first instance, in transactions which, however, if shown to be free from fraud, are to be upheld as legal. A partial reference to a remark of the kind contained in the "prevailing opinion," seems to be made the ground of an inference that the decisions upon the question might not have been examined an inference contradicted by the whole tenor of the opinion itself, which not only acknowledged the embarrassments arising from the decisions and conflicting opin- ions with which legal talent had already encumbered the re- ports, but was itself mainly occupied by an examination of the leading cases decided in the supreme court since the existence of the statute under which the question arose. The senator who is said to have delivered the "prevailing opin- ion" stated in the outset, that the question arose under the revised statutes; and although he conceded, as a reason for examining the question at much length, that his views conflicted with the course of decisions of the supreme court, which he nevertheless contended to be erroneous, the remark was of course made with reference to the decisions of that court since the passage of the statutes under which the question arose. To infer, from that remark, a general admission that the decisions of the su- preme court on the subject, including decisions prior to the re- vised statutes, had been uniform, is as clear and palpable a misconstruction of its meaning, as was the effort illogical and un- just to make the same remark of a single senator the ground of an argument or charge that this entire court had avowedly dis- regarded a uniformity of decisions known not to exist. It is needless to say that many of the decisions made prior to the revised statutes on the same subject, (though not on the same question, which could not arise till after the revised statutes,) did not conflict with the doctrine of the " prevailing opinion," but sustained it. (See Barrows v. Paxton, 5 John. R. 258 ; VOL. IV. 37 290 CASES IN THE COURT OF ERRORS. Hanford v. Artcher. Beats v. Gurnsey^ 8 id. 452 ; Bissell v. Hopkins^ 3 Cowen, 188.) The decisions prior to the revised statutes, so far as applicable at all, not only in many instances conflict with the later decisions of the supreme court, but often with each other, leaving the law in fact unsettled and uncertain ; and it was to relieve it from this uncertainty that the provision was intro- duced into the revised statutes of 1830, putting the question (if indeed there need to have been any question left) upon quite different grounds from what it had been. The still later act of 1833, requiring mortgages of personal property to be filed, when not accompanied with delivery of possession, was also deemed to have affected the question, as amounting to a legislative ex- pression, that such mortgages are to be deemed valid if the requirements of the legislature in regard to them are complied with j that is, if the party claiming under such a mortgage shall show it to have been made in good faith, and also that he has given public notice of its existence by filing the original or a copy thus, to some extent, making the question of still more recent date. The decisions of the supreme court, annulling, as it were, the provisions of the revised statutes, it is believed were very gen- erally considered by the bar to be erroneous, and not as having settled the law upon the subject. Even so late as January term, 1837, only the year before the case of Smith fy Hoe v. Acker was tried, the learned chief justice of that court, in his dissenting opinion in Doane v. Eddy, (16 Wend. 529,) held the doctrine settled by this court in Smith 4* Hoe v. Acker to be the true doctrine. The same opinion was entertained by the late Chief Justice Savage. Nor has the doctrine of the two asso- ciate justices of that court been wholly acquiesced in. The case of Stoddard v. Butler, (20 Wend. 507,) which came here on appeal from the court of chancery, involved the same question, connected however with a question of fraud in fact. In that case the question was very ably examined. The decisions, an- cient and modern, were reviewed at great length and with emi- nent ability by Senator Dickinson, now chosen to preside over ALBANY, DECEMBER, 1842. 291 Hanford t>. Artcher. the court of which he was then a distinguished member, and also by Senator Verplanck, another distinguished member of the court, both coming to the conclusion that the decisions of the supreme court on the question were erroneous. It is said that a majority of the members were of the same opinion ; but as some who concurred with them on that point voted upon the ground of actual fraud, the court, was divided and the question consequently left as unsettled as ever ; except that the impression gained strength, that if a case should be brought to this court free from other questions, the doctrine of the supreme court would be overruled as in fact was the case upon the first opportunity that afterwards occurred. Three members of the court, the President and Senators Tallmadge and Edwards, who voted for affirmance in that case, afterwards voted for reversal in the case of Smith 4* Hoe v. Acker; and two of them declared on that occasion that they should have voted for reversal in the case of Stoddard v. But- ler, only that they voted on other grounds. So if that case had presented the naked question, it seems that it too would have been reversed. And yet that case is cited by the learned dissenting justice, to show that the question had been settled by this court in favor of the supreme court rule. Other high judicial tribunals, however, of this state, seemed to view it differently ; and, even before the decision of this court in Smith 4* Hoe v. Acker, wholly rejected the doctrines of the supreme court, or, it should rather be said, of a majority of that court, on the question. See Lewis v. Stevenson, (2 Hall, 63,) decided in the superior court of the city of New- York in June term, 1839, and Lee v. Huntoon, (1 Hoffm. Ch. R. 447,) decided by the able assistant vice-chancellor Hoffman, February, 1840. With what propriety, then, can the decisions of the supreme court be said to have become the settled law of the land, and not subject to be examined and overruled by a court expressly con- stituted for the purpose of reviewing and correcting the erro- neous decisions of that and other courts ? And such, too, are the decisions constituting "the shackles of legal authority , n 292 CASES IN THE COURT OF ERRORS. Hanford o. Artcher. which, it is complained, were thrown off in deciding the case of Smith fy Hoe v. Jlcker. But it is also argued by the learned dissenting justice, that the omission of the legislature of 1839 to pass a law legal- izing mortgages of personal property without a change of pos- session, is to be taken as a legislative construction in favor of the supreme court rule. If any thing can legitimately be inferred from this omission, it would rather seem to be that the mem- bers of the legislature were of opinion that no further legisla- tion was necessary to legalize all that could be proved to be fair and honest ; or possibly they thought the law to that effect could not be made plainer, and if not already understood or heeded by courts, it would be useless to pass any further law upon the subject, or to endeavor to bring the law within then comprehension. At all events, it appears that the very next year, one branch of the legislature, in its judicial capacity, consisting of at least three fourths of the same persons who composed it in 1839, did, in deciding the very case of Smith fy Hoe v. Jicker^ give a construction quite at variance with the supreme court doctrine j since which, two sessions of the legis- lature have passed, silently acquiescing in that decision. It is believed too, that one of the members of this court who con- curred in that decision, was a distinguished member of the le- gislature, if not one of the revisers, at the time the provision of the revised statutes under which the question arose was adopted, and that he took part in its adoption. If, then, any thing is to be inferred from legislative action or inaction, it can hardly be in favor of the supreme court rule But other objections have been urged against the correctness of the decision in Smith Sf Hoe v. Jlckw. One, that the mort- gage was not filed in due time, when, in fact, it is stated in the case to have been regularly filed, and no question was raised in relation to it on. the trial or in argument. Another objection not raised on the trial or in argument was, that the mortgagor had an equitable or redemptionary interest, which the sheriff had a right to sell. But, from the case, it would seem that he O I t ALBANY, DECEMBER, 1842. 293 Hanford c. Anchor. levied on the whole interest in the property j and besides, the learned dissenting justice in Butler v. Van Wyck, raised an ob- jection inconsistent with the last, viz. that the mortgage was due and the title of the mortgagor forfeited, and urged as a feature of fraud, that the mortgagor was allowed to remain in pos- session nine months after the title had become absolute in the mortgagee. This was a circumstance proper, perhaps, for the consideration of the jury, and was, with the explanation in that case, submitted to the jury j but the supreme court rule would exclude it from all consideration. It is also said that the use of the property while so remaining in the hands of the mortgagor must have been worth several hundred dollars to him. Was that not better than to have delivered it to the mort- gagee who could not use it at all to remain a dead pledge, of no benefit to any one 1 Cases are cited to show that this court and other courts sometimes overrule their own decisions, and it seems therefore to be inferred, that the supreme court may also overrule or dis- regard the decisions of this court. If such is a proper infer- ence, with how much more propriety may it be inferred that this court, created for the purpose of reviewing decisions of the supreme court, may overrule the erroneous decisions of that court. To insist that the decisions of a court whose judgments are the subject of review by another tribunal, which decisions, not having been wholly acquiesced in, have been overruled by the reviewing tribunal, and upon a question arising under a statute of not long standing, are still to be held as authority paramount to the decisions of the reviewing tribunal, evinces how difficult it is, even for those distinguished for their legal attainments, acuteness of intellect and the purity of their intentions, to free themselves from the influence of early opinions. And without intending any reflection upon the profession to which I belong, it may perhaps be said to evince the wisdom of the framers of our constitution, in permitting to be brought into the court of last resort, the plain good sense and unbiassed sound judgment 294 CASES IN THE COURT OF ERRORS. Hanford . Artcher. of the laity to mingle with the talent and legal erudition of the profession, who nevertheless may be liable to bring with them to the bench the errors of prejudged opinions formed at the bar. If the decisions of this court made upon argument and due deliberation, under circumstances where there can be no doubt as to the point decided, are not to be held as authority, conclu- sive in tribunals whose decisions are subject to its review, the result must be a series of perpetual conflicts and a " glorious uncertainty of the law." At all events, it would not seem pre- sumptuous for a tribunal, devised by the framers of the consti- tution as the court of last resort in the state, constituted almost entirely of one branch of the legislature, to claim for its decis- ions some force of authority, when passing upon the intention and meaning of legislative enactments ; and I am happy to know, that the majority of the supreme court, in deciding the case of Butler v. Van Wyck, has recognized the decision of this court as authority, settling the law of this much agitated question. And it is hoped that the learned justice who dissent- ed in that case, however much he may insist that the decisions of this court may be disregarded, will not, to use his own lan- guage, "throw off the shackles of legal authority" imposed by the court of which the learned judge himself is a distin- guished member. It has been remarked by Mr. Justice Cowen, that, since the decision in Smith $* Hoe v. Acker, almost any excuse might be shown why possession was not changed, and that the court could have no proper control over the testimony. I am not aware that any thing there decided or said by way of argument would justify so broad an inference. Although what is called the " prevailing opinion" claims for the jury the right to decide upon the weight of evidence, it expressly yields to the court the right to decide upon the relevancy of the testimony offered ; but it must of course decide with reference to the proper issue, that is, with reference to its tendency to show good faith and ALBANY, DECEMBER, 1842. 295 Hanford r. Artchcr. absence of fraudulent intent in the case, and not with refer- ence to the mere question whether delivery was practicable. The difference between this court and the supreme court was not so much as to what particular evidence should be received or rejected, as what the question was to be tried, and who should try it. This court says that the case involves a ques- tion of intent, which, under the statute, the jury are to try. The supreme court has insisted that the issue was, whether de- livery was practicable, and that the court should try it. It now being settled that the issue to be tried is, in part at least, a question of intent, it follows that proper and relevant testimo- ny to show the intent is to be submitted to the jury. " The court decides whether there is any evidence ;" or, in other words, whether the evidence offered is relevant to show intent, " and the jury decides whether it is sufficient." (1 Phil. Ev. 15.) I do not discover why there need be more difficulty in trying questions of intent in these cases before a jury, than other ques- tions of intent required to be so tried, or a case of fraud where there has been a delivery. Indeed, there would seem to be less difficulty, inasmuch as in these cases, fraud is presumed in the outset, and the party objecting to the sale or mortgage is relieved from the burden and difficulty of proving it. Fraud is presumed ; that is, if possession was not changed, it is pre sumed that the sale was without consideration or without an adequate one, and also that there was some secret trust or an intent to defraud creditors. To rebut this presumption, the statute imposes upon the party claiming under the sale or mort- gage, the burden of proving not only that it was in good faith, but that it was without any such intent to defraud creditors. Proof of a valuable consideration or an honest debt is essen- tial to show good faith; and if there be no such proof, I take it that the requirement of the statute in this respect is not complied with, and that the court may order a nonsuit, or, if a verdict be found, set it aside, just as it would be bound to do in a mortgage case if a copy had not been filed nor notice shown. Such proof of consideration too must go beyond a 296 CASES IN THE COURT OF ERRORS. Hanford v. Artcher. mere- paper acknowledgment of it, that might be binding be- tween the parties. But over and above evidence of consideration or an honest debt to show good faith, the statute seems to contem- plate something further, that is, proof of circumstances showing absence of intent to defraud creditors such circumstances as would show that the transaction was in the ordinary way of fair dealing and with reasonable publicity under the circumstances j if a commercial assignment, that notice was published, or given to the creditors; in a mortgage case, that a copy was filed, or notice brought home to the creditor or such other relevant circumstances as the case may reasonably admit of, to satisfy the jury that the transaction was without any intent to defraud creditors. The admissibiiity of proof of circumstances showing that the party, leaving possession unchanged, was actuated by motives of humanity or friendship arising from family connexions or other laudable motive of the kind, is a subject that has been dis- cussed. So far as such circumstances go to show absence of fraudulent intent, I do not see why they are not admissible. If it appear simply that the parties are family connexions or confidential friends, so far as my observation has extended, it has been considered by juries, no less than by judges, as strength- ening the presumption of fraud, inasmuch as the transaction is between persons with whom a secret trust is likely to exist. But if facts or circumstances be proven, showing that there was some necessity, reasonable fitness or propriety for leav- ing possession unchanged in order to carry out some pur- pose of humanity a laudable desire to contribute to the comfort- able support of a near relative or friend, or to aid him in a law- ful business, or other laudable object consistent with honest intent the presumption of a secret trust or intent to defraud would probably be overcome in the minds of the jury. Fraud may be proved by circumstantial evidence. (Waterbury v. Sturtevant, 18 Wend. 353.) Why then, when presumed, may it not be rebutted by circumstantial evidence 1 In connection with testimony of good faith, no doubt reasons ALBANY, DECEMBER, 1842. 297 Hanford t>. Artcher. may properly be shown why possession was not changed ; but it was no where contended in deciding Smith tf Hoe v. Acker^ as was supposed on the argument of the present case, that such reasons were necessary, if a case of good faith and absence of fraudulent intent was otherwise made out. In a case where it should appear that the property might have been delivered, and no reasons of convenience or advantage, nor circumstances showing the party to have been actuated by motives of humani- ty or other laudable motive consistent with honest intent, are shown why the possession was not changed, it would no doubt require a very clear case of good faith in all other respects, to satisfy the jury that all was honest and fair. A question was raised on the argument as to the meaning of the word " actual" contained in the statute on this subject. I think it was intended to have a literal meaning ; otherwise it is sur- plusage. If a constructive or mere legal delivery , without a literal actual one, may be deemed an actual delivery, the ob- ject of the statute to change the onus probandi and compel the party to show good faith is easily defeated. A mere paper transfer, valid on its face, may be shown, accompanied by a formal or mere legal delivery, while the vendor is left in the ac- tual possession or control as clerk ; and then, if this legal deliv- is to be deemed an actual one within the meaning of the statute, no presumption of fraud arises, and itwould not be necessary for the party claiming under the sale, to show even a consider- ation or any other evidence of good faith. His paper title, with this kind of actual delivery, would be sufficient ; that is, a sale binding on the parties to it would be obligatory upon creditors, and the object of the statute by raising a presumption of fraud to compel the party to show good faith, would be defeated. For these reasons I am of opinion that the circuit judge cor- rectly refused to charge as requested under the second and third instructions. So long as Norton was allowed to be in possess- ion or control of the goods, although in good faith as clerk, there was no actual change of possession so as to relieve the plaintiff from proving good faith in all other respects. In VOL. IV. 38 298 CASES IN THE COURT OF ERRORS. Hanford r. Artcher. showing good faith generally, it was no doubt proper to prove that Norton was employed in good faith as clerk. The judge might properly have charged the jury, that if they found that Norton was employed as clerk, in good faith, that would not render the sale void, provided they found the sale to be in good faith in all other respects. Probably, in showing that Norton was employed in good faith, it would appear that the transac- tion was in good faith in other respects ; but such might not be the case. The plaintiff might have shown a mere paper sale and that Norton was employed in good faith as clerk, and yet not be able to show any consideration, indebtedness or publicity. As to the meaning of the word " actual," as used in the statute, see also Camp v. Camp, (2 fli7/,628.) I am also of opinion that the judge correctly overruled the question put to the witness Russell as to his intentions. I think, however, that the judge erred in his charge to the jury. He no doubt intended to put the cause, as far as the case would admit, upon the grounds of the supreme court decisions which have since been overruled by this court. Even in submitting the case to the jury, he evidently did it under the impression that a constructive or mere legal change of possession, of which there was some proof, might, if found by the jury, be taken as an actual change. If there had been no evidence of such constructive change of possession, the judge would, without doubt, have withheld the case from the jury and have nonsuited the plaintiff under the supreme court rule ; but there being some evidence of such delive- ry, he let the cause go to the jury, but limited their consid- eration, in case they found there was no such delivery, to the mere enquiry whether there was any good reason for it. He did not even instruct them that it was necessary to enquire whether there was any consideration or indebtedness. He prob- ably had not learned that the supreme court rule required proof of consideration ; and, although it is complained that the rule of the supreme court has been misunderstood in that re- spect, yet I think it may well be inferred from its decisions and opinions that all that would be required, to take a case out ALBANY, DECEMBER, 1842. Hanford r. Artober. of the statute, was proof that delivery was impracticable. ' : Nothing can take a case out of the operation of the statute, unless the attempted explanation relate to the possession of tk* property." " There must in all cases, where practicable, be a change of possession" (20 Wendell, 521.) " The only question of fact here, is about the possession." (19 Wcnd.4Al.) At all events, in the present case, the circuit judge, whose decision is approved by the supreme court, seemed so to understand the rule, and in his charge, without a word about proof of con- sideration, he twice distinctly told the jury that if they found any good reason lor the possession not being changed, their verdict must be for the plain tiff, otherwise it would be for the defendant. Although I think the verdict wrong, yet with the bona fides of the case we hare nothing to do. They are for the jury to find whenever they shall have an opportunity to do so upon a full consideration of the case. I think the judge intended to restrict them in their consideration of the case to the mere reasons for non-delivery of possession, or at least that the jury might reasonably have inferred so from the charge, and probably so understood it. I also think that the charge in this respect, in connection with the refusal to alter it under the first instruction, was sufficiently excepted to, and that the judg- ment of the supreme court should be reversed. BRADISH, President. This case involtes the interpretation of the statute in regard fo "fraudulent conveyances, and conr tracts relative to real and personal property." Few subjects in the law have been more variously considered, or have received a greater diversity of construction and application, by courts and judges, than this. It should, therefore, perhaps be less a matter of surprise, than it certainly is of deep and just regret, that this subject has, for some years past, divided the opinions of this, and the supreme court of the state. This difference be- tween the courts, however, has unfortunately of late assumed the character, to say the least, of an animated conflict of opin- ion ; and has been adhered to with a pertinacity, which is not 300 CASES IN THE COURT OF ERRORS. Hanford v. Artcher. merely matter of regret, but which, as seems to rne,*is entirely inconsistent with the theory ', as it is unfriendly to the harmoni- ous and salutary action of our judiciary system. It is equal- ly unfavorable to the final and satisfactory settlement of the law upon an important and interesting subject. And yet, in principle, the line which thus unfortunately divides the opinions of the two courts, seems to me to be a very narrow one. The statute provides that, " Every sale made by a vendor of goods and chattels in his possession, or under his control, and every assignment of goods and chattels by way of mortgage or security, or upon any condition whatever, unless the same be accompanied by an immediate delivery, and be fol- lowed by an actual and continued change of possession of the things sold, mortgaged, or assigned, shall be presumed to be fraudulent and void, as against the creditors of the vendor, or the creditors of the person making such assignment, or subse- quent purchasers in good faith j and shall be conclusive evi- dence of fraud, unless it shall be made to appear, on the part of the persons claiming under such sale or assignment, that the same was made in good faith, and without any intent to de fraud &c." (2 R. S. 136, 5.) The 4th section of the next title further provides that, " The question of fraudulent intent, in all cases arising under the provisions of this chapter, shall be deemed a question of/ac, and not of law." The doctrine of the supreme court, as I understand it, is that, in the case contemplated by the statute, proof of good faith and of the absence of an intent to defraud, merely removes the conclusiveness of the evidence of fraud, leaving it still incumbent on those claiming under the sale or assignment to account satis- factorily to the court for the non-delivery of possession ; and thus rebut the presumption of fraud which the statute raises from that fact. That this can only be done by showing that delivery of" possession was impracticable. This latter proof, indeed, is held to be an indispensable preliminary requisite to the sub- mission of the question of good faith to a jury. This court, on the contrary, holds that the evidence which ALBANY, DECEMBER, 1842. 391 Hanford v. Artcher. would be sufficient to show good faith and an absence of intent to defraud, would also conclusively rebut the presumption of fraud which the statute raises from the non-delivery of pos- session ; and that no additional testimony, therefore, is neces- sary to account for such non-delivery of possession ; indeed, that the former cannot be fully shown, without its satisfactorily accounting for the latter. It seems to me that the doctrine of this court is entirely sound in principle, and is in strict conformity with the terms and the intent of the statute ; while that of the supreme court appears to me erroneous in both these respects. The latter would seem to proceed upon the ground, sometimes indeed asserted by judges, that the vendee or assignee of chattels leaving them in the pos- session of the vendor or assignor, is in itself fraud. This ap- pears to me to violate a vital principle of property. A full and free power of disposal of chattels is an essential and inhe- rent incident of ownership ; and the vendee or assignee of such chattels has the same right to leave them in the possession of the vendor or assignor, that he would have to take them into his own, or place them in the possession of a third person. If, however, the vendor be suffered to retain possession, the stat- ute, from motives of public policy, declares that the sale or as- signment so unaccompanied by an immediate delivery, and not followed by an actual and continued change of possession of the things sold or assigned, shall be presumed to be fraudulent and void as against creditors and subsequent purchasers ; and shall be conclusive evidence of fraud, unless it shall be made to appear that the same was made in good faith, and without any intent to defraud. Now what the statute does, in this case, is to raise a presumption of fraud, which becomes conclusive, unless good faith and absence of intent to defraud be made to appear. But if the sale or assignment be shown to have been made in good faith, and without any intent to defraud, the pre- sumption of fraud raised by the statute is fully rebutted. There can be no presumption of fraud in a transaction which has been proved to be icithout fraud. To call upon a party, therefore. 302 CASES IN THE COURT OF ERRORS. Hanford v. Artcher. who had already proved the good faith and absence of intent to defraud of a sale or assignment of chattels, to produce fur- ther testimony to remove the mere statutory presumption of fraud, would seem to be worse than a work of supererogation : it would be to suppose the possible existence of the shadow, af- ter the substance itself had ceased to exist. 1. The doctrine of this court is in conformity with the terms of the statute. Whatever may have been previously the uncer- tainty of the law upon this subject, the language of this stat- ute is clear, explicit and unequivocal. It would seem to be hardly susceptible of two interpretations. A legislative en- actment, both in its terms and its provisions, could scarcely be more clear and unambiguous than this ; or more perfectly in harmony with the interpretation it has received in the doctrine held by this court. It declares explicitly what shall raise the presumption of fraud, and in what case this presumption shall become conclusive evidence of fraud. With equal explicitness does it declare what shall remove or avoid the conclusiveness of this evidence, and thus rebut the presumption of fraud raised by the statute. It very wisely, as I think, has not undertaken to define precisely what evidence shall be sufficient to prove good faith and absence of intent to defraud. This must necessarily vary with the ever-varying circumstances of each individual case. The statute, therefore, has left this, like every other fact or question of intent, to be determined by the jury, under the di- rection of the court, from the legal, competent, and relevant testimony presented to them according to the ordinary and es- tablished rules of evidence. To this end it has made such fraudulent intent a question of fact) and not of law. From the declaration of the statute that the facts enumerated therein shall be conclusive evidence of fraud, unless it shall be made to appear that the sale or assignment was. made in good faith, and without any intent to defraud, the legal inference, as well as that of common sense, is, I think, irresistible, that if it be thus made to appear, those facts shall not be conclusive evi- dence of fraud ; and that the presumption of fraud raised ALBANY, DECEMBER, 1842. 303 t. Artcher. therefrom shall be thus fully rebutted. The statute does not go on to provide that, in addition to proof of good faith and absence of intent to defraud, the party claiming under such sale or assignment shall also be held to show, by reasons to -be approved by the court, why there had not been an immediate delivery, and an actual and continued change of possession : much less does the statute make such proof an indispensable preliminary requisite to the admission of proof of good faith and the absence of an intent to defraud j nor does it require that " the question of bona fides should be withholden from the jury, where the parties have refused to change the possession, if change were within their power." This is the law of the courts, not of the statute. In the opinion of the supreme court in the case of White v. Cole ff Thurman, (24 Wend. 116,) the learned judge who prepared that opinion, presents the follow- ing interrogatory and answer : " Does the statute, (2 R. S. 72, 2d ed.j 4,) when it declares fraudulent intent to be a question of fact, leave it to be tried, like other cases of intent, on facts pertinent in the opinion of the judge, according to the general rules of evidence 1 We have heretofore given one uniform answer to this enquiry. We have withholden the question of bonajides from the jury, where the parties have re- fused to change the possession, if change were within theu power. We have considered delivery as the form put forward by the statute to test the honesty of the transaction." It has also been said by another judge of the same court, (Butler v. Van Wyckj 1 Hill, 456,) " When that (change of possession) is wanting, the statute is so far from allowing that there .can be good faith towar<^ creditors and purchasers, that it declares the transaction, as to them, fraudulent and void ;" and again, " without altering the language of the statute, there is, I think, no way in which this presumption can be got rid of, so long as the fact out of which it springs unchanged possession con- tinues to exist." " Nothing can take a case out of the opera- tion of the statute, unless the attempted explanation relate to the possession of the property." 304 CASES IN THE COURT OF ERRORS. , Hanford v. Artcher. The doctrine thus laid down by two of the judges of the su- preme court, seems to me artificial, far too restricted, and in- consistent with both the terms and intent of the statute. In the case contemplated dy the statute, the statute itself pre- scribes, as the only requisite, proof of good faith and absence of intent to defraud. The burden of such proof is very prop- erly thrown upon those claiming under the sale or assignment. In weighing the evidence offered of such good faith and absence of intent to defraud, the jury may very properly consider any good reasons which may be presented to them for the non-de livery of immediate possession. Such reasons may, and gen erally will, form a part of the evidence which goes to show good faith and the absence of an intent to defraud ; but it is, by no means, the only evidence for that purpose. Nor can I admit, as seems to be insisted on in the doctrine held by the supreme court, that such reasons are an indispensable prelimi- nary requisite to the admission of other testimony ; or that, without such reasons, all other testimony, however satisfacto- ry in itself it may be in other respects, is still insufficient to prove what the statute requires, and to rebut the presumption of fraud which it raises. Much less can I admit the soundness of a doctrine that would withhold from the jury a jurisdiction expressly given to it by the statute, and which allows the court to usurp the prerogative of deciding not only upon the competency and relevancy of testimony, but also upon its weight and sufficiency, in the very case contemplated by the statute, and upon the very question expressly declared by that statute to be a question of fact and not of taw. This would be to repeal the statute, and to substitute in its place, law which, I think, the legislature has neither enacted nor intended to enact. To say too, that when a change of possession is wanting, the statute is so far from allowing that there can be good faith towards creditors and purchasers, that it declares the transaction, as to them, fraudulent and void, seems to me to be in the highest degree contradictory and ab- surd, and wholly wanting in that legal acumen and general logical ALBANY, DECEMBEK, 1842. Il&nfurd r. Artchcr. accuracy which usually so strongly characterize the mind from which the observation emanated. When the statute says, that a sale or assignment of chattels, unaccompanied by an imme- diate delivery and not followed by an actual and continued change of possession, shall be presumed to be fraudulent and void, and conclusive evidence of fraud, unless good faith and the absence of an intent to defraud be made to appear, the statute, in its very terms, necessarily supposes the possible ex- istence of good faith, and the absence of an intent to defraud, notwithstanding the want of an immediate delivery and an ac- tual and continued change of possession ; and it as necessarily implies that, when such good faith and absence of intent to de- fraud shall be made to appear, the presumption and conclusive evidence of fraud which the statute raises from the facts stated, shall be fully rebutted and cease to exist. This seems to me most clear from the very terms of the statute ; and such is the doctrine of this court. That doctrine is, therefore, in con-, formity with the terms of the statute. 2. The doctrine of this court is also in harmony with the in- tent of the statute. To arrive at the true intent and meaning of this statute, it is hardly necessary to go beyond its own phrase- ology ; so clear, explicit and unambiguous is the language in which its provisions are expressed. Yet that plain and obvi- ous intent is rendered still more palpable by the history of the law previous to the passage of this statute, and by the circuin stances which attended its enactment. Our statute of 1830, (2 R. S. 136, % 5, id. 137, $ 4,) em- braces the provisions, somewhat modified and enlarged, of the statutes of 50 Edw. 3, ch. 6, 3 Hen. 7, ch. 4, IZEliz. ch. 5, and 27 Eliz. ch. 4. For more than two centuries after the passage of the statutes of the 13 and 27 Eliz., even down to near the mid- dle of the reign of George the third, the prevailing doctrine of the courts of Westminster Hall, with few apparent exceptions, was, that those statutes, in the cases contemplated by them, and upon the facts therein stated, raised only a prima facie pre- sumption and not conclusive evidence of fraud ; and that this VOL. IV. 39 306 CAsiiij i;; T;II: COURT OF ERRORS. llanford c. Artcber. of course might be rebutted by testimony : that the question of fraud was therefore one of fact for the-'Jury, and not an in- ference of law to be drawn by the courts. It is true that, during this period, efforts were occasionally made by individual judges to introduce the harsher rule, and consider voluntary conveyances and sales of chattels, unac- companied by delivery of possession, as in all cases conclusive evidence of fraud, not to be explained or rebutted ; but that the fraud was a necessary inference of law to be drawn by the court from the single fact alone that the conveyance was vol- untary, or the sale unaccompanied by a delivery of possession. The acknowledged exceptions to this severe rule soon became so numerous as to destroy the rule itself, when the courts again fell back upon the milder and more reasonable rule of prima facie presumption, and the consequent jurisdiction of the jury. Some indeed went so far as to consider voluntary conveyances, and sales and assignments of chattels, unaccompanied by a change of possession, as fraudulent per se. Others attempted to draw a distinction between absolute bills of sale and condition- al assignments by way of mortgage, insisting that, in the former case, non-delivery of possession was conclusive evi- dence of fraud : while, in the latter, it is only prima facie evi- dence of fraud, during the period within which the condition was to be performed, on the ground that for this period the continued possession in the mortgagor was consistent with the deed. But that, on the expiration of that period, the case of a conditional assignment or mortgage was subject to the same rule as an absolute bill of sale ; on the ground that the continued possession of the conditional assignor, or mortgagor, had then become inconsistent with the deed. (a) But these ultra doctrines and artificial distinctions had only a transient existence. They soon disappeared, and gave place to the much more rational and sound doctrine that puts all (d) See Bissett v. Hopkins, (3 Cowen, 166,} and t,h. Artchcr. these cases on the same uniform ground of intent ; as in the cases of Cadogan v. Kennett, (Cowp. 432,) and Doe v. Rout- ledge, (id. 705.) In the former, (p. 434,) Lord Mansfield said, " the statute does not militate against any transaction bonajlde, and where there is no imagination of fraud. And so is the com- mon law." And further : "The statute 27-E/tz. c. 4, does not go to voluntary conveyances merely as being voluntary, but to such as are fraudulent." This was the earlier, and, as seems to me, the true doctrine. So Lord Ellenborough, in Doe v. Manning and another, (9 East, 59, 63,) where he collected and reviewed the cases under the 13th and 27A Eliz., ob- served that, in the cases " which arose nearest the time of pass- ing the statute, (27 Eliz.) the judges seem to have held that a voluntary settlement was only prima facie fraudulent against a purchaser ;" and that, by a reference to the cases, it would ap- pear that it was matter of evidence to the jury, on which they passed, whether a voluntary conveyance, as such, was fraudu- lent. The same principle is applicable to both statutes. In favor of the principle may be arrayed, among others, the names of Lord Hale, Lord Rolle, Lord Holt, Ch. Baron Gilbert, Ch. Justice Eyre, Lord Mansfield, Sir William Blackstone, Lord Eldon, Lord Ellenborough, and Lord Tenterden ; and against it Lord Hardwicke, Ch. Justice DeGrey, and Justice Buller. The latter, in the case of Edwards v. Harben, (2 T. R. 587,) did, more strongly perhaps than any of his predecessors or suc- cessors, lay down the strict general rule, that possession must accompany and follow the deed : that, therefore, where the conveyance is absolute, the possession must be delivered im- mediately, but where it is conditional, it will not be rendered void by the vendor continuing in possession till the condition be performed ; thus recognizing the distinction before at- tempted to be drawn between absolute and conditional con- veyances. The doctrine of this case, however, has neither been always considered as sound law, nor uniformly followed as such, even in England. On the contrary, it has been often questioned. In Steward v. Lombe, (1 Brod. $ Bi*g. 506,) de- 308 CASES IN THE COURT OF ERRORS. Hanford v, Artcher. cided in 1820, the doctrine of Edwards v. Harben was very strongly questioned and dissented from by Ch. J. Dallas and Justice Parke ; and still more so in later decisions. Even Justice Buller himself, in Haselinton v. Gill, (3 T. R. 620, note,) says : " It has been frequently determined that posses- sion alone is not evidence of fraud ; the transaction must be shown to be fraudulent from other circumstances." This case was tried at the Guildhall sittings after Easter term 1784, before Justice Buller, was carried up to the king's bench, and de- cided by Lord Mansfield Ch. J., Ashhurst, Grose and Buller, Justices. Ch. J. Savage understood the case of Edwards v. Harben as differing from Twyne's case only in that it made non- delivery of possession, unexplained, sufficient, per se,to charac- terize the transaction as fraudulent ; whereas in Twyne's case, that was combined with other indicia of fraud. He states the general rule to be, that c< possession by the vendor or mort- gagor, after forfeiture, is prima facie evidence of fraud; but that such possession may be explained, and if the transaction be shown to have been upon sufficient consideration, and bona fide, that is, without any intent to delay, hinder or de- fraud creditors or others, then the conveyance is valid, other- wise not." Continued possession in the vendor OT mortgagor " is a badge of fraud. That is not denied and never has been since Twyne>$ case." (Hall v. Turtle, 8 Wend. 375.) Chan- cellor Kent, after a careful examination of the cases, and a full consideration of the whole subject, says : " The conclusion from the more recent English cases would seem to be, that though a continuance in possession by the vendor or mortgagor be pri- ma facie a badge of fraud, if the chattels sold or mortgaged be transferable from hand to hand, yet the presumption of fraud arising from that circumstance may be rebutted by explana- tions showing the transaction to be fair and honest, and giving a reasonable account of the retention of the possession. The question of fraud arising in such cases, is not an absolute in- ference of law, but one of fact for the jury." (2 Kentfs Com* 620, 2d ed.) ALBANY, DECEMBER, 1842. Hanford . Artchcr. Such is briefly the history and present state of the law upon this subject in England. It has been, if possible, still more fluctuating and unsettled in this country. The supreme court of the United States, in the case of Hamilton v. Russell, (1 Crunch, 309,) adopted the leading principle of the case of Ed- wards v. Harben, leaving open, however, the question between absolute sales and conditional assignments, and also the cose where a continuance of the possession in the vendor or assignor is consistent with the deed. This decision has been adopted and generally followed by the subordinate courts of the United States, so that it may perhaps be considered as the settled doctrine of the federal judiciary, with some recent and pretty strong exceptions. Among these is the opinion of Jus- tice Thompson in the case of Hi.-idc's Lessee v. Longworth, (11 Wheatoii) 213.) The doctrine of Edwards v. Harbcn has also been adopted and followed in several of the states, particularly Virginia, Kentucky, Pennsylvania and Connecticut. But the contrary doctrine has been strongly and uniformly held in North Carolina, New-Hampshire, and Massachusetts, where the sub- ject seems to have undergone r. full and careful examination. In North Carolina, in Vicks v. Keys, (2 Hayw. 126,) Falk- ncr v. Perkins, (id. 224,) Trotter v. Howard, (1 Hawks' Rep. 320,) and in Smith & Stanley v. Mel and others, (id. 341,) Judges Taylor, Johnson and Hall, held, that the not taking pos- session immediately of goods conveyed by a bill of sale, is not of itself fraud, but evidence only of fraud, and may be accounted for by evidence ; and that that question properly and of right belongs to the jury. In New-Hampshire, in Haven v. Low, (2 JV. H. R. 13,) Woodbury, J. says : " As a general principle, fraud is a question of fact ; or, at the farthest, is a mixed question of law and fact." In conclusion, he adds : " Possession of property be- ing retained hy the vendor after a sale, is not per se a fraud j but, in the language of Lord Mansfield, (1 Burr. 484,) 'being only evidence of fraud may be explained.' The whole circum- stances should be submitted to the jury." In Cobvrn v. Pickering, (3 JV. K. R. 415, 425,) Richardson, Ch. J. says: 310 CASES IN THE COURT OF ERRORS. Hanford . Artcher. After a most attentive and careful examination of the books on this subject, we have not been able to entertain a doubt, that the true rule to be deduced from all the adjudged cases is, that when the sale is absolute, possession and use of the goods af- terwards, by the vendor, is always,prtmo/acie, and, if unexplain- ed, conclusive evidence of a trust." " When the question is, was there a secret trust *? it is a question of fact. But when the fact of a secret trust is admitted, or in any way established, the fraud is an inference of law which a court is bound to pronounce." (Id. p. 428.) " Twyntfs case, in substance, con- tains the rule we have laid down." (Id. p. 427.) Refer- ring to the case of Haven v. Low, he adds : " The decision was in perfect accordance with the rule we have laid down ; for when the court say that possession of the goods is not con- clusive evidence, all that is intended is, that it may be rebut- ted or explained." " We have no hesitation in saying, that there is no contradiction in the decisions on this point. All the cases are reconciled by the distinctions we have stated." This case seems to have been ably argued, and deliberately and well considered. In Ash v. Savage, (5 JV*. H. R. 545, 547,) Richardson, Ch. J. says, that " possession by the mort- gagor may in some cases be evidence of fraud, but is never fraud in law, or conclusive evidence of fraud." In Massachusetts, in Brooks v. Powers, (15 Mass. R. 244,) the court say : " It has been contended in this case, that the pos- session of the vendor of personal chattels after the sale, is con- clusive evidence in favor of creditors that the sale was fraudu- lent ; or rather that it is itself a fraud. But we are all of opin- ion that-., although it is generally evidence of the strongest kind s it is not conclusive." In Bartlett v. Williams, (1 Pick. 288^ 295,) Putnam, J. says : " It is certainly a general rule, that pos- session must accompany and follow the deed ; and that the pos- session of the vendor after the bill of sale, unexplained, would render the conveyance void as against creditors. But such a possession may be explained, and be perfectly consistent with justice." ALBANY, DECEMBER, 1W2. Hanford t>. Anchor. In relation to our own state, Chancellor Kent remarks : " In New- York, the current language of the court originally was, that the non-delivery of goods at the time of the sale or mortgage, was only prima facie evidence of fraud, and a circumstance which admitted of explanation." (2 Kent's Com. 526, 2d ed.) See Barrow v. Paxton, (5 John. R. 258,) where it was held that possession continuing in the vendor was only prima facie evi- dence of fraud, and might be explained. See also Seals v. Guern- sey, (8 John. R. 446, 452,) where the court say : " The non-de- livery of the goods at the time of the sale is of itself a circum- stance of fraud, as was stated in Twyne's case ; but it is only pri- ma facie evidence of fraud, and the circumstance may admit of explanation." " The question of fraud depends upon the motive." This seems to me the true doctrine, especially under the statute of 1830. But in Sturtevant v. Ballard, (9 John. R. 337, 344,) Kent, Ch. J. would seem to have intended to establish the stricter rule, when he declared, that " a voluntary sale of chattels with an agreement, either in or out of the deed, that the vendor may keep possession is, except in special cases, and for special reasons, to be shown to, and approved of by the court, fraudulent and void as against creditors." Chief Justice Savage, however, does not understand the decision in this case as having altered the law ; but that the exception therein of " special cases, and for special reasons, 11 left the evidence of fraud open for explanation, and, therefore was not conclusive ; and that the case, therefore, did not go beyond the previous ones of Barrow v. Paxton and Seals \. Guernsey. It is evident, however, I think, from Chancellor Kent's language in his com- mentaries, that he himself intended, in the decision of Sturte- vant v. Ballard, to adopt a more strict rule than had been pre- viously recognized by the courts of this state j and that he sup- posed the court had, in its decision of that case, accomplished such purpose. The doctrine of this case was not followed in Dickinson v. Cook, (17 John. R. 332,) where Yates, J., who delivered the opinion of the court, recognized, as a general principle of 312 CASES IN THE COURT OF ERRORS. Hanford v. Artcher. law, that a continued possession of goods by a vendor is prima facie evidence of fraud. But Bissell v. Hopkins, (3 Coven, 166,) as Chancellor Kent himself admits in his commentaries, entirely subverted the doctrine of Sturtevant v. Bollard, and declared that, in retaining possession after sale, there was nei- ther fraud in law, nor fraud in fact ; that there was only prima facie evidence of fraud, which might be explained. In Butts v. Swartwood, (2 Cowen, 431,) and Jackson v. Mather, (7 Cowen, 304,) continued possession was held to be only prima facie evidence of fraud. Stutson v. Brown, (7 Cowen, 732,) was a case of actual fraud. In the case of Seward v. Jackson, (8 Cowen, 406,) in this court, Senators Spencer and Allen held fraud to be a question of fact and not of law. The former put himself, among other authorities, on the opinion of Justice Thompson in Hinders Lessee v. Longworth, cited above. Sena- tor Spencer (p. 435,) says : " Strictly speaking, there is no such thing as fraud in law ; fraud or no fraud is, and ever must be a fact. The evidence of it may be so strong as to be conclusive ; but still it is evidence, and, as such, must be submitted to a jury." In Jennings v. Carter, (2 Wend. 446, 449,) Marcy, J., says : a It is well settled that explanations may be given, which will effectually repel the presumption of fraud arising from con- tinuance of possession in the vendor." In Divver v. McLaugh- lin, (2 Wend, 596,) Savage, Ch. J. held, that possession of personal property by the vendor or mortgagor inconsistent with the deed, was prima facie evidence of fraud, but subject to explanation. In these last two cases, the explanations offered were insufficient. The opinions of Senators Spencer and Allen in Seward v. Jackson were afterwards followed by the supreme court in Jackson v. Peck, (4 Wend. 300,) and in Jackson v. Timmerman, (7 Wend, 436.) Such is briefly the history, and such was the fluctuating and unsettled state of the law upon this subject, when the statute in question was passed. It cannot therefore well be perceived, how it could with correctness be said or implied, as it was in Butler v. Van Wyck, that there had been a " uniform current ALBANY, DECEMBER, 1842. Hanford r. Artcher. of judicial authority from Twyntfs case, in the reign of Eliza- beth, down to, but not including Smith If Hoe v. .tfcfcer, decided by the court for the correction of errors j" or, as was said in the same case, with reference to the principle in discussion, that it was " a question which had passed through all the courts of the state with a uniform result" On the contrary, the ever- varying and often conflicting decisions of the courts, in regard to the principle in question, rim through all the books, and show the law upon this subject to have been at that period fluctuating and unsettled. To reconcile the discrepancies, and, as far as practicable, to harmonize the various and conflicting decisions of the courts, by taking from all whatever they had in common OJT might contain of sound doctrine and practical principle, and thus finally to settle the law upon this subject, was undoubtedly the object and intention of the legislature in passing into express enactment this portion of the revised statutes. This conclu- sion would naturally be drawn from the very terms of the statute, which are clear and explicit. But the conclusion is forti- fied by the orignal notes of the revisers, which accompanied this portion of the revision when it was presented by them to the revising legislature. This object, at the time, was supposed to have been fully accomplished. So it was then and has since been viewed by some of the best legal minds in the state. Chancel- lor Kent, referring to the previously fluctuating and unsettled state of the law upon this subject, says : " The New-York re- vised statutes have put this vexatious question at rest." " The doctrine now established by statute, is evidently as high-toned as any that the courts of justice in this country can, by a per- manent practice, sustain ; and it contains this inherent and re- deeming energy, that the fact of withholding possession raises the presumption of fraud, and the burden of destroyingMhat presumption is thrown on the vendee or mortgagee." (2 KcnPt Com. 529, note.) So in Hall v. Tuttle, (8 Wend. 375,) one of the earliest cases that arose under the revised statutes, and IV. 40 314 CASES IN Trite COURT OF ERRORS. " Hanford v. ./Vrtcher. which, with the whole law upon the subject, was very elaborately considered by Ch. J. Savage, he says : (p. 379,) " If I am right in supposing that the rule laid down in Sturtevant v. Bollard amounts to no more than that possession remaining in the ven- dor is prima facie evidence of fraud, then there is no dis- crepancy between the cases in this court ; they all maintain the same doctrine ; and so have the legislature pronounced the law to be from and after January 1, 1830. (2 R. S. 136, 5.) This legislative enactment contains what I understand the law to have been ever since the 13th Eliz. ch. 5, and what the common law was before that statute was enacted." Such are the views of two distinguished legal minds, of the provisions and effect of the statute in question. Indeed, so plain is the language, and so palpable the objects of this stat- ute, that it would seem to be as impossible to mistake the one as to misinterpret the other. And yet, as was remarked by a late distinguished member of this court, " This legislation has merely afforded a new and remarkable proof of the imper- fection of human language and the impossibility of definitely settling any great rule of law for the complicated affairs of human life, merely by the general language of a statute or the provisions of a code." It would seem to me, however, that the differences in opinion, and the conflicting interpretations of this statute, have arisen rather from strongly preconceived no- tions of what the public interests and a sound public policy re- quired it to be 3 than from any ambiguity or uncertainty either in the terms or the provisions of the statute itself. It has been an adherence to what, in individual opinion, the law should be, rather than a fair and just interpretation of what the legislature has actually made it. The opinion has been entertained and strongly expressed, that the public interests as well as good morals, would have been promoted by a declaration, fifty years ago, of the rule of law, that all sales and assignments of chat- tels, by way of mortgage, of which the possession, under any pretence whatever, is retained by the vendor or mortgagor, should be deemed to be absolutely fraudulent and void as ALBANY.JDECEMBEH, 1842. Hanford r. Artcher. against creditors and subsequent purchasers j that nothing short of such a rule can effectually reach the evil against which the statute was directed ; and that such a rule would be one of a most salutary tendency. It certainly is not surprising that a judge, honestly holding such doctrines as sound principles of public policy, with a view to their utmost application, should, in every case coming before him for adjudication, push his severe, and, as seems to others, ultra interpretations of the stat- ute, to the utmost verge of legal sanction, and carry their ap- plication to the very farthest limit which the circumstances of the case would possibly permit. Such would naturally be the honest and ardent tendency of his mind. And it may well be, therefore, that this honest impulse may have led, uncon- sciously doubtless, to the endeavor to supply, by judicial inter* pretation, what is imagined to be defective in the legislative enactment. But the question is not what ought to be, but what is the law ? The former is for the exclusive consideration of the legislative power ; while the latter only can be regarded by the judiciary. It is to be feared that this sound principle has not always been sufficiently observed. For although in the earlier cases of Hall v. Tuttle, Cunningham v. Freeborn, Gardner v. Adams, and some others, the statute received an interpretation in conformity with its palpable import, yet so fatly as the case of Doane v. Eddy, in 1837, the supreme court, (Ch. J. Nelson, dissenting,} put themselves back upon the severest rule of some of the old decisions, and advanced a doctrine which seems to me as inconsistent with the terms, as it is with the true intent of the statute. In the dissenting opin- ion of the chief justice, however, the statute received, in few words, a very full, just and satisfactory interpretation. The doctrine of the supreme court in that case was more fully de- veloped, enforced and followed in Randall v. Cook, (17 Wend. 53,) in Wood v. Lowry, (id. 492,) and again in Beekman v. Bond, (19 Wend. 444,) where, in addition to the severe rule adopted in the previous cases, the court, by a restricted appli- cation of the fourth section of the third title of the statute, put 316 CASES IN THE COURT OF ERRORS. Hanford v. Artcher. forth a doctrine that would deprive the jury of an expressly granted jurisdiction, in violation, as seems to me, of the clear language, and most manifest intent of the statute. This doc- trine, too, is attempted to be sustained by a course of reasoning as remarkable, certainly, as its conclusions appear to be errone- ous. The learned judge who delivered the opinion of the court in Beekman v. Bond, says : " The fifth section of title two de- clares, in substance, that, as against creditors and purchasers, ev- ery sale and conveyance of goods, without a change of possess- ion, l shall be presumed to be fraudulent and void.' The only question of fact here is about possession. The provision is not, that a conveyance of goods made with a fraudulent intent, shall be void ; but that a conveyance of goods without a change of possession, shall be void. Is the fraud in such cases a question of fact ? Let the statute answer. The transaction ' shall be pre- sumed to be fraudulent and void.' This is the language of the law, and except under special circumstances, a jury has nothing to do with the question." The same learned judge in the recent case of Butler v. Van Wyck, (1 HiIVs R. 455,) thus explains himself : " In Beekman v. Bond an attempt was made to show that this provision [2 R. S. 137, 4,] had ample scope for ope- ration without touching, and that it did not in fact touch, this point. It is not only enacted that conveyances made with afrau' dulent intent shall be void, but the legislature has gone further, and singled out and seized upon that common and strong badge of fraud continued possession in the vendor or mortgagor and declared, that without an immediate delivery, the transfer i shall be presumed to be fraudulent and void.' The law itself makes the inference, and nothing is left for a jury " From the above, one might be led to suppose that the learn- ed judge must have looked for the matter upon which he thus comments, in the original reports of the revisers, and not in the statute book ; for it is believed that the latter contains no such absolute or unqualified propositions as are above stated. Such is not the law " written in the statute book." There is in the statute no where to be found, even in substance, the ab- ALBANY, DECEMBER, 1842. 317 Hanford . Artcber. solute and unqualified provision " that, as against creditors and purchasers, every sale and conveyance of goods without a change of possession, shall be presumed to be fraudulent and void." Nor is there in substance or in spirit a provision " that a conveyance of goods, without a change of possession, shall be void ;" or that, " without an immediate delivery, the trans- fer shall be presumed to be fraudulent and void." This is not the language of the law. But the statute does, in substance, provide that every sale and assignment of goods and chattels by way of mortgage or on any condition whatever, unless accom- panied by an immediate delivery, and followed by an actual and continued change of possession, shall be presumed to be fraudulent and void as against creditors and subsequent pur- chasers, and shall be conclusive evidence of fraud, unless it be made to appear on the part of those claiming under such sale or assignment , that the same was made in good faith, and with- out any intent to defraud such creditors or purchasers. Now, the concluding qualification of this provision of the statute is an essential part of the two propositions which the provision contains 1st, as to the presumption ; and 2d, as to the conclusive evidence of fraud. Neither of these two prop- ositions is absolute, but both are made sub modo. Without their expressed condition or qualification, they would represent neither the truth nor the law ; neither what the legislature has expressed, nor what it intended. It is true, that the revisers originally presented the first of these propositions as the learn- ed judge has stated it, without qualification. But the revising legislature, after much discussion and deliberation, added the second proposition and the qualification ; thus essentially changing the law from that which was proposed by the revi- sers. It was undoubtedly with reference to this difference be- tween the original proposition of the revisers and the statute as finally enacted by the legislature, that the distinguished sen- ator above quoted says : " The decisions in this state since the statute of 1830, have, it seems to me, been more in the spirit of the learned revisers, than in that of the enacting sovereign power." 318 CASES IN THE COURT OF ERRORS. Hantord v. Artcher. But in Beekman v. Bond, the learned judge adds : il To my mind it is quite clear that the legislature did not intend, on one page of the statute book, to declare, as matter of law, that a. par- ticular transaction should be presumed fraudulent; and then, on the next page, to say that the fraud should be a question of fact and not of law. There is no necessity for giving a construction to the statute which will involve such a contradiction." Certainly not. Read the statute as it was enacted, and all will be harmo- nious. The whole provision of the fifth section of title two must be taken together. The qualification with which it concludes contains a question of good faith or fraudulent intent, which is to determine the character and effect of the sale or assign L ment under the two preceding propositions of the provision. This question of fraudulent intent goes to the whole provision of the section. And this is one of the questions of fraudulent in- tent, which, by the fourth section of title three. are expressly de- clared to be " questions of fact, and not of law." As Chief Justice Nelson, in Doane v. Eddy, very properly says, " the fraudulent intent referred to in section four (of title three) means the intent to defraud mentioned in section five, (of title two.)" How then can it be said that, " except under special circum- stances, a jury has nothing to do with the question ;" or that " the law itself makes the inference, and nothing is left for a jury" In the language of the learned judge, " To my mind it is quite clear that the legislature did not intend, on one page of the statute book, to declare, as matter of law, that a particu- lar transaction should be presumed fraudulent ; and then, on the next page, to say that the fraud should be a question of fact and not of /aw." But the latter, the legislature certainly has expressly said, and undoubtedly intended. The former is merely an inference of the learned judge j and is believed to be wholly unwarranted by either the terms, or the intent oi the statute. The revisers undoubtedly intended to, and did so pre- sent the law ; but the legislature did not so enact it. They subjected the general proposition as to fraud, to the qualifying condition of good faith, or fraudulent intent ; and declared thai ALBANY, DECEMBER, 1842. Hanford r. Artcher. fraudulent intent to be a question of fact and not of law. The supposed contradiction of the statute, therefore, will thus be found, upon a careful examination and just interpretation of its provisions, not to exist. This new statute, while it adopts, under qualification, the severe principle of " conclusive evidence of fraud? laid down in some of the modern cases, at the same time declares what shall remove the conclusiveness of this evidence, and suffi- ciently rebut the prima facie presumption of fraud ; viz. th party claiming under the sale or assignment making it appear that the same was made in good faith and without any intent to defraud. The statute too, in declaring, as it does, in the fourth section of its third title, that the question of fraudulent intent shall be deemed a question of fact, and not of law, has finally settled the long agitated point, whether the question of fraud, in the case contemplated b) the statute, be a matter of fact to be determined by the jury in a court of law, or an in- ference of law to be drawn bj the courl. In general, this statute, upnn due examination and a fair in- terpretation, will, I think, be foun I to have accomplished the following important objects, and thus put to rest the vexatious questions long agitated in regard to them, viz. 1. It has abol- ished the distinction sometimes attempted to be drawn between absolute sales and conditional assignments ; and thus avoid- ed the question whether continued possession in the vendor or assignor be consistent or inconsistent with the deed. 2. It declares what shall rebut the evidence of fraud raised by the statute from a want of change of possession ; viz. good faith, and absence of intent to defraud. 3. It throws the bur- den of proof of such good faith and absence of intent to de- fraud, upon the party claiming under the sale or assignment. 4. It declares the question of fraudulent intent to be a ques- tion of fact and not of law. Except in these particulars, the statute of 1830 leaves the law, as regards the case now under review, substantially as it found it j for there can be little dif- 320 CASES IN THE COURT OF ERRORS. Hanford . Artcher. ference between prima facie evidence, and conclusive evidence that may be explained. Practically, they amount to the same thing ; because prima facie evidence, if unexplained, becomes conclusive. Whereas, evidence declared to be conclusive un- less explained, is, if unexplained, no more than conclusive ; and if satisfactorily explained, like prima facie evidence, is fully rebutted. The statute very 'properly throws the burden of proof on the party claiming under the sale or assignment and while it prescribes what shall rebut the evidence of fraud raised by the statute, and submits that as a fact to be deter- mined by the jury, it leaves the court in the unimpaired pos- session and exercise of all its proper prerogatives of deciding upon the legality, competency and relevancy of testimony, but not upon its weight and sufficiency on a question declared by the statute to be one of fact. These belong properly to the The statute has thus clearly defined and fixed the boundaries of the proper jurisdiction of the court and jury ; and has thus provided for the harmonious and salutary action of these two departments of our judiciary system, both perhaps equally es- sential in the due administration of public justice. The statute of 1833 does not materially change the law upon this subject ; but contains some additional provisions in regard to mortgages of chattels. In the case of such a mortgage, unaccompanied by an immediate delivery, and not followed by an actual and continued change of possession of the things mortgaged, it de- clares the mortgage void, unless the mortgage, o-r a true copy thereof, be filed as prescribed by the statute, and annually re- newed with a statement of the amount due on the mortgage. The object of this provision was undoubtedly to give publi- city to the transaction, and thus to put creditors, purchasers and subsequent mortgagees on their guard. So that, in order to give validity and effect to a mortgage of chattels, unaccom- panied by a change of possession, the party claiming under it is now held to prove, not only that the mortgage was given in good faith and without any intent to defraud, but also that the ALBANY, DECEMBER, 1842. 321 Hanford r. Artcber. requirements of the statute of 1833 have been complied with. This being done, I cannot doubt that it was the intention of the legislature to give effect to such mortgage of chat- tels, even although possession do not accompany or follow the deed. Nor can I doubt that such intention of the legisla- ture has been fully carried out in the provisions it has adopted, and in the language in which they are expressed. Such are believed to be the provisions of the statute in question ; and such were evidently the objects and intentions of the legislature in passing it. With the terms of the statute thus interpreted, and with these supposed objects and inten- tions of the legislature in its enactment, the doctrine of this court fully harmonizes. And although the doctrine of the case of Doane v. Eddy, more fully developed in Randall v. Cook, and still more explicitly declared in Butler v. Van Wyck, has been adhered to by two of the judges of the supreme court, down through all the subsequent cases of Stoddard v. Butler, Smith fy Hoe v. Jlcker, Cole 4* Thurman v. White, Butler v. Van Wyck, and the case now under review here, yet the doc- trine of this court may be considered as now finally settled and established; and, as such, has become the law of the state. That doctrine is clearly and well laid down in the dissenting opinion of Nelson, Ch. J. in Doane v. Eddy, in the su- preme court ; generally in the opinions of Senators Dickinson and Verplanck in Stoddard v. Butler, and in the cases of Smith $ Hoe r. Acker, and Cole Sf Thurman v. White, in this court. In those cases, I think the statute has been correctly interpreted, and the law well settled. That law, until changed, is binding upon this, as it is upon the subordinate courts, and the people of this state. It should, therefore, here at least, be vigilantly and firmly sustained. To this we, at all events, should faithfully adhere. This has become the more necessary and is the more incumbent upon us, since, for the first time in the history of this court, its controlling powers are drawn into question, and the au- thority of its decisions denied. If this doctrine, so novel ' VOL. IV. 41 322 CASES IN THE COURT OF ERRORS. Hanford v. Artcher. and alarming in itself, had been only casually or carelessly ex- pressed, or had had a humbler origin, it would have carried with it less weight, and would of course be less dangerous. Grave even as it is in its character and tendency, still, under ordinary circumstances, it might safely be left to the sure cor- rective of sound and enlightened public opinion. But the high personal character and elevated official station of the individual from whom it emanates, as well as the labored and apparently deliberate manner in which it is put forth, are all calculated to give to this new doctrine a credit and currency, which in itself it could never have ; and to aggravate the mischiefs it natural- ly tends to produce. It ought not, therefore, to pass in silence here. Some notice of it seems to be not merely called for, but forced upon the members of this court, by the highest conside- rations of public duty, and a just regard for the character and usefulness of the court of which we. are members. So long as I have the honor of being a member of this court, my sense of duty will not permit, me to allow even my silence to be con- strued into an acquiescence in a doctrine that would abridge the legitimate powers, degrade the character, and impair the usefulness of this court ; a doctrine too, which I deem as unconstitutional in its principle, and as disorganizing and de structive in its tendency, as it is novel in its enunciation. The people, in forming the organic law of the government of this state, very wisely foresaw, that in its action and pro- gress, questions of interpretation, of the settlement of legal principles, and of their application, would frequently arise ; and thence the necessity of constituting some tribunal, with general appellate and supervisory powers, whose decisions should be final, and conclusively settle and declare the law. This was supposed to have been accomplished in the organiza- tion of this court. Heretofore this court, under the constitution, has been looked to by the people as the tribunal of last resort in the state ; and it has hitherto been supposed, that when this court had decided a case upon its merits, such decision not only determined the rights of the parties litigant in that par- ALBANY, DECEMBER, 1842. 323 t Hanford v. Artchcr. ticular case ; but that it also settled the principles involved in it, as permanent rules of law universally applicable in all future cases embracing similar facts, and involving the same or analo- gous principles. These decisions thus became at once public law, measures of private right and landmarks of property. They determined the rights of persons and of things. Parties entered into contracts with each other with reference to them as to the declared and established law ; law equally binding upon the courts and the people. But the doctrine recently put forth would at once overturn this whole body of law founded upon the adjudications of this court, built up as it has been by long continued and arduous labors, grown venerable with years, and interwoven as it has become with the interests, the habits, and the opinions of the people. Under this new doc- trine, all would again be unsettled nothing established. Like the ever returning but never ending labors of the fabled Sisy- phus, this court, in disregard of the maxim of " stare decisis]' would, in each recurring case, have to enter upon its examina- tion and decision as if all were new ; without any aid from the experience of the past, or the benefit of any established princi- ple or settled law. Each case, with its decision being thus limited as law to itself alone, would in turn pass away and be forgotten, leaving behind it no record of principle establish- ed, or light to guide, or rule to govern the future. Such is the condition to which this novel doctrine, if practi- cally adopted, would reduce us a condition which a former distinguished member of this court, borrowing the language of an ancient writer, well and forcibly described as marking a miserable people, " where the laws are vague and uncertain" But there is another aspect of this novel doctrine which seems to me still more alarming and destructive. It is said, that " it would be strange indeed if other courts were bound to follow them [the decisions of this court] at all events, and without looking into the reasons on which they stand." Again, " the decisions of that court, [the court of errors,] although final as between the parties litigant, are so far from being conclusive 324 CASES IN THE COURT OF ERRORS. Hanford v. Artcher. by way of authority, that they are entitled to much less weight than the judgments of* those courts which consider themselves bound by legal adjudications." To see the supreme court engaged in passing in review a de- cision of this court, in order, by an examination of its " reasons," to ascertain whether it will adopt its principle as a rule of law, would certainly be a very novel spectacle. This would be re- versing the order of proceeding contemplated by the constitu- tion. But suppose this, however disorderly it may appear, to be attempted, let us see what would be its practical result. This court decides a case between A. and B. The supreme court has a case before it between C. and D., analagous in its facts and principles. The supreme court takes up the decision of this court, reviews its reasons, finds them unsatisfactory, and comes to the conclusion that the decision is bad law, or rather, that " it is no law at all j" and of course not binding as an au- thoritative precedent. The court, therefore, proceeds to decide the case in hand in opposition to it. The case is then brought up to this court by writ of error. This court, followipg its own precedent laid down in the case of A. and B., reverses the judgment of the supreme court in the case of C. and D. ; and this, even according to this new doctrine, is binding and con- clusive between the parties litigant. Now, what has been ac- complished by the supreme court thus refusing to acknowl- 3dge as a precedent the decision of this court in the case of A. and B., and to apply it as a rule of law in its own decision of .hat of C and D.? Literally nothing, except to subject the parties to increased expense, and to illustrate the absolute fu- tility of a doctrine as impracticable in its purpose as it is un- constitutional in its principle and disorganizing in its tenden- cy and effect. Extend this novel doctrine to the subordinate courts, and what would be the spectacle there presented, and the consequences that would inevitably follow 1 The circuit courts and courts of common pleas, instead of receiving and following as authoritative precedents, the decisions of the su- preme court, acquiesced in by the parties, would be occupied in ALBANY, DECEMBER, 1842. 325 Hanford v. Artcher. reviewing those decisions, examining their reasons, and either recognizing or rejecting the former as they find the latter sat- isfactory or otherwise. The justices of the peace too, and their courts, would be similarly occupied in regard to the de- cisions of the courts of common pleas ; and thus the subordi- nate courts generally, released from the controlling and con- servative principle to which they have very wisely been sub- jected by the constitution and the laws, would, under this new doctrine, instead of forming as at present, dependent parts of one harmonious whole, become not only wholly independent of each other, but conflicting in their powers and their action. The authority of law and the constitution would thus be subvert- ed, the course of things reversed and retrograde, and every thing tend to disorder, confusion and ruin. Again, it is said that the decisions of this court " are so far from being conclusive by way of authority, that they are enti- tled to much less weight than the judgments of those courts which consider themselves bound by legal adjudications." Now this is a very pregnant proposition ; and, if well founded, is as grave as it is disparaging. Without hazarding the asser- tion, it would imply that this court does not consider itself bound by legal adjudications ; an implication as unjust to the character of this court, as it is believed to be whol'v unsus- tained by any thing to be found either in the declarations or the acts of the court as such. On the contrary, it is confident- ly believed that our books of reports will furnish abundant evi- dence that this court has, in general, adhered to acknowledged authority with as much steadiness and uniformity as others, and much more so than could have been reasonably anticipated from its constitutional organization. Few cases can be found where, by its decisions, it has either overturned or disregarded the well settled principles and rules of law. But it is said that this court has not always followed its own decisions. What other court in any country has done so ? The supreme court of our own state does not certainly form an ex- ception to the general truth in this respect Even the history 326 CASES IN THE COURT OF ERRORS. t Hanford v. Artcher. of the leading principle of the very case now under review here, furnishes abundant evidence that neither in England, nor in this country, have the courts invariably held the same doc- trine upon the same subject. It is, however, confidently be- lieved that this court, in its adjudications, has not been want- ing in a due and just respect for acknowledged authority, in a uniform and proper regard for its own decisions, and a careful and strict adherence to well established law. But the author of this novel doctrine, in the case in which it is put forth, after denying generally the authority of the de- cisions of this court, has permitted himself to say : " But when, as in Smith 8f Hoe v. dicker, the court has pro- fessedly departed from the whole course of decisions,' the judgment is entitled to no weight at all." To seize up- on isolated and casual expressions of individual members of the court, and apply tneni, as general and governing principles, even to -the individual opinions of such members, is of more than questionable fairness j but to appropriate them generally and say that " the court has professedly depart- ed from the whole course of decisions," is as incorrect in point of fact, as it is grossly unjust to this court. In point of fact, it may be asked when and where did this court, as such, ever make such a profession 1 The injustice of the remark will be fully illustrated by a reference to the practice of this court, in forming and pronouncing its decisions. The court hears an argument in a given case. It does not afterwards meet for the purpose of consultation or deliberation ; but each mem- ber, separately and apart, examines the case, and prepares for its decision. The court then comes together ; the opinions of the members are delivered ; and the court then unites in a gen- eral conclusion, either of affirmance or reversal of the judg- ment or decree reviewed. For this conclusion, and for this only, is the court, as such, responsible ; unless, indeed which is very rarely the case the court proceed by resolution, to de- clare the grounds upon which that general conclusion rests. Different minds arrive at this conclusion by different processes ALBANY, DECEMBER, 184* 337 Ilunford r. Artcher. of reasoning j but no member is answerable either for the reasons or the language of any other member. Each is respon- sible only for his own, and for the general conclusions and res- olutions in which, by his express votes, he may have united. The gross injustice, therefore, as well as inaccuracy in point of fact, of this statement as to what this court professed in the case of Smith. <$ Hoe v. Acker , is too manifest to require fur- ther illustration or remark. Nor are the unsoundness of the principle, the tendency to disorganization, and the manifest injustice of this new doctrine, at all relieved by the general tone and language in which it is put forth. They all constitute one -whole of unmixed char- acter, and of deep and unfeigned regret ; calculated only to bring our judiciary system into distrust with our own citizens, and discredit with the world ; and thus to impair the useful- ness, and ultimately break down this most important institu- tion of the state. To this end I know the distinguished author of this new and alarming doctrine would not willingly contrib- ute ; nor would he willingly have his name associated with such a result. I would, therefore, invoke the aid of his talents and the weight of his high personal and official character, rath- er in building up our judiciary system, in- sustaining and strengthening its separate parts, and in promoting the harmony of the whole ; and thus commending it to the increased confi- dence of our own citizens, and to the greater respect of the world. In regard to the case in hand, while I concur generally in the opinion of the supreme court, there is, among others, a point, and that a vital one, on which I differ altogether from that opinion. The circuit judge, in charging the jury at the trial, read to them the section of the statute applicable to the case, and submitted it to their consideration. If the judge had stopped here, he would have been considered as having adopt- ed the statute as a part of his charge, or as having charged the jury in the very language of the statute. This would have been unexceptionable. But when he subsequently charged 328 CASES IN THE COURT OF ERRORS. Hanford v. Artcher. that "if the jury found otherwise," (that is, that the assignment had not been accompanied by an immediate delivery, and fol- lowed by an actual and continued change of possession of the things assigned,) " if they found that the property remained in the possession of Norton until levied upon under the said exe- cution, then they must enquire whether there were any good reasons shown by the plaintiff \ which they could approve, why there had not been an immediate delivery, and an actual and continued change of possession" he misdirected the jury on an important point. Instead of directing them to the only enqui- ry in that case expressly prescribed by the statute, he led their minds to one not in terms embraced in its provisions, and cal- culated to present to them a false issue. This was error. In" stead of the enquiry thus directed by the circuit judge, he should have charged the jury that "if they, found the property remained in the possession of Norton until levied upon under the said execution, then they must enquire" whether it had been mad$ to appear, on the part of those claiming under the assign- ment, that the same was made in good faith, and without any intent to defraud creditors or subsequent purchasers. This would have been in the language and spirit of the statute. But the direction of the circuit judge gave an artificial, restricted, and erroneous interpretation to the statute ; an interpretation not in conformity with the law as finally settled by this court, and well calculated to mislead the jury. Therefore, although the circuit judge did submit the case to the jury, in pursuance of the statute, yet he- did so under an erroneous direction as to the law, which may be fairly supposed to hare misguided the jury, and to have led them to wrong conclusions. This was error ; and a verdict thus obtained should have been set aside and a new trial granted. Without going into a particular examination of the oth- er points presented in the case, I am of opinion that the charge of the circuit judge was wrong in the important respect above indicated, and that the judgment of the supreme court affirming the same was of course erroneous, and should be re- ALBANY, DECEMBER, 1842. 329 Alston v. The Mechanics' Mutual Insurance Company of Troy. versed, and a venire de novo awarded, with costs to abide the result. ROOT, senator, also delivered a written opinion in favor of reversing the judgment of the supreme court, and PAIGE, sena tor, an oral opinion in favor of affirming the judgment. On the question being put, " Shall this judgment be revers- ed ?" the members of the court voted as follows : For reversal : The PRESIDENT, and Senators BOCKEE, DICK- INSON, DIXON, FRANKLIN, HARD, HAWKINS, HOPKINS, HUNT, JOHNSON, NICHOLAS, PLATT, RHOADES, ROOT, RTTGER, VARNEY, and WORKS 17. For affirmance : The CHANCELLOR, and Senators BARTLIT, CORNING, FOSTER, PAIGE, SCOTT and VABJAN 7. Judgment reversed. ALSTON vs. THE MECHANICS' MUTUAL INSURANCE COMPANY IN THE CITY OF TROY. Where the insured, on applying for insurance upon a building against fire, promised the underwriters verbally that if they accepted the risk he would discontinue the use of a fire-place in the basement, and use a stove instead thereof; but, after obtaining the policy, omitted to perform his promise, in consequence of which the building was burned : Held, no defence to an action on the policy. The term representation, when used in reference to insurance contracts, imports an affirmation on the part of the insured of some past or existing fact, material to the risk ; not a statement as to matters resting merely in intention or expecta- tion. Per WALWORTH, chancellor. The case of Denniston v. Lillie, (3 Bligh's Rep. 202,) commented on and doubted. Per WALWORTH, chancellor. A representation in the nature of a promise or stipulation for future conduct on the part of the insured, must, in general, be inserted in the policy, or the underwriter! cannot avail themselves of it Per WALWORTH, chancellor, and BOCKXK, senator. VOL. IV. 42 330 CASES IN THE COURT OF ERRORS. Alston v. The Mechanics' Mutual Insurance Company of Troy. Parol evidence of what passed between the insured and underwriters at and previ- ous to the delivery of the policy, is not admissible for the purpose of adding to or varying its terms. Per WAIAVORTH, chancellor, and BOCKEE, senator. The general nature and effect of a misrepresentation, properly so called, adverted to and considered. Per WALWORTH, chancellor. ERROR to the supreme court. The action in the court below was upon a fire-policy on a building and some personal prop- erty belonging to the plaintiff, which bore date August 27th, 1838. The term of insurance was five years, commencing at the date of the policy. In the policy, the building was describ- ed as a brick dwelling-house and shop ; and, after setting forth the size of the building and its height above the basement, the policy added "which basement is privileged as a cabinet- maker's shop." The personal property covered by the policy consisted of " stock in trade in the cabinet business," house- hold furniture, wearing apparel and family stores. Among other conditions contained in the policy was this : " If the said David Alston [the plaintiff] shall make any misrepresentation or concealment, or if such building or premises shall be occu- pied in any way so as 'to render the risk more hazardous than at the time of insuring, this policy shall be void and of no effect." After issue joined in the court below the cause was referred. On the hearing, the plaintiff gave in evidence the policy, the preliminary proofs of loss, &c. and then called one Pratt, who testified as follows, viz. : Witness knows the building describ- ed in the policy ; it was burned down the last of August, 1838 ; plaintiff occupied the house, and had for some time occupied it as his own. It was totally destroyed except the brick. Wit- ness made out an estimate of the cost of the house, and it amounted to $1781, &c. Plaintiff is a cabinet-maker and had tools, stock in trade, &c. His shop was in the basement of the building. The witness further testified, on cross-examination, that he lived near the house and saw the fire. The first he saw of it, it appeared to be in the basement i. e. in the shop. This was between nine and ten o'clock in the evening. A fire ALBANY, DECEMBER, 1842. 331 Alston r. The Mechanics' Mutual Insurance Company of Troy. was kept in the shop, sometimes in the fire-place and some- times in the furnace a portable furnace for cooking and heat- ing glue. The defendants then called Lyman Garfield, their secretary, who testified to the following facts : On the 27th of August, 1838, the plaintiff called on the witness for the policy of in- surance, the application for it having been sent in sometime previously. Witness told the plaintiff the company had con- cluded not to accept the proposals ; adding, that he [the wit- ness] understood the plaintiff was using a fire in the fire-place of the cabinet-maker's shop [the basement story of the build- ing] and that the house had before taken fire from that cause. The plaintiff enquired where the president of the company [Mr. Starbuck,] resided. Witness informed him ; whereupon the plaintiff left, and in about half an hour returned with the president. Some conversation then ensued, and the plaintiff finally said : " I will abandon the use of the fire-place ; 1 have got a stove and will use that." Witness understood him he had a stove in the basement. Upon this statement, we agreed to give him the policy, and did give it to him. Mr. Starbuck, the president, was then called by the defen- dants and gave a more full statement of the conversation at the time alluded to by Garfield. He testified, among other things, that after the plaintiff was informed of the company's unwillingness to accept the risk, the plaintiff said : " Suppose I should abandon the fire-place in the basement, would you then take it ?" Witness thereupon consulted with the secreta- ry, and then spoke to the plaintiff, who said he would abandon the fire-place in the basemertt altogether ; that he would not use it himself nor suffer any other person to use it, but would use a stove which he had. Witness and Mr. Garfield then told the plaintiff if he would do that, they would take the risk, and it was taken accordingly. The building burned up two or three days afterwards. The using of a fire-place in the base- ment, instead of a stove, was material to the risk. The above testimony of Garfield and Starbuck was objected 332 CASES IN THE COURT OF ERRORS. Alston v. The Mechanics' Mutual Insurance Company of Troy. to by the counsel for the plaintiff in due season ; but the ref- erees were of opinion that it was admissible, and therefore overruled the objection. It appeared from other evidence given, that the plaintiff used the fire-place in the basement, for the purpose of cooking, the next day after the policy was delivered. His affidavit forming a part of the preliminary proofs of loss contained this clause : " I occupied at the time [of the fire] the basement or lower rooms [of the building] as a cabinet-maker's shop, for the. manufacturing of furniture, and believe, according to the best of my knowledge, that the fire originated in the last mentioned basement rooms, where I was at work late at night varnishing furniture, a fire being on the hearth at the time for that pur pose," &c. The referees reported in favor of the defendants, and the plaintiff afterwards moved the court below to set aside the re- port, but the motion was denied. A report of the case in that court, together with the opinion there delivered on denying the motion, will be found in I Hill, 510 et seq. After judgment, the plaintiff sued out a writ of error. V E. C. Litchfield fy Ji. Taber, for the plaintiff in error, insisted that the referees er-red in admitting the testimony of Garfield and Starbuck, as to the conversations which passed previous to and at the time of executing the policy. They cited and com- mented on the following authorities : 1 Phil. Ev. 547, 1th Lond. ed.; Cowen fyHUVs Notes to Phil. Ev. 1384 et seq.; id. 1467 et seq.; Greenl. Ev. 315, 316 ; Stackpole v. Arnold, (11 Mass. Rep. 27;) Atwood v. CoW, (16 Pick. 231 ;) Swick v. Sears, (1 Hill, 17 ;) Pawson v. Watson, (Doug. 785 ;) Wes- tonv. Ernes, (1 Taunt. 115 ;) Kainesv. Knightly, (Skin. 54;) Vandervoort v. Columbian Ins. Co., (2 Cain. Rep. 155, 161 ;) Park on Ins. 264, Lond. ed. of 1809 ; Hughes on Ins. 261, Am. ed. of 1833; Livingston Sf Crilchristv. The Maryland Ins. Co., (7 Cranch, 536 ;) 2 Marsh, on Ins. 450, Am. ed. of 1810 ; 1 Phil, on Ins. 214, 346, 7, 2d ed.; Pawson v. Barnevelt, ALBANY, DECEMBER, 1842. 333 Alston c. The Mechanics' Mutual Insurance Company of Troy (Doug. 12, n.;) Jefferson Ins. Co. v. Cotheal, (7 Wend. 80;) 1 Marsh, on Ins. 346, Am. ed. 1810 ; De Longuemare v. The Tradesmen's Ins. Co., (2 Hall, 589 ;) 1 Phil, an Ins. 23, 4, 2d ed. ; Higginson v. Dall, (13 JWim. .Rep. 96;) Loots v. Thatcher, (15 trf. 431 ;) 2 PAt7. Et>. 36, 1th Lond. ed. ; JMum- ford v. Hallett, (1 Jofoi. Rep. 439 ;) CAmo< v. Barker, (2 id. 351;) Parfo v. The General Int. Jss. Co., (5 Pick. 34;) Whitney v. Haven, (13 JWiws. .Rep. 172 ;) Bryant v. The Ocean Ins. Co., (22 Pi'cfc. .200 ;) Bayard v. Malcolm, (1 JoAn. .Rep. 461 ;) Boorman r. Johnston, (12 Wend. 573 ;) Levy and others v. Merrill and others, (4 Greenl. Rep. 180 ;) Catlin v. 7%c Springjield Fire Ins. Co., (1 Sumn. Rep. 434.) S. Stevens, contra, cited and commented on Edwards v. .Footf- ner, (1 Campb. 530 ;) and 1 Marsh on Ins. 450, ,/?m. . Anudon. for another, whether he became so by actual contract or by operation of law, if he is compelled to pay the debt which the other in equity and justice ought to have paid, he is enti- tled to relief against the other, who was in fact the principal debtor. And when courts of law, a long time since, fell in love with a part of the jurisdiction of the court of chancery, and substituted the equitable remedy of an action of assumpsit upon the common money counts, for the more dilatory and ex- pensive proceeding by a bill in equity in certain cases, they permitted the person thus standing in the situation of surety, who had been compelled to pay money for the principal debtor, to recover it back again from the person who ought to have paid it, in this equitable action of assumpsit as for money paid, laid out and expended for his use and benefit. The case of Exall v. Partridge and others, (8 T. R. 308,) was a case of this description. There, the carriage of the plaintiff Exall, being left upon leasehold premises, was dis- trained for rent reserved in a lease to the defendants, which rent they had covenanted with the landlord to pay ; and the plain- tiff had been compelled to pay the rent to prevent his carriage from being sold. In that case, it will be perceived, there was no privity of contract between the plaintiff and the defendants, nor any request that he should pay the rent for them. But by the seizure of his carriage upon the demised premises, he was placed in the situation of a surety for the payment of the rent which they, as the real debtors, were in equity and justice bound to pay ; and he was allowed to recover the amount thus paid, in the equitable action of assumpsit for money paid for their use. (See also Taylor v. Zamira, 2 C. Marsh. R. 220 ; and Carter v. Carter, 2 Moore $ Payne, 732.) The legislature of this state has adopted the same principle, where one person is compelled to pay taxes to save his land or other property from being lost, which taxes another person ought in justice and equity to have paid. (1 R. S. 410, 73 ; Id. 419, 6.) Under the peculiar circumstances of this case, and without reference to the supposed parol agreement to pay off the mort- 350 CASES IN THE COURT OF ERRORS. Hunt v. Araidon. gage, I think the decree of foreclosure, and the sale under it, was in equity an eviction ; and that the money paid by the plaintiff, to save his property from being sacrificed, was a pay- ment of money by the coercion of legal process for the use and benefit of the defendant Amidon. The plaintiff should there- fore have been allowed to recover it back in this equitable ac- tion of assumpsit for money paid and expended for his use. The case of McCrea v. Purmort, (16 Wend. Rep. 460, 5 Paige's Rep. 620, S. C.,) shows that, upon a bill filed in the court of chancery to compel the principal debtor to pay off the mortgage, and thus save the property from being sacrificed un- der a decree of foreclosure, that court may grant the appro- priate relief. And if so, I can see no good reason why the plaintiff Hunt should not be permitted to bid in the property himself under the decree of foreclosure, and then recover back the money thus paid in this form of action the amount being much less than Amidon would have been liable to pay, under his covenant of warranty, if the property had been purchased by a third person. For these reasons, I shall vote to reverse the judgment of the supreme court. ROOT, senator, also delivered a written opinion in favor of reversing the judgment of the supreme court. All the members of the court, seventeen being present, con- curring in this result, the judgment of the supreme court was unanimously REVERSED. ALBANY, DECEMBER, 1843. 351 Townsend . Hubbard. TOWNSEND and others vs. HUBBARD & ORCUTT. A sealed instrument, when executed by one acting as attorney, must be executed in the name of the principal, and purport to be sealed with his seal. Accordingly, where a covenant for the sale and purchase of lands was subscribed on- ly with the names of B., H. and O., and commenced thus : " Articles, &c. made, &c. between T. &c. by B. their attorney, of the first part, and H. and O. of the se- cond part, witncsscth ;" and the concluding clause was thus : " In witness where- of the said B., as attorney of the parties of the first part, and the said parties of the second part, have hereunto set their hands and seals," &c. : Held, that the covenant did not purport to have been executed by T. &c., and that they could not maintain an action upon it The case of Magill v. Hinsdale, (6 Conn. Rep. 464,) commented on and disap- proval. Per WALWORTH, chancellor. Less strictness is required where the instrument is not under seal ; it being suffi- cient, in such case, if the intent to bind the principal appear in any part of the instrument Per WALWORTH, chancellor. No particular form of words is necessary to be observed by the attorney, even in executing a sealed instrument, proved the words used import the requisite facts. Per WALWORTH, chancellor. Though a deed be executed by an attorney for several principals, it is not necessa- ry to affix a separate seal for each, provided it appear that the seal affixed was intended to be adopted as the seal of all. Semble ; per WALWORTU, chancellor. ON error from the supreme court. The action in that court was covenant, by John Townsend & James McBride, and Gideon Hawley, James King & Augustus James, trustees and executors of William James, deceased, survivors of Isaiah Town- send, deceased, against Caleb Hubbard and Darius A. Orcutt, on a sealed contract in these words : " Article of agreement, made the twenty-fifth day of No- vember, in the year of our Lord one thousand eight hundred and thirty-five, between Isaiah Townsend and John Townsend of the city of Albany, James McBride of the city of New-York, Gideon Hawley, James King and Augustus James, trustees and executors of William James deceased, also of the city of Albany, by Harvey Baldwin of the village of Syracuse, their attorney, of the first part, and Caleb Hubbard and Darius A. 352 CASES IN THE COURT OF ERRORS. Townsend v. Hubbard. Orcutt, of the second part, witnesseth : The said parties of the first part, for and in consideration of the sum of one dollar to them in hand paid by the said parties of the second part, do cove- nant and agree for themselves, their heirs and assigns and le- gal representatives, to and with the said parties of the second part, their heirs and assigns and legal representatives, to sell and convey to them the following described piece or parcel of land, to wit : being lots number four and five in block num- ber one hundred and thirty-six, and lots number two and three in block number one hundred and forty-five in the village of Syracuse, according to a survey by Calvin Guiteau, for the sum of four thousand and one dollars, one dollar of which is paid in hand as above ; and on payment of the remaining sum of four thousand dollars, with the interest thereon, at the rate of seven per cent, per annum, at the times hereinafter covenated to be paid, the said Isaiah Townsend, John Townsend and James McBride, or their legal representatives, will execute to the said parties of the second part, or their legal representa- tives, and the said Gideon Hawley, James King and Augustus James, or their successors, will execute to the said parties of the second part, or their legal representatives, a good and suf- ficient deed of the same, with covenants of warrantee on the part of the said Isaiah Townsend, John Townsend and James McBride, and with the usual covenants of the said trustees against their own acts and deeds impeaching the title to the premises in question, subject to the conditions and exceptions contained in the original patent of said land, and to all taxes assessed or charged thereon after this date. And the said par- ties of the second part, for themselves, their heirs and assigns and legal representatives, do covenant and agree to and with said parties of the first part, and their legal representatives, to pay to them the sum of four thousand dollars in three equal payments, at two, four and six years from the date hereof, with interest as aforesaid on the whole sum, payable annually ; and to enclose said Ipt within five months from the date hereof by a good board fence. And in default of payment of principal or interest, at the times and in the manner above specified, then ALBANY, DECEMBER, 1842. 353 Townaend r. Hubbard. and in that case the said parties of the first part shall be at liberty to avoid this contract and re-enter upon said premises without notice to quit, and may sell the same to any other per- son ; and, in such case, said parties of the second part shall im- mediately give up possession of said premises. In witness whereof, the said Harvey Baldwin, as attorney of the parties of the first part, and the said parties of the second part, have hereunto set their hands and seals the day and year first above written. HAKVEY BALDWIN. [L. s.] CALEB HUBBARD. [L. s.] D. A. ORCUTT. [L. s.]" Endorsed " I hereby countersign and approve the within con- tract. In witness whereof I have hereunto set my hand and seal this 25th day of November, 1835. ISAIAH TOWNSEND. [L. s.]" The declaration set forth the agreement as having been made by the plaintiffs and Isaiah Townsend deceased, by Harvey Bald- win their attorney in fact, and averred, among other things, that, by the said agreement, the plaintiffs agreed to sell &c. The breaches assigned were, the non-payment of interest for the years ending on the 25th of November, 1836, 1837 and 1838, and also the non-payment of the first instalment of the principal. Af- ter craving oyer of the agreement, the defendant set it forth, with the endorsement thereon, and demurred to the declaration specially, assigning the following causes : 1. The declaration alleges that the agreement was made by the plaintiffs and Isaiah Townsend deceased, by Harvey Baldwin their attorney in fact, of the first part, and the defendants of the second part ; whereas, by the oyer of said agreement, it appears that the same was made between Baldwin and the defendants, and that the plaintiffs and Isaiah Townsend were not parties thereto : 2. The covenants of the defendants are void for want of conside- ration : 3. The said covenants are void for want of mutuality. The plaintiffs joined in demurrer, and the court below gave judg- VOL. IV. 45 354 CASES IN THE COURT OF ERRORS. Townsend v. Hubbard. ment in favor of the defendants for the reasons stated in the opinion of Bronson, J. in the case of Townsend and others v. Corning, reported in 23 Wend. 435 et seq. After judgment, the plaintiffs sued out a writ of error. J. V. L. Pruyn, for the plaintiffs in error. The agreement purports, on its face, to have been made between the plain- tiffs and Isaiah Townsend of the one part, and the defendants of the other ; Baldwin being described in it as attorney of the plaintiffs, and not as a party. The seal makes no differ- ence. The agreement is executory, for the conveyance of land at a future day, and no seal was necessary to render it valid or obligatory. (2 R. S. 135, $ 8, 9.) It is therefore one of those unsolemn instruments, like agreements relating to personal property, to which the rule respecting deeds required to be un- der seal, does not apply ; and it is sufficient that the intent of the parties appears to have been to bind the principals, and not merely the agent. (Com. Dig. tit. Fait, (B.) (D. 1;) id. tit. Attorney ) (C. 14 ;) Hamm. on Parties, 18 ; Story on Jjg. 139 146, 150154 j Bowen v. Morris, 2 Taunt. 374 ; 3 Jim. Jurist, 78 et seq. ; Evans v. Wells, 22 Wend. 324, 335, per Walworth, chancellor ; id. 339-: 341, per Verplanck, senator; Mauri v. Heffernan, 13 John. R. 58 ; Rathbon v. Budlong, 15 id. 1 ; Wilks v. Back, 2 East, 142 j Combes' case, 9 Co. 75, 77 j Frontin v. Small, 2 Ld. Raym. 1418 ; Anonymous, Moor. 70, pi. 191 ; Bogart v. De Bussy, 6 John. R. 94 ; Pentz v. Stanton, 10 Wend. 271.) The covenants in the agreement are independent ; and, as the seals of the defendants import a consideration, they are bound upon this issue, whether the plaintiffs are or not. (Chit. PL 115, old ed., and cases there cited ; Lutw. 305 ; Com. Dig. tit. Covenant, (A. 1) ; Livingston v. Tremper, 4 John. R. 416 ; Cunningham v. Morrell, 10 id. 203 ; Goodwin v. Holbrook, 4 Wend. 377.) Again : sufficient mutuality appears on the face of the agreement. The written undertaking of the plaintiffs' agent binds them to fulfil the obligations imposed by the agree- ALBANY, DECEMBER, 1842. Townsend t>. Hubbard. ment ; and it is not necessary that they should be bound by seal. (Egerton v. Mathews, 6 East, 307 ; Ballard \. Walker, 3 John. Cos. 60 ; Roget v. Meri-itt, 2 Cat. 117, 120 ; Mien v. Bennet, 3 Tauntf. 169 ; Van Reimsdyk v. JSCanc, 1 Gallis. 630 ; Clark's ex'rs v. Kan Riemsdyk, 9 Crunch, 153.) Trustees having legal estates are as competent to contract by attorney, as if their title were unconnected with any trust. Ji. Taber < & Cady, for the defendants in error. The agreement is inoperative and void for want of mutuality. Although its terms import that the plaintiffs entered into cer- tain covenants with the defendants, yet it appears that neither the iiames nor seals of the plaintiffs were affixed to it. It is clear also that the attorney agreed to nothing. The contract is therefore unfinished and cannot be enforced by action. Again : the agreement is without consideration. That which might otherwise be imported by the defendants' seals, is contradicted by the terms and effect of the instrument itself. A seal to a void instrument affords no evidence of a consideration. (Jack- son v. Florence, 16 John. 47 ; Jackson v. Pike, 9 Cowen, 69, 71, 72, and the cases there cited ; Moor. 70, pi. 191 j Combes' case, 9 Co. 75, 77; Frontin v. Small, 2 Ld. Raym. 1418 ; Str.105,S. C. j Tovmsend v. Corning, 23 Wend. 435, 441, and the cases there cited j Bac. Jlbr. tit. Leases 4*c. (/) 10 j Paley on Jig. (by Lloyd) 153, 154, 181 ; Story on Jg. 137 et scq., 147151 ; 2 Kent's Com. 631 j 3 Jim. Jurist, 65 86 j Com. on Con. 3.) The provisions of the revised statutes which are supposed by the plaintiffs in error to make the con- tract in question an unsolemn instrument, are as old as the 29M Charles 2, and were originally enacted to require more (not less) solemnity in the execution of such contracts than was previously necessary. (8 Pick. Stat. at Large, 405, 1, 2, 3 ; 1 Laws of JV. 7. p. 79, 10, Kent ff Rod. ed. ; 1 R. L. of 1813, p. 78, 10 ; 2 R. S. 135, 8, 9 j Com. Land, tf Ten. 54, 55.) Whether an instrument be solemn or unsolemn, in the sense of the rule on this subject, depends upon whether it is sealed or not. A deed is always a solemn instrument, without 356 CASES IN THE COURT OF ERRORS. Townsend v. Hubbard. reference to its subject matter. All the contracts which have been declared void under the rule for which we contend, were such as might have been effectually made without seal, both at common law and under the statute to prevent fraudulent con- veyances. As the agreement is not sealed by the plaintiffs, they are strangers to it and cannot enforce it by action. (Com. Dig. tit. Fait, (C. 2,) notes (/c) and (/), Day's ed.; Spencer v. Field, 10 Wend. 87, 91, 92 ; Southampton v. Brown, 6 Barn, # Cress. 718.) There is a substantial variance between the agreement de- clared on and the one of which oyer is given. The declaration, describes the agreement as having been made between the plaintiffs and defendants, whereas the oyer is of an agreement between Baldwin and the defendants. Again : the covenant declared on is one by which the 'plaintiffs agree to sell land ; while that produced on oyer is one in which the plaintiffs agree to nothing, they not being parties to it. (Jeffery v. White, Doug. 476.) It appears moreover, by the record, that the plaintiffs, as trus- tees and executors, undertook to make the agreement in question ly attorney, and no power thus to contract is alleged. This is a fatal objection ; for trustees or executors cannot sell land by at- torney. (Hawley v. James, 5 Paige, 318, 487 ; 1 Sugd. on Pow- ers, 222, 6th, Lond. ed. ; Berger v. Duff, 4 John. Ch. 368, 369 and the cases there cited j 1 Chit. PI. 285, 286, ed. of 1833.) WALWORTH, Chancellor. The question in this case arises upon a demurrer to a declaration in covenant upon a sealed instrument, stated in the. declaration to have been an aoree- * O ment between the plaintiffs and I. Townsend deceased, by H. Baldwin their attorney, of the first part, and the defendants of the second part, whereby the parties of the first part agreed to sell and convey, and the defendants agreed to purchase and pay for certain lots at Syracuse. As we cannot look beyond the declaration for the purpose of ascertaining the real state of ALBANY, DECEMBER, 1842. 357 Townaend v. Hubb&rd. facts in this case, we must, for the purposes of the decision which is now to be made, take it for granted that Baldwin was duly authorized by the plaintiffs and Isaiah Townsend, to make a contract for them and in their names, under seal, to sell and convey the lands mentioned in the instrument declared on, so as to make a valid contract for such sale under the provisions of the present statute of frauds; which statute requires the contract to be in writing and to be subscribed by the parties by whom the sale is to be made, or by their agent lawfully author- ized. (2 R. S. 135, 8, 9.) On the other hand, we are not to inquire whether, if there has been an imperfect execution of the contract by the attorney, there has been such an execu- tion thereof as to entitle the plaintiff to a specific performance in equity. But the point presented for our consideration, upon this writ of error, is a dry question of law, whether the agree- ment set out in the declaration was executed in such a manner as to authorize the plaintiffs to recover thereon against the de- fendants, in this form of action, as upon an agreement, under seal, between the plaintiffs and Isaiah Townsend deceased, and these defendants. In an agreement not under seal, executed by an agent or attor- ney in behalf of his principal, and where the agent or at- torney is duly authorized to make the agreement, it is sufficient, as a general rule, if it appears in any part of the instrument that the understanding of the parties was that the principal, and not the agent or attorney, was the person to be bound for the fulfilment of the contract. And even in the case of a seal- ed instrument, executed by an attorney duly authorized by a power under seal, no particular form of words is necessary to render it valid and binding upon the principal, provided it ap- pears upon the face of the instrument that it was intended to be executed as the deed of the principal, and that the seal affix- ed to the instrument is his seal and not the seal of the attorney or agent merely. (Wilks v. Back, 2 East's Rep. 142.) And where the deed is executed for several parties, it does not ap- pear to be necessary to affix a separate and distinct seal for 358 CASES IN THE COURT OF ERRORS. Townsend v. Hubbard. each, if it appears that the seal affixed was intended to be adopted as the seal of each of the parties. (Perkins, 59, 134 j Lord Lovelace's case. Sir Wm. Jones' Rep. 268 ; Ball v. Dun- sterville, 4 T. R. 313.) (a) But where it distinctly appears from the deed or instrument that the seal affixed thereto is the seal of the attorney and not o.f the principal, the latter cannot be made liable in an action of debt or covenant, as upon a spe- cialty ; nor will such deed or instrument pass any title or inter- est belonging to him which by law requires a deed or instru- ment under seal to transfer or discharge it. Thus, in the anony- mous case from Moore, referred to in the opinion of Justice Bronson i-n this case, where the king's surveyor was empower- ed by letters patent from the crown to make leases of certain lands for him for life, reserving the ancient rents, and a lease was made by him in the name of the king as the party of the first part, and J. S. of the second part, whereby, as stated in the lease, the king demised the premises to J. S. for life &c. ; but in the in testimonium clause, at the close of the instrument, it was stated that the said surveyor had thereunto set his hand and seal, the court held the lease void, because it was not seal- ed in the name of the king, but by the surveyor in his own name. That case appears to run on all fours with the one under consideration, so far as regards the question whether the in- strument declared on here is to be considered the deed of the plaintiffs. For the concluding clause of the instrument in the present case is, "In witness whereof, the said Harvey Baldwin, as attorney for the parties of the first part, and the said parties of the second part, have hereunto set their hands and seals the day and year first above written. Harvey Bald- win. (L. s.) Caleb Hubbard. (L. s.) D. A. Orcutt. (L. s.") And the more recent case of Berkley v. Hardy, in the court of (a) See SPDilPs lessee v. MDill, (1 Dull. Rep. 63,) Bohanans v. Lewis, (3 Monroe, 376 ;) Yarbarough v. Monday, (2 Dev. Rep. 493 ;) Stabler v. Cowman, (7 Gill 4- John. 284.) ALBANY, DECEMBER, 1842. 359 Townsend v. rlubbard. king's bench in England, (5 Barn. . The People. Assembly Journ. of 1812, p. 7, 333 ; Assembly Journ. of 1818, p. 5 ;) nor is it repugnant to 15 of art. 4 of the constitu- tion. 4. The certificate of the secretary of state stating the day, month and year when the act in question became a /ato, is conclusive evidence of a compliance with all the forms requi- site to its enactment, and precludes any enquiry aliunde. (1 R. S. 157, 10, 11; id. 183, 4,< Warner v. Beertj 23 Wend. 167.) WALWORTH, Chanccellor. The writ of error in this case is brought for the purpose of settling the question as to the right of the aldermen of the city of New- York to exercise the duties of justices of the peace in holding the court of general sessions in that city, under the act of the 14th of May, 1840. In the case of The People v. The Mayor and Al- dermen of New- York, (25 Wend. Rep. 9,) where the question arose as to the right of those officers to exercise the duties of judges of the court of common pleas under the provisions of the constitution of this state, I endeavored to show that the aldermen of the city were, at the adoption of the new constitu- tion, elective judges of that court, and were therefore embraced by the section of the constitution which provided that all offi- cers theretofore elective by the people should continue to be elected. And that this section, therefore, as to these officers, formed an exception to the clause of the constitution requiring all judicial officers, except justices of the peace, to be appoint- ed by the governor with the consent of the senate, and that judges of the county courts should hold their offices for five years ; in the same manner that another section making certain elective officers ex ojficio members of this court, was an excep- tion to the general provision as to the mode of appointing judi- cial officers. I then showed, by a reference to the city charter that the aldermen of New-York had not only been justices of the peace, but also elective judges of the court of common pleas or mayor's court, for more than a century and a half. And that the term alderman had been used to designate an offi- 388 CASES IN THE COURT OF ERRORS. Purdy v. The People. M - cer having judicial as well as civil' power, in England, for a period which extended back even beyond the Norinan conquest. I may now add, that the introduction of the laws df Normandy into England was not likely to deprive the aldermen of their judicial powers ; for a similar class of elective judicial and mu- nicipal officers had existed in the cities of France, under the name of EchevinSj or aldermen, from the earliest period of the French history. And their election by the citizens to discharge such duties was recognized in the capitularies or statutes of Charlemagne. (6 Guyotfs Repert. 599 Merlin's Repert. Jlrt. Echevins,} But as the judgment of the supreme court was affirmed here by a tie vote, the right of the mayor and aldermen of New-York to sit as judges of the county or mayor's court of that city is still undecided by this court. That question, however, does not arise in the present case ; for the aldermen never claimed the right to sit in the courts of general and special sessions of the peace as judges of the coun- ty court ; but in their character of justices of the peace of the city of New- York. And in the case of Clark v. The People, (26 Wend. Rep. 599,) this court almost unanimously decided that the clause in the constitution requiring judicial officers to be ap- pointed by the governor with the consent of the senate did not apply to justices of the peace in cities. The courts of general and special sessions of the peace throughout the state were, at the adoption of that constitution, holden by judicial officers in their characters of justices of the peace only ; the judges of the courts of common pleas having a distinct commission for that purpose in the general commission of the peace for each county. The courts of common pleas only were called coun- ty courts at that time. And though the courts of oyer and ter- miner and the courts of general sessions of the peace were in fact county courts, I do not believe the framers of the constitu- tion intended to declare that the judges of these two courts should hold their offices for five years. That the first legisla- ture which assembled under the new constitution did not so un- derstand it, is evident from the fact that they authorized courts ALBANY, DECEMBER, 1842. 339 Pnrdy t>. The People. of general sessions of the peace to be holden, in certain cases, by justices of the peace ; and courts of oyer and terminer in New-York to be holden by aldermen. I have no doubt, there- fore, of the power of the legislature to direct courts of oyer and terminer, and courts of general and special sessions of the peace, to continue to be held by the same class of judicial officers ; although they do not all of them now derive their authority to act as justices of tlie court of oyer and terminer or of general sessions, by an appointment of the governor and senate. That the existence of such a piower was not doubted by those who voted for the act of May, 1840, for the better organization of the criminal courts of the city and county of New-York, is evident from the fact that the third section of that act not only authorizes, but makes it the duty of two' of the aldermen to at- tend with the recorder, or one of the judges, for the purpose of holding a court of special sessions of the peace for the trial of a certain class of criminal offences ; which court of special sessions is as much a county court as the court of oyer and ter- miner or general sessions, although it is restricted in its juris- diction to the trial of minor offences only. Any other construc- tion of the constitution, indeed, would render inoperative and void the provisions of the revised statutes which authorize jus- tices of the peace to hold courts of special sessions in other parts of the state, or to be associated with a county judge in forming a court of general sessions in the absence of a quorum of the judges of the court of common pleas. (See 2 JR. S. 208, 4 ; Id. 224, 3.) The courts of general and special ses- sions in the city of New- York, in which aldermen of the city, in their characters of justices of the peace, were associated with the mayor, recorder, or the first judge, or an associate judge of the court of common pleas, appear, therefore, to have been legally and constitutionally organized, previous to the act of May, 1840. And it remains to be considered, whether that act has been constitutionally passed, and, if so, whether it has, either in terms or by necessary implication, deprived the aldermen of the city of the power which they had before pos- 390 CASES IN THE COURT OF ERRORS. Purdy v. The People. essedj from the time of the granting of governor Dongan's charter in 1686, of being justices of the peace and associate justices in the court of general sessions of the peace for the city. (See Charter of 1686, 9.) As the fact, that the act of May, 1840, was not passed by a vote of two-thirds of the members elected to each branch of the legislature, was conceded by the attorney general upon the ar- gument of this case in the court below, it is not necessary here to inquire in what way the question whether a law re- quiring a vote of two-thirds has been passed by a constitutional majority, is to be tried or determined. I am inclined to think, however, Justice Bronson is right in supposing that, to give full effect to the provision of the constitution requiring a vote of two-thirds of the members of each house to pass certain stat- utes, courts must look behind the printed statute book, in some way, for the purpose of ascertaining whether this constitutional provision has been complied with j and that the certificate of the secretary of state cannot be considered as conclusive upon the question that the law was passed by a constitutional major- ity. For it could never have been the intention of the legisla- ture to give to the secretary of state the exclusive right of de- ciding whether any of the provisions of a statute, which had been passed by a majority vote only, required a vote of two- thirds. The certificate which the secretary is required to en- dorse upon the bill, relates rather to the time when such bill became a law, than to the fact that it was passed by a constitu- tional vote of two-thirds ; when all or any of its provisions re- quire that it should be passed by such a vote. And the re- vised statutes having only declared the certificate of the secre- tary to be conclusive evidence of the facts contained therein, if he does not certify that it was passed by two-thirds of the members elected to each branch of the legislature, his certifi- cate is not evidence that it was so passed ; when such an in- quiry becomes material in reference to the validity of any of the provisions of the law. The legislature has declared by law that no bill shall be deemed to have passed by a two-third vote ALBANY, DECEMBER, 1842. Purdy c. The People. unless it is so certified by the presiding officer of each house. And I am inclined to the opinion that such a certificate, rather than the certificate of the secretary of state specifying the time when the law was passed, is to be considered the only legal evidence that the bill was in fact passed with the assent of two- thirds of all the members elected to each branch of the legisla- ture. (See 1 R. S. 156, 3.) The question whether the legislature can, by a majority vote, enlarge, alter, or abridge the political powers, rights, or privi- leges of a municipal corporation, is one upon which judges as well as legislators have frequently differed. And notwithstand- ing the elaborate argument of the counsel who opened this case, and the very able opinion delivered by Mr. Justice Bronson in the court below, I still adhere to the opinion expressed by me in this court in the case of Warner v. Beers, (23 Wend. Rep. 126,) that such legislation is not within the mischief which this provision of the constitution was intended to guard against j and therefore was not in the contemplation of the convention which framed this restriction, nor of the people of the state who adopted it. I therefore think the act of May 1840, was constitutionally passed by a majority vote ; although it does alter and to a certain extent abridge, the political rights of the corporators in this municipal corporation. For I admit that the election of their own magistrates has from time immemo- rial been considered by municipal corporations as an important political right. Most of the charters of municipal corporations in England, secured to the corporators that right, to a greater or less extent. And it was to deprive the corporators of Lon- don of such right, that Charles the second caused the proceed- ings upon a quo warranto to be instituted against them ; to enable him to control judicial proceedings within the city by destroying its charter of incorporation. Having arrived at the conclusion that the legislature had the constitutional power to pass the act of May 1840, by a majori- ty vote, without expressing any opinion as to the justice or ex- pediency of thus interfering with chartered rights without the 392 CASES IN THE COURT OF ERRORS. Purdy v. The People. consent of the corporation, with which question, as a court, we have nothing to do, I will proceed to examine the ques- tion to which the counsel who last addressed the court, con- fined his argument. Does the act of 1840, either in terms or by necessary implication, deprive the aldermen of the right, which was secured to them by the charter of the city, to sit as justices of the peace in the court of general sessions, in con- nection with the recorder and the judges whose appointment is provided for by that act 1 It is a general rule that statutes in the affirmative do not re- peal or take away precedent acts or rights affirmative. Hence it was insisted, by the counsel for the plaintiffs in error who last addressed us, that the act of 1840, did not in terms take away from the aldermen the right, which they before had, to sit in the court of general sessions. The 5th section of the act, abolishing the per diem allowance which had been pre- viously allowed to aldermen while sitting in that court, also seemed to favor the conclusion that the legislature did not in- tend to deprive the aldermen of the right to sit and act as mem- bers of the court in connection with the recorder and judges, if they thought proper to do so without compensation. For there appears to have been no reason for declaring by statute that the aldermen should not receive a per diem allowance for discharging their duties as members of the court, if it was the intention of the legislature to deprive them absolutely of the power to sit or act as such members under any circumstances. The first section of the act, however, appears to have been framed with a view to exclude the mayor and aldermen of the city from sitting in the court, altogether. While the 10th sec- tion has, in a most unaccountable manner, associated the mayor with the recorder and the other two judges of that court and the county judges, as a board of officers for the appointment of the district attorney ; and this too, in direct violation of the provision of the constitution which directs that district at- torneys shall be appointed by the county courts. But what- ever construction might be put upon other provisions of this ALBANY, DECEMBER, 1842. 393 Pordy e. Tho People. act, it will be seen, by referring to the last section, that all the provisions of the revised statutes which authorized the mayor or aldermen to sit and act as members of the court of general sessions, are in terms repealed. And the general repealing act, of the 10th of December, 1828, had before repealed all other statutes on the subject. It is true the charter of 1730 remains as it was before it was altered by the acts which are thus re- pealed. But the 26th section of that charter, which author- ized the mayor, recorder and aldermen, to hold courts of gener- al sessions of the peace quarter-yearly, for a term not exceed- ing four days, would not authorize the mayor and aldermen to sit in the courts of general sessions, with the recorder and as- sociate judges, as organized by the act of May, 1840 ; which courts are to commence on a different day of the week, and to continue four weeks, instead of four days. The result is, that the act of 1840 has absolutely deprived the mayor and alder- men of New-York of the power that they had before exercised and enjoyed, of sitting in the court of general sessions of the peace, as justices thereof. I am therefore compelled to vote to sustain the decision of the majority of the justices of the su- preme court. For the fact that one of the sections of the act of May, 1840, is admitted to be in direct conflict with the pro- visions of the constitution, does not render the other parts of that act inoperative and void. PAIGE, Senator. The principal question in the present case is, whether the act entitled " An act for the better organization of the criminal courts in the city of New- York," passed May 14th, 1840, comes within the 9th section of article 7th of the constitu- tion of this state, requiring the assent of two-thirds of all the members elected to each branch of the legislature for the passage of every bill creating, continuing, altering or renewing any body politic or corporate. It is not denied that the city of New-York is a body politic and corporate j and I think it cannot be denied that the act in question, if constitutionally passed, alters the charter of that city. The power to hold courts of general VOL. IV. 50 394 CASES IN THE COURT OF ERRORS. ; ; , Purdy v. Tho People. sessions of the peace in and for the city and county of New- York, was a franchise vested in the corporation by the charter of 1730, to be exercised by the mayor, deputy-mayor, recorder and aldermen j and the act of May, 1840, by taking from the aldermen their right to sit as judges in that court, so far alters the body politic and deprives it of this franchise. The act was passed as a mere majority bill. This appears from an examination of the journals of the senate and assembly, and from an inspection of the original bill on file in the office of the secretary of state. The latter is certified by the pre- siding officers of the two houses respectively, in the usual form of certifying majority bills. The revised statutes expressly declare, that " no bill shall be deemed to have been passed by the assent of two-thirds of the members elected &c., unless so certified by the presiding officer of each house." (1 R. S. 156, ^ 3.) We have a right I think to go behind the printed statute book in order to ascertain whether bills have been con- stitutionally passed. Judges, who are bound to take notice of a public act, must determine this question by an inspection of the record ; for nul tiel record cannot be pleaded to a statute. (Dwarr. on Stat. 630, 665 ; Com. Dig. lit. " Parliament ," (R. 5 ;) The Prince's case, 8 Coke's Rep. 28 ; Rex v. Robotham. 3 Burr. 1472.) This was the opinion of Senator Verplanck, and President Bradish, as expressed by them in the case of War- ner v. Beers, (23 Wend. 103 ;) and Mr. Justice Bronson ar- rived at a like conclusion in the present case when it was be- fore the supreme court* The principal question then recurs : Does the act of May 1840 come within the 9th section of the 7th article of the con- stitution 1 The language of the clause is, " The assent of two- thirds of the members elected to each branch of the legislature, shall be requisite to every bill creating, continuing, altering or renewing, any body politic or corporate." I have already stated it as my opinion that the act is one altering the charter of a corporation ; an act which, if sanctioned by us and carried I into effect, must result in depriving the city of New- York of an ALBANY, DECEMBER, 1842. 395 Purdy v. The People. essential portion of its franchises. If this be conceded, there would seem to me to be no necessity for further enquiry in the present case. Not having received the assent of two-thirds of the members elected to each branch of the legislature, the act in question belongs to that species of irregular legislation which the constitution has expressly forbidden. It is therefore ut- terly void. But it has been said that this clause in the constitution does not extend to public, but only to private corporations. Its terms, however, are comprehensive, explicit and unambiguous. They express, with a distinctness and force which to my mind is irresistible, an intention to include all corporations, whether public or private. Nor is any thing to be found in other parts of the instrument tending in the remotest degree to qualify the language, or restrain the universality of its applica- tion. What right then have we, who are obligated to maintain the constitution, to recognize and act upon an exception which its framers have virtually told us they designed to exclude ; to interpolate words which they have omitted, or subvert the plain meaning of those they have introduced 1 At the period of the adoption of the constitution, and for a long time previous, there were in this state public corporations as well as private a fact familiar to every member of the convention. If they had in- tended to exclude public corporations from the operation of the section under consideration, they knew how to express that intention, and would have done so. It was said, in argument, that public corporations, such as cities and villages, are neither within the object, intent or mis- chief of this provision of the constitution j and it was asked, whether such was the case with respect to towns and counties ? These, however, were not corporations at the time of the adop- tion of the constitution ; nor are they corporations even now, in the proper sense of that term. They are only quasi corpora- tions, and were made such by the revised statutes. (See Re- visers 1 Notes, 3 R. S. 482, 490 j 2 Kent's Comm. 278 ; Jack- son v. Hartwell, 8 John. Rep. 422 ; Hornbeck v. Westbrook, 9 396 CASES IN THE COURT OF ERRORS. Purdy v. The People. id. 73.) I am aware of the case of North ftempstead v. Hemp- stead, (1 Hopk. Ch. Rep. 288,) in which Chancellor Sanford said, that the towns of this state were bodies politic of a spe- cial character, with limited powers ; and that, as such, they had capacity to hold property. But his opinion goes no fur- ther than to maintain, that where lands are granted to a town, by patent from the sovereign source of power, such patent cre- ates it a body politic for the purpose of holding and managing the lands. Previous to the revised statutes it was repeatedly adjudged that towns and counties, as such, were not corpora- tions. Accordingly, in Jackson v. Cory, (8 John. Rep. 385,) it was held, that the people of a county, not being a corporate body known to the law, could not take by grant from an indi- vidual. The same thing was virtually held in the subsequent case of Hornbeck v. Westbrook, (9 John. Rep. 73,) with re- spect to a grant to the people of a town. As towns and coun- ties, therefore, were not even corporations sub modo, at the time of framing the constitution, it is impossible that any ar- gument applicable to the present case can be derived from the supposed inconvenience of subjecting them to the influence of the clause in question. The learned chief justice of the supreme court in The People v. Morris, (13 Wend. 325,) and again in The People, ex rel. Lynch, v. The Mayor fyc. of New-York, (25 Wend. 684,) has stated the distinction between public and private corporations. In the latter case, he said, that a public corporation relates ex- clusively to the public concerns of the corporators, and " is the embodyment of political power for the purposes of public gov- ernment ;" while a private corporation, he further observed, " relates to the private rights and interests of the corporators" &c. It may be admitted that public corporations are not only useful instruments for the local government of dense popula- tions, but that they are in most cases entirely unobjectionable. This admission, however, does not advance us one step in the demonstration that they are not within the meaning of the two- third clause in the constitution. The phraseology of that clause ALBANY, DECEMBER, 1842. 397 Purdy v. The People. is so clear, and at the same time so broad, that no one pretends it does not embrace public as well as private corporations. Upon what principle then, are we authorized to say that the intent was different from what the words themselves plainly import? How can we know but that some members of the convention were unfriendly to the general course of previous legislation in regard to the chartering of cities and villages ; and therefore intended to subject all future legislation on that subject to the influence of this fundamental law 1 They may have thought some such restraint upon the legislature was important to pro- tect the people of the country towns from certain extraordina- ry powers usually granted to municipal corporations ; as for ex- ample, the power of regulating the markets, thus enabling them to interfere with the freedom of trade. But it appears from the debates in the convention, that the framers of the constitution adopted the clause in question with the distinct understanding that, as it now stands, it would em- brace public corporations. To the objection there made that the clause, in terms, required a vote of " two-thirds of the legis- lature to incorporate a village, bridge or turnpike," it was an- swered, that " two-thirds would never be wanting to incorpo- rate a village or a turnpike ;" whereupon an amendment limit- ing the clause to " bank or moneyed institutions," which had been previously proposed, was withdrawn, and the section in its present form unanimously adopted. (Carter fy Stone's Debates in Conv. 446.) Thus we are furnished with unequivo- cal affirmative evidence that the framers of the constitution intended, not to exclude public corporations, but to include them. If it be allowed us to disregard the plain language of the constitution, and to go out of it in search of some conjectural intent of its framers which the words themselves do not ex- press, we should be giving to the clause under consideration too broad a construction, in the opinion of many, were we to declare even that it includes all private corporations. The mischief intended to be guarded against, it has been said, was 398 CASES IN THE COURT OF ERRORS. Purdy v. The People. the too rapid multiplication of bank charters, and the legisla- tive corruption which their creation induced. Now, following the guidance of those who entertain this opinion, we should perhaps be bound to give such a construction to the provision as would exclude from its influence every private corporation, except those authorized to carry on the business of banking. And thus, not only public corporations, but also all turnpike, bridge, canal, rail-road, religious, insurance, manufacturing, literary and eleemosynary corporations, would be excluded from the operation of this clause of the constitution ; yet all these are private, except literary and eleemosynary corporations, and even they are so when founded and endowed by pri- vate benefactors. (2 Kent's Com. 275, 4M ed.) It requires no gift of prophecy to foretell the results which must flow from such a course of adjudication by this court. Already have we, by lending too unguarded an ear to arguments in favor of a latitudinarian mode of interpreting the constitution, struck out from the operation of the two-third clause, the identical corpo- rations which are now admitted by every one to be within the evil intended to be remedied. The case of Warner v. Beers, (23 Wend. 103.) consummated this judicial miracle : and if, \ // ** * countenancing another of these untoward attempts to free the legislature from the restraints of fundamental law, we declare in the present case that all public corporations are also to be excluded from the operation of the section, it may as well be pronounced a dead letter at once. For one, I cannot consent to " palter in, a double sense" with any part of the constitution ; especially not, with the section under consideration. Through no agency of mine shall it be made to ll keep the word of promise to the ear, and break it to the hope." I trust that, in reference to the present case, this court will not hesi- tate to array itself in favor of the old and revered doctrine of strict construction the only sound and safe doctrine for the governance of either judges or legislators. If courts are allowed to depart from it, and venture upon the perilous ALBANY, DECEMBER, 1842. 399 Purdy t>. The People. experiment of substituting, for the clear language of the in- strument, their own notions of what it ought to have been or what its framers intended, there will be an end of written constitutions, and of all attempts to fix limits to legislative and judicial power. In this case, it appears to me, there can be no room for doubt, either as to the meaning of the words used in the consti- tution, or as to the intention of its framers. And to confirm the views already expressed, I will add, that the entire current of legislative precedent since the constitution went into effect, has been against the doctrine I have been combating. I do not now recollect an instance, during the period of my connection with either branch of the legislature, where, on a bill creating or altering the charter of a city or village, the question on its final passage was not put as upon a two-third bill. Some cases may have arisen where it was questioned whether the bill did in fact purport to alter the charter of a body politic or corpo- rate ; and if the conclusion arrived at was that it did not, it was probably treated as a majority bill. There have been general statutes passed in this manner, affecting all persons, as well natural as artificial ; e. g. tax laws, and laws regulating the internal police of the state. But no case has occurred under the new constitution where a bill has been passed as a majority bill, on the concession being made that it proposed either to create, continue, alter or renew any particular public corporation. If, as has been contended in the present case, the act of May 14th, 1840, does not take away the right of aldermen of the city of New- York to sit as judges of the court of general ses- sions, then there has been no usurpation by the plaintiff in error. But if otherwise, then the act is void, because it did not receive the assent of two-thirds of the members elected to each branch of the legislature. In either view, the plaintiff in error is entitled to judgment, and the judgment of the supreme court should be reversed. 400 CASES IN THE COURT OF ERRORS. Purdy v. The People. FRANKLIN, Senator. The twenty-sixth section of the char- ter of the city of New-York, granted in 1730, confers upon aldermen the right of acting as members of the court of gener- al sessions of the peace, by the following grant : " And further, we, of our special grace, certain knowledge, and meer motion, have given, granted, ratified and confirmed, and by these pres- ents do, for us, our heirs, and successors, give, grant, ratify, and confirm unto the said mayor, aldermen, and commonalty of the city of New-York, and to their successors forever, &c. that they, the said mayor, deputy-mayor, recorder, and alder- men of the said city, for the time being, or any four or more of them, (whereof we will the mayor or deputy-mayor, or the recorder of the said city, for the time being, to be one,) shall and may forever hereafter hold and keep four courts of general sessions of the peace in and for the said city and county cf New- York." In pursuance of this authority, and by virtue of several subsequent acts of the legislature, the aldermen have exercised the power conferred, and have sat as judges of the court of general sessions of the peace, until the passage of the act of the 14th of May, 1840. The first section of that act declares, that the court of general sessions shall hereafter be held, and all the powers thereof exercised, by the re- corder, and two judges to be appointed by thje governor and senate. This infringes upon the powers of the aldermen granted to them under the charter, and by implication repeals that section of it to which I have referred. The charter and the act being inconsistent with each other, they cannot stand together ; and a fair construction of the language of the act clearly indicates the design of the legislature to alter the entire organization of the court, and to exclude the aldermen from acting as members thereof. For, had it been the intention to continue the aldermen as members of the court, the above provision of the charter would have been embraced in the act ; but a failure to do so, necessarily, and by all the rules of con- struction, excludes them from acting in that capacity. That the city of New- York is a public corporation, and, as such, subject to the control of the legislature; cannot be ques- ALBANY, DECEMBER, 1842. 401 Pordy v. The People. tioned. The antiquity of its charter, it having been granted by royal authority prior to the revolution, confers upon the corporation no greater privileges or rights than if its charter were of more modern enactment ; and it must therefore be gov- erned by the same rules of construction, controlled by the same legislative proceedings, and guarded and protected by the constitution with as much care, as those which have been granted since the adoption of that constitution. The ninth section of the seventh article of the constitution declares, that " The assent of two-thirds of the members elect- ed to each branch of the legislature shall be requisite to every bill, creating, continuing, altering or renewing, anybody politic or corporate." But it is said that the act of May 14th, 1840, does not come within the provisions of the constitution requir- ing a two third vote, and that a majority was sufficient to pass the same. It is no doubt true, as was urged upon the are^i- ment of this case, and as was observed by several senators in the case of Warner v. Beers, (23 Wend. R. 126,) and by the chief justice of the supreme court in The People v. Morris, (13 id. 325,) and The People ex. rel. Lynch v. The Mayor #c., (25 id. 680,) that the main and prominent evil intended to be guard- ed against by the convention which framed the constitution, was the great accumulation of private corporations, and parti- cularly of banks and insurance companies. But the plain and comprehensive language of the section does not, in my judg- ment, justify us in confining it to so narrow a limit ; for if there is any power in language to convey ideas, the section under consideration is so clearly and forcibly expressed, that lie who runs may not only read but understand. If it were the intention of the frainers of the constitution to exclude pub- lic corporations from the operation of this section, and to leave them to be controlled at the pleasure of a bare majority of a quorum of each house, would they have declared that every bill creating, continuiug, altering or renewing any body poli- tic or corporate, should require the assent of two-thirds of the members elected to each brr.nch of the legislature 1 VOL. IV. 51 402 CASES IN THE COURT OF ERRORS. Purdy v. The People. The debates in the convention which framed the constitution show, moreover, that this subject was distinctly brought before that body in the course of the discussion had upon the section in question, and formally passed upon. On referring to Carter and Stands Debates in Convention, (p. 446,) it will be seen, that when the report of the committee containing this clause came up for consideration, not only was it suggested that the provision would embrace public as well as private corporations, but a proposition was actually submitted to amend, by adding after theword "any, "the words " bank or moneyed institution ;" thus confining its operation to this particular class of corpora- tions. It was urged then, as it has been in this case, that, as the section stood, it would require two-thirds of the members of each branch of the legislature to incorporate a village, bridge, or turnpike. But it was answered that two-thirds would never be wanting to incorporate a village or a turnpike, and the pro- posed amendment was thereupon withdrawn j thereby shewing clearly to my mind that the convention, while they were anxious to throw restrictions around the increase, and at that time alarm- ing increase, of moneyed corporations, were at the same time desirous to guard and protect all incorporated institutions from any alteration of their chartered rights, except in cases where those alterations were of so clear and palpable a character as to satisfy the minds of two-thirds of the members elected to the legislature that they should be made. But in construing this clause of the constitution, we must be governed by those settled and fixed rules which have been es- tablished by our courts in reference to the construction of stat- utes, &c. What then are those rules ? Dwarris, in treating upon this subject, says, that in the exposition of a statute, the leading clue to the construction to be made, is the intention of the legislature, and that may be discovered from different signs. As a primary rule, it is to be collected from the words ; and when the words are not explicit, it is to be gathered from the occasion and necessity of the law, these being the causes which ALBANY, DECEMBER, 1842. 4Q3 Pordy . The People. moved the legislature to enact it. (Dwarr. on Stat. 693.) The rule adopted by Lord Coke -was, first to consider the true import of the words themselves, and then to refer to the old books and authors that wrote soon after the passing of the law. " Great regard," he says, " ought, in construing a stat- ute, to be paid to the construction which the sages of the law who lived about the time, or soon after it was made, put upon it, because they were best able to judge of the intention of the makers at the time when the same was made." (2 Inst. 11, 136. 181.) Judge Story says, " the first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intention of the parties ;" (1 Story's Com. on Const. 383 ;) and Blackstone says, the intention of the law is to be gathered from the words, the context, the subject matter, the consequences and the effects, or the reason and spirit of the law. (1 El. Com. 59, 60.) Applying, then, these general principles to the case now un- der review, we have in the first place the words of the consti- tution, which are as general as the language can furnish ; for the words every and any cannot be made to signify some, to the exclusion of others, but must be taken in their common acceptation, and according to the meaning which is usually attached to them. Thus interpreted, they admit of but one application, and must apply and have reference to every species of corporations, whether public or private. Again, if the words were of doubtful construction, the inten- tion of the convention is evident from the debates upon this particular clause of the constitution, to which I have referred, and that must be regarded as one of the signs by which we must be governed in its construction. The sense of the terms and the intention of the parties are to my mind clearly evident from the views which I have already taken, and fully justify the conclusion that the act of 1840 was of that character which required the assent of two-thirds of the members elected to 404 CASES IN THE COURT OF ERRORS. Purdy v. The People. both houses of the legislature. That such has been the con- struction put upon it by the framers of our laws, is evident from the fact, that from the time of the adoption of the constitution ia 1822, down to the present, most of the acts similar in char- acter to the one now under consideration have been passed in accordance with this view of the constitution ; and the excep- tions only serve to establish the generality of the rule. One of the points submitted by the plaintiff in error was, that the act of May 14, 1840, was not certified in the printed volume published by the state printer, nor in the original, to have been passed by the assent of two-thirds of each house ; and that, in point of fact, as appears by the journal, it was passed in each house by a less vote. In order to determine this fact, it becomes necessary to resort to other evidence than that which the printed volume affords j for, in consequence of the form in which the statutes are printed, it does not appear whether it was passed as a two-thirds or majority bill. I have been unable to find any cases in our own courts having a bearing upon this point, or indicating the manner in which this proof ought to be made, except the incidental opinions expressed by several senators in the case of Warner v. Beers. But Ch. J. Pratt held, in Rex v. Jeffries, (1 Strange, 446,) that it was competent to examine the parliament rolls to correct an error in the printed copy of the statutes ; and Lord Mansfield held a similar doctrine in the case of Rex v. Robotham, (3 Burrows, 1472.) If, then, the original acts of parliament could be re- sorted to, and read at the bar, for the purpose of correcting clerical or other errors in the printed copy, i see no rea- son why a similar practice ought not to be sanctioned for any other purpose. Judges are bound to take notice of a general law, and it is their province to determine wheth- er it be a statute or not ; for, as against a general stat- ute, nul tiel record cannot be pleaded, but it must be tried by the judges who arc to inform themselves in the best way they can ; and if there be any difficulty or uncertainty, they are to make use of ancient copies, transcripts, books, plead- ALBANY, DECEMBER, 1842. 405 Puidy t>. The People. ings, or any ether memorial, for that purpose. (Dwarr. on Stat. 630, 631.) It is declared by the revised statutes, that, "No bill shall be deemed to have been passed by the assent of two-thirds of the members elected to each house, unless so certified by the presiding officer of each house ;" (1 R. S. 156, 3, of tit. 4 ;) and for the purpose of ascertaining whether the act in question was so passed, it be- comes necessary to resort to the original bill on file in the office of the secretary of state, upon an inspection of which it will appear to be certified in the usual form of majority bills. So also by the senate journal of 1840, (pp. 123, 124,) and the as- sembly journal of the same year, (p. 1466,) it appears that only half of the senators, and less than half of the members elected to the assembly, voted for the bill upon its final passage. This certainly is as good evidence as the nature of the case will admit of. and in my judgment is sufficient to settle the question that this bill was not passed by " the assent of two-thirds of the members elected to each branch of the legislature." From the best examination, therefore, which I have been able to give to this case, I have arrived at the conclusion, that the act of May 14, 1840, on its true construction, does by im- plication abrogate those parts of the city charter and legislative acts which empower the aldermen to sit as judges of the court of general sessions j that it comes within the spirit anil true in- tent and meaning of the ninth section of the seventh article of the constitution, and consequently required " the assent of two- thirds of the members elected to each branch of the legisla- ture j" and that, not having received such constitutional vote, it is void. 1 am cf opinion, therefore, that the judgment of the supreme court should be reversed. SCOTT, Senator. The principle on which the decision of the supreme court rests, does not distinctly appear. Mr. Justice Cowen says : " Were I clear that the power of Alderman Pur- dy to sit as a judge in the court of general sessions, might be considered strictly a corporate right, within Art. 7, 9 of the 406 CASES IN THE COURT OF ERRORS. Purdy v. The People. constitution, whether such right were public or private, I might require still further time, or perhaps assent at once to the con- clusion that the act of 1840 did not affect his power, for wan't of a two-third vote. Such a Tojte is required for altering any body politic or corporate." He agrees with Mr. Justice Bron- son, that a two-third vote is required for altering any body politic or corporate j and differs from the opinion of Chief Jus- tice Nelson, as expressed in the case of The People v. Morris , (13 Wend. 325,) who holds that the concluding clause of the ninth section of the seventh article of the constitution applies to private corporations only. Mr. Justice Bronson says, the supreme court has never decided that the constitution did not ex- tend to public corporations ; that this was merely the opinion of the chief justice, for which the court was not responsible. Mr. Justice Cowen differs entirely from both the other judges, and puts his opinion on the ground that the power of holding the court of general sessions is not a corporate right, and there- fore not within that clause of the constitution which requires a two-third vote. A majority of the court, however, agree to oust Alderman Purdy from the bench : one of the judges, upon the interpretation of corporate rights^ and the other, upon the interpretation of the constitution neither having a majority of the court to sustain him. I propose to consider both grounds. Bodies politic, bodies corporate (corpora corporate,) or cor- porations, are artificial persons, of which there is a great varie- ty subsisting for the advancement of religion, of learning and of commerce ; created to preserve entire and forever those rights and immunities, which, if granted only to those individ- uals composing the body corporate, would, upon their death, be utterly lost and extinct. (1 Black. Com. 467, Chit, ed.) Perpetual succession is the main object to be attained by their creation ; for, says Blackstone, as all personal rights die with the person, and as the necessary forms of investing a series of individuals, one after another, with the same identical rights, would be very inconvenient if not impracticable, it has been ALBANY, JANUARY, 1843. 407 Purdy . The People. found necessary to constitute artificial persons. (Id.) Corpo*- rate powers are corporate rights, depending upon the grant, and are as various as individual rights. Corporate rights, whether the corporation be sole or aggregate, lay or ecclesias- tical, public or private, are nothing more than individual rights incorporated. Certain lay corporations are created for the good government of towns or particular districts ; (Id. 471 ;) and it has been usual to grant, in charters to these corporations, divers franchises, as waifs and estrays, deodands, courts and cognizance of pleas, markets, &c. (Jac. Law Diet. tit. Corpo- ration.) The notion of corporate rights cannot be confined to the nar- row ground of the necessary incidents growing out of a general act of incorporation ; such as the right *e have perpetual suc- cession, to sue and be sue*!, to grant or take by grant in the corporate name, to have a common seal, to make by-laws, &c. If these are the " strict corporate rights" intended to be em- braced by the constitution, then I cannot see why every claus,e of a charter, not within this definition, for whatever purpose inserted, may not be altered or amended by a majority vote. Upon this construction of the constitution, the capital of banks may be reduced or extended, the dimensions of rail-roads and canals, their location, or the time fixed for their completion, may be altered, and all the usual provisions embraced in char- ters, specifying the very end and design of the corporation, may be amended by a majority vote ; thus removing the check provided by the constitution against the creation, alteration or continuance of any corporation except by a two-third vote. The act to amend the charter of the city of New- York, pass- ed in 1830, declares, that " such parts of the charter of the city &c., and of the several acts of the legislature amending the same, as are not inconsistent with the provisions of this law, shall not be construed as repealed, modified, or in any manner affected thereby ; but shall continue and remain in full force. (Sess. Laws of '30, p. 129, 26.) The old charter would have remained in force though no such provision had been made ; 408 CASES IN THE COURT OF ERRORS. Purdy 73. The People. for it is well settled that a new charter dees not merge or ex- tinguish any of the ancient privileges of the old charter. (Hadr dock's case, T. Raym. Rep. 435, 439.) The Montgomerie charter was confirmed by the colonial legislature in 1732, (Kent's Charter, p. 97,) and also by the constitution of 1777, ( 36,) and was further confirmed by the new constitution of 1821, which declares that nothing therein contained shall annul any charters to bodies politic and corpo- rate, made by the king of Great Britain or his predecessors, or by persons acting under their authority, before the 14th of Oc- tober, 1775. (Const, of JV. F., Art. 7, 14.) By the Mont- gomerie charter, the city of New- York is recognized as an ancient city, and the citizens as a body politic and corporate, by the name of the mayor, aldermen and commonalty of the city of New- York ; and, after confirming the ancient powers, it grants to the corporation itself, by the name of the mayor, aldermen and commonalty of the city of New- York, and to their successors forever not to the aldermen or any one of them that " the said mayor, deputy-mayor, recorder, and aldermen of the said city, for the time being, or any four or more of them, (whereof we will the mayor, or deputy-mayor, or recorder of the said city, for the time being, to be one,) shall and may forever hereafter hold and keep four courts of gene- ral sessions of the peace, in and for the said city and county of New-York, to begin at certain times in the year, to wit," &c. (See Kent's Charter, p. 68, 69, 26.) The power thus given is clearly a corporate right ; and the words used in granting it are essentially the same as in that clause of the charter conferring legislative power, which provides that the mayor or recorder, with four or more aldermen, and four or more assistants of the said city, for the time being, shall be for- ever called the common council of the city of New- York, &c. and shall have power to make and form all such laws, &c. (Id. p. 54, 14.) In both cases the grant is to the corporation ; some of the corporators being named to exercise the powers. I am at a loss to perceive why the power given to the corporation ALBANY, DECEMBER, 1842. 409 Purdy t>. The People. to hold a court, through the mayor, deputy- mayor, recorder and aldermen, should be construed as not being a corporate right ; while the power granted to the corporation to legislate, through the mayor, recorder, aldermen and assistants, is deci- ded to be a corporate right. The power to hold a court, given to a corporation, is as much a franchise, as the right to hold a legislative session. The act of May 14th, 1840, prohibits the aldermen of the city of New- York from sitting as judges of the court of general sessions ; and, if valid, alters the charter. Yet we are told by Mr. Justice Co wen, that no attempt is made by statute to abol- ish the office of alderman, or to diminish his powers as such. But, I ask, are not his office and powers prescribed by the charter ? Can he be deprived of his seat on the bench, any more than of his seat in the common council, without diminish- ing his powers or abolishing his office ? The powers conferred on the aldermen are grants of power to the corporation ; and, in this point of view, it is immaterial what belongs to the office of alderman as such. It is enough that he is one of the corpo- rate officers. An abridgment of his power will abridge that of the corporation, because the latter cannot exercise its corporate functions but by and through its officers. The term alderman does not import legislative more than judicial power. We learn from ancient authorities that comes, ocldorman and carl are equivalent words in the Latin, Saxon, and Danish-Saxon languages. In England this officer sat with the bishop at the trial of causes, and, while the latter expound- ed the ecclesiastical, it was the duty of the former to declare the common law. Aldermen sat as justices of assize, and 'ex- ercised such powers of government as were conferred by the charters of the cities or towns where they resided, and, in that character, took cognizance of civil as well as criminal matters ; at one time administering the laws which emanated from the British parliament, and at another acting under the code of the corporation Jaws. (See 1 Hume's Hist. Eng. p. 69 j Jacobs 1 JMW Diet. tit. Alderman.') VOL. IV. 52 410 CASES IN THE COURT OF ERRORS. Purdy v. The People. The general duties, says Blackstone, of all bodies politic, considered in their corporate capacity, may, like those of natu- ral persons, be reduced to this single one ', that of acting up to the end or design for which they were created. (Black. Com. 479, Chit, ed,~) In the present instance, the " end or design" is specified in the preamble confirming the charter of 1686, which declares the city of New-York to be an ancient city, and that the citizens thereof have anciently been a body politic and corporate, and should hold, possess and enjoy all and singular the rights, liberties, franchises, privileges and advantages, juris- diction, courts, powers, offices and authorities, in the before recited grants, which they have held or claimed by prescription or otherwise, &c. ; and that they shall be and remain a free city. (See Kent's Charter , p. 3 et seq.) Thus it appears that one of the special and expressed designs of creating the corpo- ration in question was, to confer the power of holding a court of general sessions of the peace. Robertson, in his view of the progress of society in Eu- rope, says, that the forming of cities into communities, cor- porations or bodies politic, and granting them the privi- lege of municipal jurisdiction, contributed more, perhaps, than any other cause, to introduce regular government, police, and arts, and to diffuse them over Europe. The feudal government had degenerated into a system of oppression. The usurpations of the nobles were become unbounded and intolerable. Louis le Gros, in order to create some power that might counterbalance these potent vassals who control- led or gave law to the crown, first adopted the plan of con- ferring new privileges on the towns situated within his own domain. These privileges were called charters of community, by which he enfranchised the inhabitants, abolished all marks of servitude, and formed them into corporations or bodies politic, to be governed by a council and magistrates of their own nomination. These magistrates had the right of adminis- tering justice within their own precincts, of levying taxes &c. As soon as the towns were enfranchised, and formed into bodies corporate, they became legal and independent members of the ALBANY, DECEMBER, 1842. 41 j Purdy . The People. constitution, and acquired all the rights essential to freemen. (See 1 Rob. Charles V. p. 24, 26, 29, JV. Y. cd. of 1804.) We here find the reason why our ancestors, imbued with the true spirit of liberty, enumerated the "taking away [of] our char- ters" in their list of grievances against the British crown ; why, in framing the old constitution, they were so solicitous to preserve our chartered privileges ; and why the framers of the new constitution, in the same spirit, advancing a step further, introduced > the clause requiring a vote of two-thirds of the le- gislature to create or alter any body politic or corporate. It will be seen that the constitution makes no distinction, in terms, between public and private corporations. But it is said, the object of the clause requiring a two-third vote was to pre- vent the multiplicity of banks. If this be so, why were they not specially enumerated, or an exception made exempting public corporations from the general provision ? The evils to be apprehended from the alteration of a public corporation are far greater than any which would be likely to flow from altering a mere private corporation ; for the one would affect only a few individuals, the other a whole community. Hence, the inhabitants of cities and towns have been careful to retain in all their charters the recitals of their ancient liberties, fran- chises, and free customs ; because they know and understand the operation of these upon their interests and happiness. Hence, also, it has been the policy, in territorial cessions and in conquests, to retain the ancient usages of the people. To my mind there is much more reason for applying the two-third clause of the constitution to public, rather than to private corporations, in order to shield the former against sudden and arbitrary encroachments upon their ancient customs. Noth- ing appears to me more inconsistent than that the framers of the constitution intended to allow the chartered rights of a great community, consisting of more than three hundred thou- sand souls, to be altered by a bare majority vote ; while at the same time they required the assent of two-thirds of the mem- bers elected to each branch of the legislature to amend or alter 412 CASES IN THE COURT OF ERRORS. Purdy v. The People. the incorporation of a petty turnpike or toll-bridge. When we reflect that the language of the constitution is free from am- biguity, the construction sought to be put upon it appears to be still more violent. Judge Story says, in speaking of the constitution of the United States, (and his language is equally applicable to our state constitution,) " The people adopted the constitution ac- cording to the words of the text in their reasonable interpreta- tion, and not according to the private interpretation .of any par- ticular men." (1 Story's Com. on Const. 392, note.) He also remarks : " Where the words are plain and clear, and the sense distinct and perfect arising on them, there is generally no neces- sity to have recourse to other means of interpretation. It is only where there is some ambiguity or doubt arising from other sources, that interpretation has its proper office." (Id. p. 384.) " Where the words of a man express his meaning, plainly, distinctly and perfectly, we have no occasion to have recourse to other means of interpretation. But sometimes a man's words are obscure ; sometimes they are ambiguous ; and sometimes they express his meaning so imperfectly, as either to fall short of his intention and not express the whole of it, or else to exceed his intention and express more than he de- signed. In any of these cases we must have recourse to some other means of interpretation ; that is, we must make use of some other signs or marks, besides the words of the speaker or the writer, in order to collect his meaning." (See 2 Ruth. Inst.) ch. 7, \ 2.) " If the words and the construction of a writing are clear and precise, we scarce call it interpretation to collect the intention of the writer from thence. But the definition of interpretation will best inform us whether it is to be called by this name, or not." (Id. 4.) By adopting these principles, so clearly expressed by two eminent jurists, and applying them to the two-third clause of the constitution, not a doubt remains as to its meaning. The clause is as follows : " The assent of two-thirds of the mem- bers elected to each branch of the legislature shall be requisite ALBANY, DECEMBER, 1842. 413 Purdy v. The People. to every bill appropriating the public monies or property for local or private purposes, or creating, continuing, altering, or renewing, any body politic or corporate." (Const, of JV*. Y. y Art. 7, 9.) These words are so plain, and their meaning so clear, that, had there been no attempt to explain them a\va), I should consider it a work of supererogation to enlarge on this point. If the words " altering or renewing any body pol- itic or corporate" may be construed to mean one kind of cor- porations only, viz. private corporations, why may we not make another distinction, and say that the words do not apply to sole corporations 1 or another, that they do not relate to lay, but only to spiritual corporations? and then, refining still more in our love of spiritualization, explain " any body" to mean no body ? The construction contended for is the reverse of what the constitution plainly imports. " Every bill continuing, altering &c. any body politic" &c. Johnson says the word " every" means each one of all, and gives this example : " All the con- gregation are holy, every one of them. Numbers.". The same lexicographer defines " any" to mean every, and says, " it is, in all its senses, applied indifferently to persons or things." Now, the construction contended for by the defen- dants in error would make the words " every bill altering or re- newing any body politic or corporate," mean seme bills and some corporations, instead of all bills and all corporations. But, to my mind, the words are so plain that, in the language of Story and Rutherforlh, there is no necessity of resorting " to other means of interpretation." Where the words of a law are dubious, they may be ex- plained by resorting to the context j (Co. Lift. 381 ; Stcwel v. Zouch, Plowd. 353, 3C5 ; Crespigny v. Witteuccm, 4 T. R. 790, 793 j) but the words under consideration are not ambigu- ous, and therefore, under no reasonable pretence, can this rule be applied to fritter away the natural and obvious sense of the constitution. However, if we apply the rule to this case, and seek to ascertain the meaning of the words by examining the 414 CASES IN THE COURT OF ERROR'S. Purdy v. The People. context, it will be found that in every section of the constitu- tion where the words " every" and " any" are used, it is in the sense defined by Johnson. The word " every" occurs fif- teen, and " any" twenty-five times in the constitution, and in no instance is either of them used in a limited sense, as mean- ing some ; but, on the contrary, they are invariably employed in the sense of a//, or each one of all. I will cite only a few examples. " Every bill which shall have passed the senate and assembly, shall, before it become a law, be presented to the governor," &c. "If any bill shall not be returned by the governor within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law," &c. (Const, of JV. Y. Art. 1, 12.) " He [the governor] shall communicate by message to the legislature at every session," &c. (Id. Art. 3, 4.) " Where the duration of any office is not prescribed by this constitution," &c< (Id. Art. 4, 16.) " Any amendment, or amendments to this constitution, may be proposed in the senate or assembly," &c. (Id. Art. 8.) " Any bill may originate in either house of the legislature," &c. (Id. Art. 1, 8.) "So that every district shall have one senator of each class." (Id. 5.) " No other oath, declaration or test, shall be required as a qualification for any office of public trust." (Id. Art. 6, 1.) " In every trial on impeachment or indict- ment, the party accused shalh be allowed counsel as in civil ac- tions." " No person shall be subject, for the same offence, to be twice put in jeopardy of life or limb : nor shall he be com- pelled, in any criminal case, to be a witness against himself," &c. (Id. Art. 7, 7.) " Every citizen may freely speak, write," &c. (Id. 8.) It will thus be perceived, if the con- struction contended for in reference to the clause in question be adopted as a general rule of interpretation, it will at once abrogate the constitution. It appears to me not within the power of man to select from the English language words more exactly fitted to convey the idea that all corporations, both public and private, were in- tended to be embraced by the constitution, than those actually ALBANY, DECEMBER, 1842. 415 Purdy . The People. employed j an intention expressed and declared in the conven- tion which framed the constitution, when the clause in question was under discussion. (Carter and Stone's Debates, p. 446.) I have searched the journals of both houses since the adoption of the constitution, and have been unable to find a single case, beside the present, where a public corporation has been either created, continued, altered or renewed, except by a two-third vote. It was said by counsel, that the office of judge comes from the state, that the people make the aldermen, and that it was not the intention of the constitution to place judicial officers in the city of New- York upon a different footing from those in other parts of the state. The answer is : The constitution in- tends what it expresses. Mayors and aldermen, elected by the people, have sat and now sit as judges in criminal courts in most of the cities of this state. The revised statutes enact, that the first judge, mayor, recorder and aldermen of the city and county of New- York, may hold a court of general sessions j and the same provision is extended to other cities of the state. (2 R. S. 216, 27.) This provision, so far as it is applicable to the city of New- York, is merely declaratory of its charter ; and if the act of 1840 repealed this part of the revised statutes, it did not repeal the charter. But it repealed neither, for it is admitted that it was passed by a mere majority vote. The seventh section of the fourth article of the constitution, declaring that all judicial officers, except justices of the peace, shall be appointed by the governor and senate, has been sup- posed to deprive aldermen of the power to sit as judges in the court of general sessions. This clause, when taken in connec- tion with the fifteenth section of the same article, declaring that " all officers heretofore elected by the people, shall continue to be elected," must be considered as excepting from the operation of the seventh section all elective judicial officers ; thus preserv- ing to the people of the city of New- York the right heretofore exercised under the charter and laws of electing aldermen, who have always exercised judicial powers. By giving to the sev- 416 CASES IN THE COURT OF ERRORS. Purdy . The People. enth section the broad construction contended for, we should abrogate the judicial powers of every mayor and alderman in the state. Nay more, we should in effect declare, that for twenty years past they have usurped the power of judges, and that a majority perhaps of the tenants of our state prisons ought to be discharged because committed by courts having no constitu- tional power to try them. The revised statutes, which were enacted soon after the adoption of the constitution, and a con- stant series of legislative acts ever since, conclusively show the exposition which has uniformly been given to the sections un- der consideration. When the people gave us a written constitution, they did not intend we should look out of the instrument for a construc- tion of their will. One of the very objects they had in view was to avoid obscurity and ambiguity. I concur entirely in opinion with Mr. Justice Bronson. He has discussed this whole question, involving a great constitutional principle, with a clearness and force of argument which will hereafter be re- garded not only as a model of judicial reasoning, but a noble effort in favor of constitutional liberty. The judgment of the court below ought to be reversed. RUGER, Senator. This case comes here from the supreme court on a writ of error, upon an information in that court, in the nature of a quo warranto, to enquire by what authority or right, if any, Elijah F. Purdy held and exercised the office of judge of the court of general sessions in the city and county of New-York. More than a hundred years ago, Governor Montgomerie granted a charter to the city of New-York, authorizing the al- dermen of that city, together with certain other officers, to hold courts of general sessions of the peace j and by virtue of the charter, and several subsequent acts passed by the legislature, the aldermen have sat as judges in said court ever since. It is admitted that Purdy was an alderman of the city at the time ALBANY, DECEMBER, 1842. 417 Purdy t>. The People. this proceeding was instituted against him ; but it is contended that his right to sit as a member of said court was taken away by an act of the legislature passed May 14th, 1840, entitled an act " for the better organization of the criminal courts in the city and county of New-York." The first section of the act provides that, " The court of general sessions in the city and county of New-York, shall hereafter be held, and all the powers thereof exercised, by the recorder of the city of New-York and two judges to be ap- pointed by the governor and senate, who shall be called and known as the associate judges of the court of general sessions of the city and county of New- York." The fourteenth section repeals some of the provisions of the revised statutes, one sec- tion of the act of 1833, " and all other acts and parts of acts inconsistent with the provisions of this act" i. e. the act of 1840. The repealing clause, being thus limited to legislative acts and parts of actSj does not restrict the powers granted by the charter of 1730. The first section, however, declaring that the court " shall thereafter be held and all the powers thereof exercised" by the recorder and two judges to be appointed by the governor and senate, would seein, at least indirectly, tc work a repeal of so much of the charter of 1730 as authorized aldermen to sit in the court of general sessions. That charter is under the control of the legislature, subject to alteration, amendment or repeal, the same as legislative enactments in re- lation to chartered rights and privileges, and by the same vote. Hence, if the act in question has the binding force of a law, it is very certain that the aldermen of the city of New-York are deprived of their right to sit as judges in the court of general sessions. But has that act the binding force of a law ? It is conceded that it did not receive " the assent of two-thirds of the members elected to each branch of the legislature." The question then is, whether the act be such as required a two-thirds vote, under the constitution of this state. The ninth section of the seventh VOL. IV. 53 418 CASES IN THE COURT OF ERRORS. Purdy v. The People. article of the constitution provides, that " The assent of two- thirds of the members elected to each branch of the legislature shall be requisite to every bill &c., creating, continuing, altering or renewing any body politic or corporate." It is contended that this provision does not extend to public corporations ; and that therefore the act of 1840 required only a majority vote. This seems to be a new construction j for the opinion has been, I may say, almost universal for the last twenty years, that the section extended as well to public as to private corporations. At the time the constitution was adopted, we had then, as we have now, both public and private corporations ; and the language of the clause in question would seem to extend as distinctly to the one as to the other. The course of legislation, moreover, for about twenty years previous to 1840, has given a construction to this section of the constitution in strict conformity to its plain meaning ; recognizing its applicability alike to both classes of corporations. Had the convention which framed the constitution intended to except public corporations, the exception would doubtless have been made in direct terms. But instead of this, the language used precludes the idea that any such thing was intended. There are no qualifying words, either in the section itself, or in other parts of the instrument, restricting the provis- ion to private corporations ; but the phraseology is comprehen- sive and unambiguous, embracing every bill altering any body politic or corporate. If this language be not broad enough or strong enough to restrain the legislature, it is hardly possible to conceive what language would be so. That the aldermen should be allowed to sit as judges in the court of general sessions of the peace, is a right granted to the corporation^ as well as to the aldermen themselves ; and how that right can be taken away without altering the body politic r.nd corporate, within the plain meaning and language of the constitution, I am entirely unable to conceive. To maintain the constitution is our first duty ; and if the le- gislature has, for any cause, encroached upon that sacred instru- ment, or if an erroneous construction has been given to it, we ALBANY, DECEMBER, 1842. 4JQ Purdy . The People. are imperatively called upon to declare its meaning, and to as- sert its supremacy. Nothing can be more dangerous to our free institutions, or to the rights of the people, than to encour- age doubtful interpretations of the constitution, contrary to its more plain and natural import, as understood by the great body of its readers. The view taken of this question by Mr. Jus- tice Bronson is worthy that able and enlightened jurist ; and his opinion should be attentively read by every individual in our state who considers the constitution worth preserving. When this case was before the supreme court, (2 HiWs Rep. 43,) Mr. Justice Bronson came to the following conclusion, in which I entirely agree j viz. : " If the act of 1840, does not ex- clude the aldermen from the courts of general sessions, there has then been no usurpation ;" but " if the act of 1840 does exclude the aldermen, it is because it alters the charter of the city under which they hold their seats in the courts of general sessions, and then as the act did not receive the requisite num- ber of votes, it is void." In either view, Purdy is entitled to to his seat as a judge of said court ; and the judgment of the supreme court should therefore be reversed. ROOT, senator, delivered a written opinion in favor of affirm- ing the judgment of the supreme court. On the question being put, " Shall this judgment be revers- ed ?" the members of the court voted as follows For reversal : Senators BARTLIT, CLARK, CORNING, DENNIS- TON, ELY, FRANKLIN, JOHNSON, PAIGE, RUGER, SCOTT, STRONG, VARIAN, and VARNEY 13. For affirmance : The PRESIDENT, the CHANCELLOR, and Sena- tors DIXON, HOPKINS, HUNT, NICHOLAS, PECK, PLATT, RHOADES, ROOT, and WORKS 11. 420 CASES IN THE COURT OF ERRORS. Prosser v, Luqueer. PROSSER, impleacled &c. v. LUQUEER and others. Where a note was drawn by E. ana A., payable to W. or bearer, and, previous to its delivery to the latter, P. guarantied the payment of it by an endorsement thereon, thus " For value received I guaranty the payment of the within note, and waive notice of non-payment :" Held, in an action brought by a subsequent holder against P. and the makers jointly, that the plaintiff was entitled to recov- er ; he having declared upon the common money counts and served a copy of the note and guaranty with his declaration. . Such a guaranty constitutes the person making it an endorser within the statute (Sess. L. of '32, p. 489,) regulating suits en bills of exchange and promissory notes. Per WALWORTH, chancellor. And semble, independently of the statute, the guarantor may be treated as a joint and several maker of the note. Parol evidence is inadmissible to prove that a party to a bill or note e. g. an en- dorser or guarantor intended to contract a different obligation from that import- ed by his written engagement. Per WALWORTH, chancellor. ON error from the supreme court, where Luqueer and others, now defendants in error, sued Prosser and others in assumpsit. and recovered judgment. The facts are sufficiently stated in the following opinion of the chancellor. See also 1 Hill, 256 et seq., where the case is reported in the court below. M. T. Reynolds, for Prosser, the plaintiff in error. Willis Hall, for the defendants in error. WALWORTH, Chancellor. Edson & Arnold, who were co- partners, made a promissory note payable to Parsons or bearer. Before the delivery of the note to Parsons, Prosser, the plaintiff in error, made an endorsement on it bearing even date there- with ; by which endorsement, for value received, he guar- antied the payment of the note generally, and waived notice of non-payment. When the note became due, payment was demanded of the makers, but they did not pay the same. F. T. Luqueer and others, as the bearers and owners of the note, ALBANY, DECEMBER, 1S12. 421 Proaeer t>. Luqaeer. thereupon brought a joint action against Arnold & Eclson and Prosser, and declared on the common money counts, and serv- ed a copy of the note and endorsement with their declaration ; as directed by the statute authorizing a joint suit to be brought against the drawers, makers, endorsers and acceptors of a bill of exchange or a promissory note. (2 jR. *S. 2d ed. 274, 6, 7.) And the only question is whether they were entitled to recover against Prosser, the plaintiff in error, in this form of action. If the undertaking of Prosser cannot be considered as a promissory note in itself, so as to render him liable as maker j or as an endorsement of the note with a waiver of notice, so as to entitle the bearers of the note to recover against him as an endorser, this joint suit upon the money counts cannot be sus- tained. But if he is liable to the bearers of the note either as maker or endorser, and could have been declared against as such in a separate suit against him, I think the statute is broad enough to entitle them to recover in this form of action. For the legislature unquestionably intended to authorize a joint suit to be brought against all the parties who were liable as drawers, endorsers, makers and acceptors of the same paper. It is not necessary, therefore, to enquire whether Arnold & Eclson and Prosser could, at the common law, have been all sued, in one action, as joint makers of the note in question. In this case, if the legal liability of Prosser did not appear upon the instrument served with the declaration, I think the parol evidence of the agreement of the drawers to get endorsed paper for the horse and wagon for which the note was given, could not aid the plaintiffs in the court below. For where the party to a note or bill fills un the instrument by which his lia- bility is created, at the time he signs it, as in this case, it would be a violation of settled principles^? allow parol evidence to be given for the purpose of showing that he intended to con- tract for something different. And even in the case of a blank endorsement upon negotiable paper, if it can be filled up and 422 CASES IN THE COURT OF ERRORS. i Prosser v. Luqueer. made to operate as a general endorsement, I agree with Mr. 'Justice Bronson, in the case of Seabury v. Hungerford, (2 Hill's Rep. 80,) that parol evidence ought not to be received to show that a different liability was intended to be created ; and thus deprive the endorser of his right to notice of non- payment. Where a note is payable to bearer, so that no words of trans- fer are necessary to entitle a subsequent holder to recover thereon in his own name, a blank endorsement is in fact and in law neither more nor less than a conditional guaranty of pay- ment by the drawer, provided due notice of demand and non- payment is given to the endorser. And parol evidence ought not to be received, in such a case, to show that the parties in- tended that the endorser should be made liable absolutely, with- out the performance of this condition precedent. But in this case, the notice was expressly waived by the written guaranty endorsed on the note ; and, in addition to that, the plaintiffs proved a demand of the makers when the note became due, and that notice of non-payment to the endorser or guarantor was actually given. No parol proof of the circumstances un- der which the note was given was therefore necessary to enti- tle the holders to recover against him as such endorser or guar- antor. Had the endorsement guarantied the payment of the note to Parsons, by name, without any words of negotiability, it would probably have only operated as a special endorsement, so as to make it necessary for the holder of the note to sue the same in the name of Parsons only ; and that would have enabled the guarantor to set up any legal defence which he had to the note in the hands of the person to whom such special guaranty was made. But a general guaranty, like this, upon a note payable to bearer, is in law a general endorsement of the note, with a waiver of the condition precedent of a notice of non- payment by the drawers. The plaintiff in error, therefore, was liable to the defendants in error as such endorser, and was ALBANY, DECEMBER, 1842. 423 Prooaer . Luqueer. properly sued as such in a joint suit with the makers, under the provisions of the statute on the subject of joint suits. I also think that Prosser, the guarantor, could have been sued upon this guaranty, by the bearer of the note, as upon an absolute promise to pay the amount to the bearer when it be- came due j constituting the guarantor, in effect, the maker of a promissory note, payable to bearer, for the sum and at the time specified in the note upon which this guaranty was writ- ten. (Mien v. Rightmere, 20 John. 365 ; Hough v. Gray, 19 Wend. 202; Ketchell v. Burns, 24 Id. 456.) Although this guaranty does not, in words, guaranty the payment to Parsons or bearer, as the endorsement did in the case of Ketch- ell v. BurnSj it does so in effect. For no person being named in the guaranty, it is an absolute promise that the amount of the note upon which it is endorsed shall be paid to the payee therein named, or to the bearer, at the time in such note speci- fied. And the words for value received, which are in this guaran- ty, remove all possible objection that it is a promise to pay the debt of Edson & Arnold, and that the consideration as well as the promise must be in writing ; if such an objection could have been sustained where a guaranty endorsed upon a note stated no consideration for the promise, and the form of the security was such that the guarantor could not be made liable as a mere endorser. I think there was no error in the judgment of the court be- low, and that it should, therefore, be affirmed. Ail the members of the court, seventeen being present, con- curring in this result, the judgment of the supreme court was unanimously AFFIRMED. 424 CASES IN THE COURT OF ERRORS. Nellis v. Clark. NELLIS vs. CLARK. In an action on a promisory note brought by one not entitled to be treated as a 60- nafide holder, the maker may defend on the ground that the note was given in consideration of land sold for the purpose of defrauding creditors ; and this, though he was himself a party to the fraud. B. conveyed certain lands to C. for the purpose of defrauding creditors, and took back a bond and mortgage for a part of the purchase money. The bond and mortgage were afterwards cancelled in consideration of C.'s giving his note to one W. for a house and lot which the latter had contracted to sell to B. Before the time arrived for executing this contract, B. obtained a discharge under the insolvent act, whereupon his assignee demanded the note of W. who delivered it up to him ; and, by a subsequent arrangement between B. and W., the contract between them was also given up to be cancelled. Held, in an action by one deriving title to the note under the assignee, with full knowledge of the circumstances under which it had been given, that C. was not liable. It is a general rule that courts will not aid cither party in enforcing an illegal exec- utory contract; nor, if executed, will they aid either party in setting it aside, or in recovering back what has passed under it. Various cases relating to this doctrine commented on and explained. Per WAI<. WORTH, chancellor. ON error from the supreme court. The action in that court was assumpsit by Nellis against Clark on a promissory note for $300, dated October 13th, 1828, and payable to William T. Curtis or bearer, four years from date, \vith interest. The de- fence mainly relied on was, that the consideration of the note was illegal. The cause was first tried in 1836, before DENIO, C. Judge, and a verdict rendered for the plaintiff; which was afterwards set aside and a new trial granted by the court be- low. (See a report of the case in 20 Wend. 24 to 41.) On a second trial before GRIDLEY, C. Judge, at the Oneida circuit, in April, 1840, the following facts were proved : In March, 1828, John Buttolph sold fifty-six acres of land to the defen- dant, in consideration of $1200, a part of which was paid in cash, and the balance ($700) secured by bond and mortgage. The sale was made with intent to defraud the creditors of Buttolph, and particularly to prevent the collection of a judgment which he expected would be soon rendered against ALBANY, DECEMBER, 1842. 425 Nellis v. Clark. him in an action of slander, then pending in favor of one Otis. The object of the sale was known to the defendant at the time. In May following, Otis recovered judgment, and the fifty-six acres were levied on and sold to one Bruce, by virtue of an execution issued thereon. In October of the same year, Buttolph entered into a negotiation with Curtis (the payee of the note in question) for the purchase of a house and lot in Morrisville, proposing to assign the defendant's bond and mortgage in part payment of the purchase money. After sev- eral interviews, the negotiation resulted in a contract of sale by Curtis, in which he agreed to receive the defendant's notes for an amount equal to what was due on the bond and mort- gage, and to execute a deed to Buttolph on receiving the bal- ance of the purchase money ($200) at a future day. The bond and mortgage were accordingly given up and cancelled on the defendant's giving to Curtis two notes, one for $300, (the note in question,) and the other for $400. Curtis had no knowledge of the consideration for which the bond and mortgage were given. In January, 1829, Buttolph was discharged under the insolvent act, and assigned all his property &c. to one Beecher. In November, 1830, Bruce recovered possession of the fifty- six acres, in an action of ejectment against the defendant, on the ground that the conveyance to him by Buttolph was fraud- ulent in respect to creditors. A few days after this, by an ar- rangement between Buttolph and Curtis, the contract between them was cancelled ; Buttolph insisting that the notes ought to be delivered up to the defendant, as he had lost the land for which they were given. The notes had, however, been pre- viously delivered to Beecher, on his demanding them as as- signee of Buttolph. In 1831, Beecher transferred the notes to Bruce, one of Buttolph's creditors ; and they were afterwards transferred to Nellis the plaintiff. Thre was evidence tending to shov that Bruce, as well as the' plaintiff, was cognizant of the consideration of the notes, and the circumstances under which they were given, at the time of the transfers to them re- spectively. VOL. IV. 64 426 CASES IN THE COURT OF ERRORS Nellis v. Clark. The circuit judge charged the jury that, in his opinion, the defendant was entitled to a verdict, if the plaintiff had notice before the transfer of the notes to him,, of the consideration for which they were given and of the facts and circumstances in relation to them j and that, whether he had such notice, was a question of fact for the jury. The plaintiff's counsel excepted to the charge ; and the jury rendered a verdict for the defen- dant. The plaintiff moved for a new trial, which was denied by the supreme court at the January term, 1841, and judgment rendered for the defendant j whereupon the plaintiff sued out a writ of error. H. Denio fy J. A.. Spencer, for the plaintiff in error. C. P. Kirkland fy S. Beardsley, for the defendant in error. WALWOBTH, Chancellor. Upon the question as to which the chief justice differed in opinion with his associates in this case, I think they were in the right. It is a general rule that no court will aid a party to an illegal contract which is execu- tory only, to recover thereon. And where the contract is exe- cuted, a court will not aid a particeps criminis in setting it aside. Where both parties are equally offenders against the positive laws of the country, or the general principles of public policy, or the laws of decency or morality, potior est conditio defendentis; not because the defendant is more favored where both are equally criminal, but because the plaintiff is not per- mitted to approach the altar of justice with unclean hands. The exceptions to this rule are some few cases where the law which creates the illegality in the transaction was intended to restrain the one party and to protect the other ; as in the case of extortion by public officers in receiving illegal fees, contracts by lenders of money upon which usurious interest has been paid, &c. In cases of this kind there is no parity of delictum between the parties j the one only yielding a constrained ac- quiescence in the illegal act of the principal offender. But in ALBANY, DECEMBER, 1842. 497 Nellis v. Clark. the case of a fraudulent agreement, the object of which is to injure a third person or to deprive him of his remedy for the recovery of his debt, both parties to such agreement are equal- ly guilty of an offence against the laws of morality and of so- cial order ; and there is no good reason why the general rule should not be applied to them, as well as to any other offenders against the laws or against the principles of morality or public policy. A sale or assignment for the purpose of delaying, hindering, or defrauding a creditor in the collection of his debt, was ille- gal at the common law, and is in itself immoral and against public policy. And the statutes declaring such transactions void as against creditors, are only in affirmance of the com- mon law on that subject. The word only, as used in the statute of Elizabeth and in our revised statute of 1787, on this subject, was not intended to render executory contractsk)f that character legal and valid between the parties thereto. But it was insert ed to prevent the general provisions of the statute from chang- ing the common law rule, as between the parties themselves, in relation to executed contracts. The decision of the court of king's bench in Hawes v. Leader, (Cro. Jac. 271,) which case is also reported by Brownlow and by Yelverton, proceeded upon the ground of an executed contract, in which the title of the goods had actually passed to the grantee by the deed and by a symbolical delivery of the possession. And the attention of the court does not appear to have been called to the fact that the action was founded upon the covenant in such executed contract, and not upon a distinct and independent agreement to deliver up goods, the title to which had been previously vested in the plaintiff by a valid sale. The case of Osborne v. Moss, (7 John. Rep. 161,) in the supreme court of this state, was an action against the administrator of theformer owner for taking goods out of the possession of Osborne, the legal title to which goods was vested in him by an executed contract. It was there- fore a case in which the same decision must have been made if the parties to the fraudulent transfer had contracted for the 428 CASES IN THE COURT OF ERRORS. Ncllis c. Clark. sale cf the goods upon any other corrupt and illegal considera- tion. The cases of Jackson v. Garnsey, (16 John. Rep. 189,) Drinkwater \.-Drinkwater, (4 Mass. Rep. 354,) Doe v. Rob- erts, (2 Barn. $ Aid. Rep. 367,) Steel v. Brown $ Parry, (1 Taunt. Rep. 381,) Reichart \. Castator, (5 Binn. Rep. 1Q9,) and Stewart v. Kearney, (6 Watts' Rep. 453,) referred to by the counsel for the plaintiff in error, were suits for the proper- ty which had been fraudulently sold or assigned, and where the legal title to such property had become vested in the gran- tees by virtue of executed contracts. The case of Montefiori v. Montefiori, (1 Win. Black. Rep. 363,) was decided upon a different principle ; to wit, the protection of the party intended to be defrauded by the contract upon which the suit was brought. The defendant, for the purpose of defrauding the intended wife of his brother, by holding him out to her and her friends as a mamof property, gave to such brother a note,for a large amount as due to him upon a settlement of accounts. And he afterwards attempted to set up, as a defence to this note, that there was a secret agreement between him and his brother that the note should be cancelled when the marriage had taken place. The court, therefore, very properly held that it would be a fraud upon the wife of the plaintiff to permit the defendant to repudiate the note. The case of Findley v. Cooley, (1 Blackf. Rep. 262,) decided by Judge Blackford and his associates, in our sister state of Indiana, does, however, di- rectly decide the question, that in the case of an executory contract made to defraud creditors, the defendant cannot set up the fraud as a defence to a suit brought thereon by a parti ceps criminis.(a) It is evident, however, that the distinguish- (a) Tho case of Fairbanks v. Blackington, (9 Pick. 93,) in its dicta at least, favors the doctrine of Findley v. Cooley ; while Norris v. Norris\ adm'r, (9 Dana's Rep. 317,) is directly the other way. In the latter, the learned chief jus- tico, delivering the opinion of the court, observed as follows : " When the parties to an illegal or fraudulent contract are in pari delic.to, neither a court of equity, noia court of law, will aid cither of them in enforcing the elocution of that wnich mav be executory, or in revoking or rescinding that which may bo executed. In ALBANY, DECEMBER, 1842. 429 NcUis t>. Clark. ed judge who delivered the opinion of the court in that case did not examined the question with his usual care and dis- crimination. For he lost sight of the distinction which exists between an executed and an executory contract tainted with fraud or other illegality. And he seems to take it for granted that if the defendant could not himself avoid the fraudulent conveyance which he had received, he was bound to pay the consideration of that conveyance to the fraudulent grantor, or those who were suing for her benefit. But the well reasoned opinion of Chief Justice Mellen, in the case of Smith v. Hubbs, (1 Fairf. Rep. 71,) shows the true principles upon which courts of justice proceed in suits between parties to contracts of a fraudulent or illegal character ; from which opinion it appears that the decision of the court of In- diana was a departure from those principles. He says : " There is a marked and settled distinction between executory and exe- cuted contracts of a fraudulent or illegal character. Whatev- er the parties to an action have executed for fraudulent or ille- gal purposes, the law refuses to lend its aid to enable either party to disturb. Whatever the parties have fraudulently or illegally contracted to execute, the law refuses to compel the contractor to execute or pay damages for not executing ; but in both cases leaves the parties where it finds them." And the decisions referred to by him show most clearly that it makes no difference, in the case of a suit upon an executory contract, whether the proof to establish the fraudulent or ille- gal nature of the transaction comes out from the examination such a case, the law will not be the instrument of its own subversion, and to every invocation of its assistance, replies, ' in pari delicto, pntior est condi. tio drfcndentis.' Our statute against frauds, which declares that all conveyan- ces, bonds &.c., made for the illegal purpose of defrauding bona fide creditors or pur- chasers, shall be void only as to any such creditor or purchaser, has never been con- strued as having been intended to change the conservative principle just defined. It leaves the parties still, as between themselves only, to stand on the ground of the common law. And therefore, a party to an executory agreement made to de. fraud creditors or purchasers, has no more right to maintain a suit for coercing tha execution of it, than a party to an executed contract for the game illegal end, w ould have to prosecute a suit for restitution or rescission." 430 CASES IN THE COURT OF ERRORS. Nellis v. Clark. of the plaintiff's witnesses, or is introduced by the defendant who was himself a party to the fraud. I may also add, that in a recent case, founded upon the new rules of pleading in Eng- land, which require the defence in all cases to be stated special- ly, it has been held that the defendant, who was a particeps criminis in an illegal contract, must himself set up that defence to a suit upon the contract, by his plea, or he cannot avail himself of the illegality, even where it conies out upon the di- rect examination of the plaintiff's witnesses. (Fenwick v. Lay- cock, 1 Gale # Dav. Rep. 27.) And in another case, (McKin- nell v. Robinson, 3 Mees. fy Wels. Rep. 434,) the defendant who had borrowed of the plaintiff money to gamble with, was permitted, in an action brought to recover the money lent, to show the illegal purpose for which the loan was made to him and that the plaintiff knew the object for which it was borrow- ed, and thereby defeat the action. I think, however, that the rule that a party to an executory contract which is contrary to law or public policy, or which has been made for the purpose of defrauding creditors, cannot sustain an action upon such contract, was improperly applied to this case. For, as I understand the facts, the note upon which this suit was brought was a good and available security in the hands of Curtis the original payee, who was no party to the fraud between Buttolph and the defendant Clark. It appears by the case, that Buttolph conveyed his land to Clark for the purpose of defrauding Otis, who had an action pending against him for slander, and that Clark gave his bond and mort- gage upon the premises for $700. Buttolph then contracted with Curtis, who was not cognizant of the fraud, to purchase from him a house and lot in Morrisville, and to assign to him the $700 bond and mortgage in part payment of the purchase money. But it was finally agreed between Buttolph, Cur- tis and Clark, that the latter should give to Curtis the note in question, and another note of $400, in lieu of such bond and mortgage. The bond and mortgage were accordingly can- celled, and Clark made his two promissory notes for the $700, ALBANY, DECEMBER, 1842. Nellis o. Clark. payable to Curtis or bearer, and delivered them to Curtis in part payment of the house and lot in Morrisville, which he had by his written contract agreed to convey to Bultolph upon being paid the residue of the purchase money. Upon this stale of facts it is perfectly evident to me that the notes were good and available securities in the hands of Curtis; and that Clark could not have set up the fraudulent nature of the original transaction between him and Buttolph to defeat a recovery on these notes. Nor could Curtis have set up that fraud as a de- fence to a suit brought by Buttolph or his creditors to compel a conveyance of the Morrisville house and lot, upon payment of the residue of the purchase money in pursuance of his con- tract. Such was the situation of the parties at the time Butlolph. uas discharged under the insolvent act, in January, 1829, and assigned all his properly and legal and equitable rights to Beecber. Under that assignment Beecher became entitled to the house and lot in Morrisville, for the benefit of the creditors ol Buttolph ; subject to the payment of the $200, which was then due for the purchase money beyond what was paid by the I wo notes. It appears, however, that Beecher supposed he was entitled to the two jiotes, as assignee of Buttolph ; instead of the contract for the house and lot in Morrisville, in part payment of which contract the notes had been given. He ac- cordingly called upon Curlis for the notes, and they were given up to him. The effect of this transfer of the notes was to sub- stitute such notes for the interest which Beecher had in the contract. And as the notes were valid in the hands of Curlis, they became good and available securities- in the hands of Beecher, as the legal bearer and owner thereof, for the benefit of the creditors of Buttolph. For any other construction of that transaction would operate as a fraud upon the creditors of Buttclph, who were entitled, under the assignment, to the full value of his interest in the house and ot according to the con- tract, as it existed at the time of his assignment under the in- solvent act. After that assignment hud been made, Buttolpb 432 CASES IN THE COURT OF ERRORS. Nellis v. Clark. had no right to interfere in the matter, or to make an arrange- ment with Curtis to relinquish the contract of purchase and have the notes given up and discharged. Indeed, it appears from his own testimony that when he made the pretended ar- rangement with Curtis, the latter had already delivered the notes to Beecher the assignee. And as Beecher had a right to recover on these notes, as the lawful bearer and owner thereof, for the benefit of the creditors of Buttolph, the sale or delivery of the notes to Bruce, one of the creditors, to be collected and applied to the payment of the debts of Buttolph, entitled Bruce to such notes. And Nellis, as the lawful bearer of the notes, was entitled to sue in his own name, whether he was the actual owner of the notes, or the suit was brought for the bene- fit of Bruce and the other creditors of Buttolph. It appears from the case that Clark has actually lost the land which he fraudulently purchased from Buttolph to enable the latter to defeat the collection of the damages in the slander suit. But that affords no legitimate ground of defence to the suit on this note as a failure of consideration. For when he gave these notes he assumed the risk of losing his land, if the fraud was discovered and the plaintiff in the slander suit thought proper to enforce his judgment against the land thus fraudulently purchased. The decision of the judge that the evidence in the case con stituted a legal defence to the suit by the bearer of this note, even if Nellis was aware of all the facts and circumstances of the case at the time of the transfer of the notes to him, was therefore erroneous. For there never was a time when the notes given to Curtis were not legal and available demands and securities, as against Clark the drawer, in the hands of those who were the lawful owners or bearers thereof. For these reasons I think the decision of Judge Denio, before whom the cause was first tried, was correct, ami that the judg- ment of the supreme court should be reversed and a venire de novo awarded. ALBANY, DECEMBER, 1842. 433 Neflia v. Clark. RUGER, Senator. I am of opinion that the sale to the de- fendant was valid and binding as between the parties them- selves. No doubt it was void in respect to Buttolph's credi- tors ; but that is not enough to relieve the defendant from liability upon his contract. The language of the statute is clear and unequivocal, that sales or assignments made with in- tent to hinder, delay or defraud creditors, are void only " as against the persons so hindered, delayed or defrauded j" (2 R. S. 137, 1 ;) and it has been held, that such sales are to be regarded as binding upon the immediate parties thereto, their heirs and personal representatives. (Jackson v. Garnsey^ 16 John. 189 j Osborne v. Moss, 7 id. 161.) If this be so, the distinction taken by the supreme court between executory and executed contracts can have no application to this case. Upon what principle of law, of justice or of sound policy, can we be asked to relieve the defendant from the payment of his note ? Can he be relieved on the mere ground that he was a party to a transaction designed to cheat and defraud innocent creditors 1 I think not. It is not pretended that the defendant was defrauded. On the contrary, he was himself the deceiver, and attempted to impose upon creditors the belief that the pur- chase from Buttolph was honest and fair, when, as to them, it was fraudulent and dishonest. By aiding in the commission of a fraud upon creditors, he hoped to enjoy, at a cheap price, what honestly belonged to them ; and now, when the whole transaction is exposed, he seeks to be relieved from the per- formance of his contract by setting up his own fraud as a de- fence. But, in my view of the law, a party to a fraud of this character cannot avail himself of it to excuse him from the per- formance of his contract. In the case of Bolt v. RogerSj (3 Paige, 157,) the chancellor says : " Wherever two or more persons are engaged in a fraudulent transaction to injure another, neither law or equity will interfere to relieve either of those persons, as against the ether, from the consequences of their own misconduct." The same general doctrine will be found maintained by the following cases : Osborne v. J/ow, (7 John. VOL. IV. 55 434 CASES IN THE COURT OF ERRORS. Nellis v. Clark. 161 ;) Jackson v. Garnsey, (16 id. 189 ;) Findley v. Cooley, (1 Blackf. R. 262 ;) Reichart v. Castator, (5 J5mn. 109 ;) Montefiori v. Montefiori, (1 TT. Black. 364 ;) Babcockv. Booth, (2 JEW, 181.) Again : if my views of the case are correct, the defendant's liability does not depend upon the question whether the sale to him was fraudulent or honest. The note was given some seven months after the sale, and on a transaction having no connec- tion with it. When the deed was executed by Buttolph, in March 1828, he received from the defendant five hundred dol- lars in cash, and the residue of the purchase money was secured by bond and mortgage. The note in question was given by the defendant to Curtis in October, 1828, on the sale of a lot by the latter to Buttolph. Curtis 'received it in part payment of the purchase money, and the bond and mortgage were can- ceiled. The note was therefore given on the transfer of prop- erty entirely unconnected with the alleged fraudulent sale, and for a fair and full consideration. A contract will be upheld as valid, if founded upon a consideration of benefit to the party promising or to a third person ; and here the defendant not on- ly received back his own bond and mortgage to be cancelled, but a new consideration entered into the transaction, viz. the sale or contract of sale from Curtis to Buttolph. The follow- ing authorities are sufficient to show that there was a valid con- sideration for the giving of the note : Armstrong v. Toler, (11 Wheat. 258 ;) Booth v. Hodgson, (6 T. R. 410 ;) Petrie v. Hannay, (3 id. 418 ;) Faikney v. Reynous, (4 Burr. 2069 ;) Johnson v. Hudson, (II East, 180 ;) Simpson v. Bloss, (7 Taunt. 246 ;) Edwards v. Dick, (4 Barn, fy MA. 211 j) Chit, on Con. 7, Jim. ed. of 1834. The note was therefore good in the hands of Curtis, and I am unable to perceive how the transfer of it could have the effect to render it invalid. But it is said that the defendant has lost the farm conveyed to him by Buttolph, and that the consideration of the note has therefore failed. How has he been deprived of the enjoyment of the farm ? Not by reason of a paramount title outstanding ALBANY, DECEMBER, 1842. 435 Nellifl . Claik. in a third person ; but by reason of his own fraud. This is not enough to make out a failure of consideration. No person respects more than I do the high legal attain- ments and great moral worth of the judges who have passed upon this case ; but from the vast amount of business disposed of by them and constantly occupying their attention, it is not surprising that they should sometimes err, as I think a majori- ty of them did in this case. I am of opinion that no principle of law, of equity or of public policy, requires us to allow the defendant to avail himself of the unconscientious defence in- terposed in this case ; and that the judgment of the supreme court should therefore be reversed, BOCKEE, Senator. This action is on a promissory note made by the defendant on the 13th of October, 1828, for $300, payable to William T. Curtis or bearer, four years after date, with in- terest. By the verdict of the jury it is found that the plaintiff had notice of the consideration of the note, and of the facts and circumstances connected with it, before it was transferred to him. The real consideration of the note was the fraudulent sale of land by Buttolph to Clark. A mortgage was first given for a part of the consideration money, for which this note was afterwards substituted and passed to Curtis under circumstan- ces which would doubtless have rendered it available to him as a bonajide purchaser without notice. The arrangement with Curtis being relinguished, and the note delivered over to Beecher, (the assignee of Buttolph,) the original taint of fraud- ulent consideration adheres to it j and the question therefore arises, whether a note given on a fraudulent sale can be re- covered by the payee, or by any holder taking it with knowl- edge of its fraudulent character. This cause must be decided upon the same principles as if Buttolph were the plaintiff. Beecher, the assignee, stands in the place of Buttolph, and Nel- lis, the plaintiff, received the note with full knowledge of all the circumstances attending it. He cannot, therefore, claim the protection due to a bona fide holder. The very elaborate 436 CASES IN THE COURT OF ERRORS. Nellis c. Clark. opinion of the supreme court delivered by Justice Co wen, and the numerous authorities cited by him, have led my mind to the conclusion that a fraudulent executory contract could not have been enforced between the parties at common law, and that our statute has not altered the rule in this respect. The rule that a party shall not be permitted to allege his own tur- pitude, does not apply to the defendant in the present case be- cause Buttolph is as deeply tainted as he. It would apply if Clark were making this defence against an innocent holder of the note, or in case he was seeking to recover back^from But- tolph the consideration money which he .actually paid on the purchase of the farm. Neither can the failure of considera- tion have any weight or influence in the decision of this cause. The law will not lend its aid to adjust equities between the parties to a fraudulent contract ; but leaves them on the same ground upon which they have placed themselves by their acts. This case will admit the joint application of the maxims " ex turpi causa non oritur actio" and "in pari deliclo melior est conditio possidentis." The judgment of the supreme court ought to be affirmed. On the question being put, " Shall this judgment be re- versed ?" the members of the court voted as follows : For reversal : The PRESIDENT, the CHANCELLOR and Sena- tors BARTLIT, ELY, FRANKLIN, NICHOLAS, PLATT, RUGER and VARNEY 9. For affirmance : Senators BOCKEE, DIXON, HARD, HUNT, JOHNSON, PAIGE, ROOT, SCOTT, VARIAN and WORKS 10. Judgment affirmed. ALBANY, DECEMBER, 1842. 437 Curtis e. Hubbard. CURTIS vs. HUBBARD. A man's dwelling-house is his castle, not for his own personal protection merely, but also for the protection of his family and his property therein. Per WAL. WORTH, chancellor. A defendant in an execution, by closing the outer doors of his dwelling-house against the sheriff, may prevent the latter from entering to make a levy on hi* goods. Per WALWORTH, chancellor. As a general rule, no one can acquire, by his own illegal act, a right to the custody of another's person or property. Per WALWORTH, chancellor. The outer door o.f a dwelling-house being latched merely, the sheriff entered it, contrary to the known will of the owner, and levied upon his goods therein by virtue of a fi. fa. : HELD, illegal, though the owner was not in the house at the time ; and that the levy gave the sheriff no right to remove the goods. Held, further, that even a guest in the house might lawfully resist the sheriff's at- tempt to remove goods thus seized, using no more force than was necessary. The case hi the Year. Book, 18 E. 4, (fol. 4, pi. 19,) commented on and explained. Per WALWOKTH, chancellor. ON error from the supreme court, where Curtis sued Hub- bard for an alleged assault and battery. The court below ren- dered judgment in favor of the defendant, and the plaintiff brought error. For a report of the case in that court, together with the opinion there delivered, see 1 Hill 336 ct seq. C. P. Kirklandj for the plaintiff in error. C. Tracy, for the defendant in error. WALWORTH, Chancellor. This case presents two important questions in relation to the rights and liabilities of sheriffs and other ministerial officers, in the execution of civil process. The sheriff, after being forbidden by the owner of a house, the outer door of which was shut and fastened only by the ordina- ry latch, entered the house for the purpose of seizing the goods of the owner upon an execution against him ; the family of 438 CASES IN THE COURT OF ERRORS. Curtis v. Hubbard. such owner being in the house, although he was himself out- side the door. And the sheriff, having thus entered the house, seized upon and was in the act of removing a part of the goods, when the defendant in this suit, the brother of the owner, and by his direction, assisted in expelling the sheriff from the house and in preventing the removal of the goods therefrom. The question whether the defendant in an execution had the right to close the doors of his house against the sheriff, to pre- vent a levy upon his property, appears to have been a matter of some doubt in England at a very early day. And Fitzhcrbert has a note of a case said to have been decided as early as 1325, (Fitzkerb.Mr.tit. Execution, pi. 252, H. IS Edw. 2,) which is in favor of the right of the sheriff to enter the dwelling-house forcibly, to seize goods upon execution. No such case, how- ever, is to be found in the Year-Books of that term ; nor is it stated by Fitzherbert whether the execution was in favor of the king or of a private person. The question came before the court of king's bench about one hundred and fifty years after- wards, (Year-Books, 18 Edw. &,fol. 4 ;) and the decision was against the right of the sheriff to break the defendant's dwel- ling-house with a view of levying an execution upon his goods therein. Again, in the latter part of the reign of Queen Eliza- beth, (1602,) in the case of Semayne v. Gresham, (Cro. Eliz. 90S, Moor. 668, Yelv. 29, S. C.) the question was presented to the queen's bench for decision, in a suit brought against the owner of a house who had closed his doors against the sheriff, so that he could not enter to take the goods therein which be- longed to the defendant in the execution. Upon the first argu- ment, according to the report of the case by Moore, Popham, C. J., and Mr. Justice Gawdy, relying upon the note of the case in Fitzherbert, were clearly of the opinion that the sheriff might break the door of the dwelling-house to execute the pro- cess against the goods. Fenner and Yelverton, the other two justices, being of a contrary opinion, no judgment was then given. But a fifth judge, Mr. Justice Williams, being appoint- ed in the king's bench in the first year of James the first, the ALBANY, DECEMBER, 1842. 439 Curtis t. Hubbard. case was again argued the next year ; and Williams concurring in opinion with Fenner and Yelverton, the decision was made against the sheriff's right, as reported by Lord Coke. (Se- tnayne-s case, 5 CoAce, 91.) By this decision, the right to close the outer door of the dwelling-house upon the sheriff when he came with an execution, at the suit of a private person, to levy upon goods, was placed upon the same basis as the right to prevent a similar entry when he came with like process to ar- rest the person of the defendant ; and that appears to have been considered the settled law of England ever since. It has also been constantly recognized as the common law of the sev- eral states of the union where the English common law pre- vails. Nor does the fact that the defendant in the execution was not ;n his house at the time when the sheriff opened the door and went in contrary to his known will on the subject, aiter his rights. For a man's house is his castle, not for his own personal protection merely, but also for the protection of his family and his property therein, while it is occupied as his residence. The remaining question is whether a sheriff, who has entered the house of another m direct violation of the law, for the pur- pose of arresting the owner or seizing his goods, can be justified in consummating the wrong by arresting his person or remov- ing the goods, where it is all one continuous act. I think, upon authority as well as upon principle, he cannot. And I fully concur in the opinion of the learned chief justice of Mas- sachusetts, in the case of Jlsley v. Nicholsj (12 Pick. Rep. 270,) upon this question. As a general rule, no person can ac- quire a right to the custody of the person or the possession of the property of another by his own illegal act. And I think this would never have been considered an exception to that rule, had not the language of the case cited from the Year-Books been misapprehended. In Semayne's case, either the counsel, or one of the judges who delivered the opinion of the majority of the court) is represented as saying, " by Littleton and all his companions it is resolved, that the sheriff cannot break the de 440 CASES IN THE COURT OF ERRORS. Curtis v. Hubbard. fendant's house by force of a fieri facias, but he is a trespasser by the breaking, and yet the execution which he then doth in the house is good." But that certainly could not have been intended as a translation of the language of the case in the Year-Book, (18th Edw. 4th.) And Cowper has done great injustice to Lord Mansfield by quoting, as if it was his own language, a statement of that case which bears no resem- blance to the note of the decision as it is in the Year-Book. A very fair translation of the whole case is given by Mr. Metcalfe, in his note to the case of Semayne v. Qresham in Yelverton; which translation does not vary materially from that of Mr. Justice Cowen in the case of The People v. Hubbard, (24 Wend. Rep. 371.) The substance of it is, that the sheriff had an exe- cution against a party in a civil suit who had locked up his goods in a chest in his house ; and the sheriff went and broke open the house and seized the goods and carried them off. The case being stated to the court for its decision whether the sheriff was guilty of a tort, Littleton and his associate judges held that the party in- jured might have a writ of trespass against the sheriff for break- ing his house, notwithstanding the execution ; for, as they say, " the fi. fa. will not excuse him of the breaking of the house, but of the taking of goods only." Not that it would excuse the sheriff for having taken the goods in this particular case, after he had wrongfully broken into the house where they were. But the words des biens, which, literally translated, is " of the goods," seem to have led to the erroneous conclusion that the court meant to decide that the taking of the goods in the particular case then stated to the court, was a justifiable act, notwithstanding the breaking of the house to get access to them. In the French and Norman-French languages, the article is frequently used in cases where we dispense with it. And des, which appears to be a contraction of the preposition de and the article les, is used where we make use of the corres- ponding preposition only. Thus, the English expression, "the laws of men," would, in French, be les lois des hommes; that is, literally, " the laws of the men." ALBANY, DECEMBER, 1842. 441 Curtis v. Hubbard. Lord Mansfield, who seems to have taken it for granted, that in the case in the Year-Books the court had decided that the taking of the goods was lawful notwithstanding the illegality, intimates that he would not probably have so decided in a case of the first impression. (Lofft, 381; Cowp. G.) And it is cer- tain no such question could have arisen in Semayne's case, as no goods had been there taken by the sheriff; for it was an ac- tion against the owner of the house for shutting his doors and refusing to permit the sheriff to enter and seize the goods. The fact also that in the subsequent case of Yates v. Delamayne, (Bac. Abr. tit. Execution, (JV.) note,) the court set aside the levy on an execution, because the sheriff had illegally entered the de- fendant's house to execute the writ, is conclusive to show that it was not then considered as settled law in England that the sheriff had a right to seize the defendant's goods after having obtained access to them by his own wrongful act. That case, too, appears to have been decided in 1776, only two years after the case of Lee v. Gansel, and while Lord Mansfield continued to preside in the court of king's bench. For these reasons, I think the. justices of the supreme court were clearly right in deciding that if the entry of the sheriff in the present case was illegal, the defendant, acting under the direction of the owner, had a right to expel him from the house and to prevent his carrying off the goods. I therefore can see no error in the judgment of the court below, and think that judgment should be affirmed. The PRESIDENT delivered an oral opinion in favor of an affirmance, and ROOT, sejtator, in favor of a reversal of the judgment of the supreme court. On the question being put, " Shall this judgment be rever- sed ?" the members of the court voted as follows : For reversal : Senators FAULKNER, NICHOLAS, PLATT, RHOADES, ROOT and WORKS 6. VOL. TV. 56 442 CASES IN THE COURT OF ERRORS. Safford v. Wyckoff. For affirmance : The PRESIDENT, the CHANCELLOR, and Sena- tors BARTLIT, BOCKEE, CLARK, DENNISTON, FRANKLIN, JOHN- SON, PAIGE, RUGER, SCOTT and VARNEY 12. Judgment affirmed. SAFFORD vs. WYCKOFF, President of the Farmers' Bank of Seneca county. A negotiable draft or bill of exchange in the ordinary form, though issued by an association organized under the general banking law, without the sanction of the comptroller, will bind the association as in favor of a bona fide endorsee ; and this, notwithstanding it be signed by the cashier only. Otherwise, however, as between the association and one not occupying the position of a bona fide holder, if it appear that the draft or bill was issued by way of loan, or for the purpose of being put in circulation as money. Semble. How far these associations may, as incidental to the general powers expressly con ferrcd on them by statute, issue negotiable paper, without the sanction of the comptroller e. g. for the payment of then 1 debts, the transfer of their funds, &c. discussed and considered. Where there is enough on tbe face of a negotiable note or bill of exchange to create a suspicion that it was issued contrary to law, and to put the party who takes it upon enquiry, he is not entitled to be considered a bona fide holder. Semble. A negotiable note or bill of exchange, though given by a corporation having only an incidental right of issuing such paper in certain special cases, must be pre. eumcd to have been legally issued until the contrary appear. Semble. ON error from the supreme court. The action was brought by Safford, against Wyckoff as president of the Farmers' Bank of Seneca county, and one Dodge, to recover the amount of a bill of exchange drawn by the bank in favor of Dodge, and endorsed by him. The cause was tried twice j once in Decem- ber, 1839, and again in October, 1841. On the first trial, a verdict was rendered in favor of the plaintiff; but the supreme court afterwards set this aside, and granted a new trial. For the facts of the case as proved upon the first trial, and the opin- ion delivered in the supreme court on granting the new trial, ALBANY, DECEMBER, 1842. 443 Safford r. Wyckoff. see 1 Hilly 11 et seq. Intermediate the first and second trial, the action was severed as to the defendants, and proceeded after- wards against Wyckoff alone. The facts proved upon the se- cond trial, however, so far as the material question in the case is concerned, were not essentially different from those which the plaintiff gave in evidence at the first, and the circuit judge ordered a nonsuit. At the May term of the supreme court, 1842, the plaintiff moved for a new trial upon a bill of excep- tions, but the motion was denied, and judgment rendered in fa- vor of the defendant j whereupon the plaintiff sued oat a writ of error. 0. Allen 6f S. StevenSj for the plaintiff in error. J. Holmes Sf Willis Hall, for the defendant in error WALWORTH, Chancellor. The first question for consideration in this case is, whether an association formed under the general bank law of 1838, is authorized to issue negotiable paper for any purpose, except such circulating notes as are countersigned and registered in the office of the comptroller. I have considered these associations, for all substantial purposes, corporations, having the general powers of corporations, except where re- stricted by the act under which they are organized. And, like other corporations, they can only exercise the powers, and car- ry on the business, which the statute under which they are cre- ated has authorized them to exercise and carry on, either in terms or by necessary implication. For I presume no one can suppose that these associations are authorized to carry on every kind of business which an individual could transact, except such as they are expressly prohibited from transacting by the general bank law. I shall, therefore, examine their powers and their capacities to contract, upon the supposition that they are in fact corporations, created for certain specified objects, and subject to the restrictions in the acts under which they were created and are exercising their powers ; and that they 444 CASES IN THE COURT OF ERRORS. Safford . Wyckoff. have such incidental power and authority as they would have had by the common law or otherwise, if they had been called corporations in the act under which they are organized. There is no express prohibition in the act of 1838 against making, and putting in circulation as money, notes and bills which are not countersigned and registered in the comptroller's office. But the general restraining law, as amended by the act of February, 1837, still declares that no person, association of persons, or body corporate, except such bodies corporate as are expressly authorized by law, shall issue any bills or promissory notes, or other evidences of debt, as private bankers, for the purpose of loaning them, or putting them in circulation as money, unless thereunto specially authorized. (1 R. S. 712, ^ 6 ; Laws of 1837, p. 14.) And the act of 1838, which only authorizes a certain kind of notes to be put in circulation as money, leaves the restraining law in full force as to every other evidence of debt. These banking associations, therefore, are prohibited from issuing any bills or promissory notes, or other evidences of debt, for the purpose of loaning them, or having them put in circulation as money ; whatever forms such evi- dences of debt may assume. Any officer or agent of these associations, then, who shall be guilty of issuing any such evidences of debt with the intention of having them loaned or put in circulation as money, or who shall directly or indirectly assent to the same, will render himself liable to the penalty of $1000, mentioned in the restraining law, as the forfeiture for a violation of its provisions. (1 R. S. 712, 7.) And a nego- tiable bill or note which is issued contrary to law, or upon an illegal consideration, is void in the hands of any one who takes it with notice of the illegality. So when it appears upon the face of such negotiable securities that they were issued contra- ry to law, or where 'there is sufficient to create a suspicion of their illegality and to put the party who takes them upon en- quiry, he is not a bonafide holder, and cannot recover on them as such. (Broughton v. The Manchester Waterworks Compa- ny ', 3 Barn. $ Aid. Rep. 1 ; Wiggin v. Bush, 12 John Rep. ALBANY, DECEMBER, 1842. 445 Safford t>. Wyckoff. 306.) Thus, in the case of The Attorney General v. The Life fy Fire Insurance Company, (In Chan. 15th March, 1842,) where an insurance company had issued and put in circulation its ne- gotiable bonds as money, or as a circulating medium, in the form of post notesj in violation of the restraining law, and the form and appearance of the bonds were such as to indicate that they probably were made to be thus circulated, the referees to whom the question of the liability of the corporation to the bond holders was referred, decided that it was not liable. And I sustained the decision of the referees, upon the ground that the fact of the illegal issue of the bonds was proved, and that there was sufficient upon the face of them to put those who re- ceived them upon enquiry. But a bill, or any other negotiable security which is not up- on its face illegal and unauthorized, is valid in the hands of a bona fide holder without notice, who has paid a valuable con- sideration therefor, except in those cases in which the security is made void by statute. ( Vallett v. Parker ', 6 Wend. Rep. 615.) And if this association had the right to give a promis- sory note or bill in such form as to be negotiable, for any pur- pose, signed by the cashier of the association only, the plaintiff was entitled to recover in this case. For, where a corporation is authorized to give a negotiable security for any purpose, and there is nothing to show what the particular security was given for, if there is nothing upon the instrument itself to cre- ate a suspicion that it was issued for an illegal object, the court will presume that it was given for a legitimate purpose, rather than for a purpose which was unauthorized and illegal. It has frequently been decided that a corporation which has the right to contract debts, may give a negotiable note or bill, in pay- ment or security for such a debt ; unless such corporation is restrained by its charter or by statute, from doing so. Thus, in the case of Mott v. Hicks, (1 Cowen's Rep. 513,) where a company had been incorporated for the manufacturing of glass, the supreme court held that a note given by the corporation, by its president, payable to the order of Horsfield, was a valid 446 CASES IN THE COURT OF ERRORS. Safford v. Wyckoff. note in the hands of the endorsee. And in Barker v. The Me- chanics' Fire Insurance Company, (3 Wend. Rep. 94,) it was held that, although an insurance company could not make and issue notes which were intended for circulation as bank paper, the corporation might give a note for a debt contracted in the course of its legitimate business. (See also Major v. Ham- mond, 9 Barn. <$ Cress. 363.) If these banking associations then are in fact corporations, as the supreme court has very properly decided that they are, I can find nothing in the act under which they are organized which prohibits them from giving negotiable notes or drafts in payment of the rent of their banking houses, the salaries of their cashiers and clerks, and for many other purposes connected with the legitimate business of banking. And, for any thing that appears to the contrary, the draft set out in this record was given in payment of such a debt ; though, out of the case, it may perhaps be shown that it was made to be put in circulation as money. The objection, however, that the instrument given in evi- dence was not executed in the manner required by the twenty- first section of the general banking law, so as to make it a valid and binding contract which could be sued on as such by an endorsee, is one which I have in vain endeavored to over- come ; for I have no doubt the plaintiff took this draft in good faith, believing it was valid and binding upon the asso- ciation. The twenty-first section of the general banking law declares in express terms, that contracts made by any such as- sociation, and all notes and bills by them issued and put in cir- culation as money, shall be signed by the president or vice- president and cashier thereof. This is an entirely different pro- vision from that contained in the charter of the Derby Fish- ing Company, upon which the decision was founded to which we were referred, from the state of Connecticut. (2 Conn. Rep. 252.) There the provision was that all policies of insur- ance made by the company, signed by the president, and coun- tersigned by the secretary, should be binding on the company according to the terms and tenor thereof. This is a very com- ALBANY, DECEMBER, 1842. 447 Safford . Wyckoff. mon provision in the charters of insurance companies and in- corporated banks, and was originally inserted in such charters to obviate the ancient common law rule that a corporation could only contract by deed under its common or corporate seal ; and also to relieve the holder of the policy of the com- pany, or the note of the bank, from the burden of proving that the officers who signed such policy or note were' authorized by the corporation to make the contract. In cases of that kind, the statute simply declares that contracts thus signed shall be binding upon the corporation ; but not that all contracts shall be executed in that form, so as to deprive the corporation of the power to contract under its corporate seal, as it was 'au- thorized to do by the common law, or to make a contract in any other form which the law allows. When the legislature, however, declare that all contracts made by these associations shall be signed in a particular way, I am not prepared to ad- mit that the court is authorized to say that a valid written con- tract may be made in a different form. This, of course, does not include a class of contracts that are never in fact made by the association, but which arise by operation of law merely , as, in the ordinary case of an implied assumpsit to repay moneys deposited by dealers with the bank. In such cases the certifi- cate of the cashier or teller, or the entry in the pass-book of the customer, is not a contract ; it is only evidence of a fact, which might be proved by parol, to raise an implied promise by operation of law. But a negotiable note, draft or bill of exchange is an actual contract ; and it must be in writing, and properly signed, to enable a third person to recover on it as the endorsee or bearer of the instrument. The late Chief Justice Marshall says, it is a general rule that a corporation can only act in the manner prescribed by law. Again, he says : " Without ascribing to this body, which in its corporate capacity is the mere creature of the act to which it owes its exis- tence, all the qualities and disabilities annexed by the common law to ancient institutions of this sort, it may correctly be said to be precisely what the incorporating act has made it, to derive all 448 CASES IN THE COURT OF ERRORS. Safford . Wyckoff. its powers from that act, and to be capable of exerting its fac- ulties only in the manner which that act authorizes." (Head fy Jhnvry v. The, Providence Insurance Company, 2 Cranch, 167.) I am not prepared to say this language was properly applied to the case then under consideration ; in which the provision in the charter was similar to that contained in the act incorporating the Derby Fishing Company. But Mr. Justice Story, in a subsequent case, (12 Wheaton^ 68,) sanctions it in its full extent. And in the very recent case of The Bank of Jiugusta v. Ea-ily, (13 Peters, 587,) Chief Justice Taney, in delivering the opinion of the supreme court of the United States, says, "it may be safely assumed that a corporation can make no contracts, and do no acts either within or without the state which creates it, except such as are authorized by its charter ; and those acts must also be done by such officers or agents, and in such manner as the charter authorizes." In the language of one of these distinguished judges, there- fore, I must say, " if the statute imposes the restriction, it must be obeyed." And the statute of 1838, having said, in so many words, that contracts made by such associations shall be signed by the president or vice president and cashier thereof, a bill of exchange, or draft, signed by the cashier only, is not a valid written contract and security, which can authorize an endorsee to recover thereon against the association, in a suit at law in his own name, and without showing that he has paid money thereon which has been applied to the use of the asso- ciation so as to create a contract by operation of law. I must, therefore, vote to affirm the judgment of the su- preme court. PAIGE, Senator. Parol agreements made by the authorized agents of a corporation, in relation to matters within the scope of its legitimate business, are deemed the express contracts of the corporation itself ; and all duties imposed by law, and all benefits conferred by request of the corporation, raise an implied promise on which an action may be maintained. (Danforthv. ALBANY, DECEMBER, 1842. 449 Sufford e. Wyckoff. Scholiarie Turnp. Co., 12 John. 230.) It is well settled also, that a corporation may give a promissory note for a debt con- tracted in the course of its legitimate business, though not spe- cially authorized to do so by statute. (Barker v. Mechanic Ins. Co., 3 Wend. 94.) But where the mode of executing written contracts by a corporation has been prescribed by statute, it cannot be departed from. (Mechanics' Bank v. Sank of Co- lumbia^ 5 Wheat. 326 j Jlng. fy Ames on Corp. 164.) How- ever, if the contract be void because of a defective execution, the consideration received, or the original debt for which the contract was given, may be recovered by action. These re- marks apply to banking associations, whether they are or are not corporations j for I have no doubt that such institutions may give promissory notes or bills of exchange payable after date, without being countersigned in the comptroller's office, for debts legitimately contracted. Such notes or bills must, however, be signed by the president or vice president and cashier, as required by the 21st section of the act to authorize the business of banking. (Sess. L. o/'3S, p. 250.) I am cf course speaking of bills and notes not intented for circulation as money ; for, if issued for that purpose, they must not only be signed by the officers mentioned, but must also be counter- signed in the comptroller's office. I am of opinion that, even before the act of 1840, (Sess. L. o/'40, p. 306, 4,) banking associations had no right to remit funds in any other way than by sight drafts ; but however that may be, there can be no doubt, I think, that the bill in question is void, because net executed in the manner required by law. It cannot be maintained that the power to buy and sell bills of exchange, which is given by the 18th section of the general banking law, confers the right to issue paper like that on which the plaintiff seeks to recover ; for there is a manifest difference between issuing, and buying and setting bills already issued. It might be said, with equal propriety, that, because banking associations are authorized to buy and sell foreign coins, they may manufacture such coins. VOL. IV. 57 450 CASES IN THE COURT OF ERRORS. Safford . Wyckoff. Although the bill in question is void by reason of a defective execution, yet it does not on its face appear to have been given for an illegal consideration. A bonajide endorsee of the paper might, therefore, recover the consideration paid for it in an action against his immediate endorser, and the original creditor could collect of the association the debt or considera- tion for which it was delivered to him, provided such debt or consideration came within the legitimate purposes of the asso- ciation. Although the plaintiff cannot maintain this action, I have no doubt he can recover of Keeler & Durant the money paid to them on the transfer of the bill. The latter have the same remedy against Dodge, their immediate endorser, who may in like manner recover of the association, provided the bill was founded on a legal consideration. For these reasons I am in favor of affirming the judgment of the supreme court. HOPKINS, Senator. The supreme court put its decision of this cause upon considerations of public policy, grounded upon the assumption that the draft or bill upon which the suit was brought, was issued for circulation as money, or at least as an unlawful circulating medium. Other objections to the validity of the paper have been urged by counsel and will be considered ; but this is the great feature of the case, and that with which the opinion of the supreme court is wholly occu- pied. It becomes important then to enquire, what the char- ter of the paper is, in this respect. There is no evidence in the case in relation to it, except what may be inferred from the form and contents of the draft itself, of which a printed copy only is given ; and from which it would seem not to differ in appearance from ordinary drafts in writing, or, at most, printed with common type on ordinary paper, as contained in the case. There is no evidence that it bore any resemblance to bank bills or circulating notes, nor was any such objection raised on the trial. If it bore any similitude to such paper, it might easily have been shown j and, in the absence of such testimony, we ALBANY, DECEMBER, 1842. 451 Safford r. Wyckoff. must presume that it only bad the appearance of an ordinary draft or bill of exchange, drawn by one bank or commercial house ou another. The appearance of the paper itself, pro- duced before us on the argument, does not conflict with this view of it. It was for the sum of $3000 a sum not usual in bills circulated as money. It was drawn payable thirty days after date, to the order of the payee, and by him endorsed to the order of the endorsees. It was written upon its face to be without acceptance till due, and was signed by only one officer ; a piece of paper, it would seem, in no respect calculated to circulate as currency, and evidently not intended as an evasion of the law in that respect. Indeed, the supreme court in a later case, (Smith, v. Strong, 2 Hill, 241,) rather abandon the idea that tuch paper is used as a circulating medium, but urge that, by giving it validity, it may become such. I humbly con- ceive that the paper described in this case, being as it is with- out security, except such as is derived from the endorsers, could in no way obtain circulation as money or be used as a circulating medium, any more than like negotiable paper of individuals or private corporations. It is, to be sure, negotia- ble, but that was necessary for the purpose of convenient and safe remittance. Beyond this, it is not a description of paper calculated to become a circulating medium, and is in no sense calculated to circulate as money. The institution issuing it held out no security for its payment the shareholders even not being necessarily liable, nor were the drawees to be asked to become liable and it could obtain no confidence in commu- nity, except so far as the names of the endorsers might give it character. If this paper is to be condemned as forming an un- lawful currency or circulating medium, then, by consequence, all bills of exchange and negotiable paper of the kind, by whomsoever issued, must be deemed a nuisance, and public policy requires such paper to be declared void. And yet, we find that it has peculiar privileges over other evidences of debt, and receives special favor and protection by our laws as one 452 CASES IN THE COURT OF ERRORS. Safford v. Wyckoff. of the greatest conveniences and most valuable aids to com- merce and business generally. It would seem that the paper in question was such as not to have excited an idea on the trial that it could be used as a currency or circulating medium in any sense. If it was of a character to admit even of a difference of opinion, the point should have been raised, and opportunity given to the plaintiff to adduce evidence upon the question. The fact is no where found by the jury, nor is it even presumed by the judge who tried the cause ; indeed, the parties themselves throughout the case designate the paper simply as a " draft." If then no evidence is shown and nothing appears on the face of the paper to ren- der it objectionable as being issued for circulation as money, or as forming a circulating medium in any different sfnse than ordinary negotiable paper of the kind, certainly we cannot be justified in presuming that there was an intent to issue it for such purpose, and especially we cannot presume that the plain- tiff had any knowledge of such intent. It is a rule of law that a person shall be deemed innocent till proved guilty j and the rule extends to cases of fraud as well as crime. " Honesty, not fraud, is to be presumed," says Justice Cowen in Starr v. Pcc/c, (1 Hill, 373,) where the rule is fully recognized as applicable to cases of fraud. The supreme court infer that the plaintiff is chargeable with notice that the bill was a nullity, because on the trial he came forward with proof that the bank which issued it was an institution under the general banking law. They say, this proof struck his claim with death. Now it was necessary for him to adduce such proof to sustain his suit in form against the presi- dent ; but, that such proof was adduced on the trial, is not evi- dence that, at the time he received the draft, he knew the legal character of the bank. The court admit that he must be in- tended to be an innocent holder, so far as regards any knowl- edge that the bank on which the draft was drawn was an in- stitution under the general banking law, because no proof was offered on the trial that it was such an institution. It is diffi- ALBANY, DECEMBER, 1842. 453 Saffbrd . Wjckoff. cult to conceive why he should be deemed any more acquainted, at the time he received the draft, with the lecral character of i 9 *-2 the bank which drew it, because afterwards, on the trial, proof was adduced to show that character. It can only be by a pre- sumption, contravening the rule laid down by Mr. Justice Cow- en, just referred to. It was conceded that the court.could not know judicially that the drawees were not a corporation which might issue all kinds of negotiable paper ; and I do not see why the plaintiff was any more bound to know, when he received the draft, that the drawers were not a corporation that might issue all kinds of negotiable paper, even supposing that they have not such right for any purpose. But in Smith v. Strong, (2 Hill, 241,) where the plaintiff in a suit against an endorser of such paper was not under the necessity of adducing the proof, which it is said in this case struck the plaintiff's claim with death, the court found it neces- sary to go further, and argued that the plaintiff was to be presum- ed to have had notice, because the draft or bill purported on its face to have been issued by a bank. The illegality of its cir- culation, and its invalidity in the hands of the plaintiff, were consequently made to depend upon the fact that it purported to be issued by a bank, no matter what its appearance might other- wise have been. If the court is driven to this criterion, as it must be in suits between endorsers and endorsees, then, conse- quently, the paper of an institution or of an individual banker, doing business under some other name than that of a bank, whose paper would not purport upon its face to be issued by a bank, might have validity to some extent and enjoy a privilege of circulation which the same paper could not enjoy if issued under the name of a bank, although issued under the same law. An institution under the general banking law might le- gally, and sometimes perhaps appropriately, adopt the name of " Paper Manufacturing Company" under which name their drafts might be received without enquiry j but if it adopt the name of a bank, as it has an equal right to do, then the same- drafts would be deemed to be a circulating medium and void 454 CASES IN THE COURT OF ERRORS. Safford v. Wyckoff. in the hands of every one, for want of being countersigned by the comptroller. If the word " bank" on a draft, is to alter its character and make it a circulating bank bill, although having no resemblance to circulating bills, then must all drafts and bills of exchange issued by safety fund banks, though to an indefinite amount, be within the security of the safety fund. I do not think that so much effect is to be given to such a use of the word. I think the plaintiff must be deemed a bona fide holder, so far at all events as regards any intention, either on his own part or that of the drawers, to give circulation to the draft as an unlawful currency or circulating medium. But conceding that the paper was not issued for circulation as money, and was not likely to come in use as a circulating medium, still, it is objected, that the bank had no authority to issue drafts for any purpose ; and it is contended that, although the statute does not expressly prohibit it, nor anywhere declare such paper void, yet the bank may set up its own wrongful act of issuing it without authority, to protect itself from payment. I shall examine the question whether such a defence may be maintained, even if the paper was issued without authority ; but will first enquire whether it was so issued. If the bank had authority to draw drafts at all, there was no provision, at tho time this was drawn, against its being payable at a future day. The act of 1840 providing against it had not been passed. What then do we find in the general banking law of 1838 upon the question ? We find in several places a recognized dis- tinction between bills and notes to be issued for circulation as money, and other paper not intended for such purpose. In re- gard to the former, we find that the act professes to provide every possible security for the protection of the public, in re- lation to paper to be issued for circulation as money ; while it holds out no security for the latter, and does not profess to protect other creditors of the banks, but leaves them much to their own watchfulness and vigilance. It even exempts the shareholders from liability, unless they elect to become liable. The 7th clause of the 26th section of the act contemplates the ALBANY, DECEMBER, 1842. 455 Saflbrd r. Wyckoff. issue of evidences of debt, other than bills and notes. It also requires a statement of bills and notes generally, or without adding " issued for circulation as money ;" while the 9th clause requires a statement of bills and notes issued for circulation as money. The 29th section allows fourteen per cent, interest in case of non-payment of bills or notes issued for circulation as money. The 31st section prohibits paper issued for circulation as money of a less denomination than $1000 being made paya- ble at any other place than the office of the bank issuing it. The 21st section requires " contracts made by any such associ- ation, and all notes and bills issued and put in circulation as money? to be signed by the president, or vice president and cashier j leaving the inference that there might be other bills and notes not issued for circulation as money that would not be subject to such interest, that might be payable elsewhere than at the office of the bank issuing them, and might be sign- ed otherwise than is prescribed for paper to be issued for such circulation. But more direct authority, I think, is found in the 18th sec- tion, which authorizes the carrying on of the business of bank- ing, and the exercise of all incidental powers necessary to carry on such business ; for such I think is the fair construction of that section as regards incidental powers. Among those powers must be implied that of drawing and transferring funds by draft without which a bank, at least in the country, would no doubt find itself greatly embarrassed in its appropriate business transactions. It may be said that in this case there were no funds to transfer ; but if so, it does not appear that the plantiff knew such to be the case when he received the draft. If it is said that the draft was payable at a future day, it may have been drawn against funds subject to draft only on a future day, or the bank may have just purchased, as it had a right to do, a draft on the same drawees, for a larger sum, payable at the same time. If the bank had a right to draw a draft for any purpose, the abuse of the right, certainly, should not prejudice an innocent holder. 456 CASES IN THE COURT OF ERRORS. Safford v. Wyckoff. But if there is not sufficient express authority in the act, there is no prohibition j and I see no reason why these banking associations or corporations, if they are to be so called, have not the same right to make such paper, as manufacturing and other corporations, which, like these banking associations, are organized under a general law conferring no direct authority to make negotiable paper, but whose power to do so is neverthe- less fully recognized. (Mott v. Hicks , 1 Cow. 513; Moss v. Oakley, 2 Hill, 266.) It is further objected that the draft is not signed by the presi- dent or vice president as well as cashier, according to the 21st section of the act, which requires contracts made by such asso- ciations, and all notes and bills issued for circulation as money, to be so signed. The term "contract" is ordinarily applied to agreements where both parties become obligated. And al- though notes and bills, where but one party is dound, are tech- nically contracts, yet they are not so designated in ordinary legal phraseology. If the word " contract" was intended to include all paper, why was it followed by tne clause specifying notes and bills issued for circulation ? I do not think the provision of the 21st section of the act was intended to apply to drafts or bills not intended for circulation as money, drawn in the ordinary course of banking business for transferring the funds of the bank. If the bank had purchased a bill of exchange or draft payable to Us older, which it wished to sell again, as it has a right to do, is it reasonable to suppose that it must be endorsed by both president and cashier ? And yet the endorsing is as much a contract as the drawing of a bill. So also with respect to certificates of deposit. Such a con- struction of the law would subject the banks to unnecessary in- convenience and expense. As before remarked, that provision being made expressly applicable to bills and notes issued for circulation as money, leaves the inference that bills of exchange and negotiable paper not intended for such purpose, may be signed otherwise. But if the provision does extend to such paper, I see no reason for it except the protection of the bank ; ALBANY, DECEMBER, 1842. 457 Safford e. Wyckoff. and if the bank sees fit to waive the formality and to pay its paper of this description not having the signature of the presi- dent, as was admitted in this case to have been its custom, I think it should be concluded by it. It is perhaps one of the most attractive features of the law, that there are certain general principles which form prominent land-marks, not only to guide the jurist and lawyer, but which are of such obvious import and so consonant with correct views of right and wrong as to be recognized by the community gene- rally as their rules of right action. They even become max- ims in law ; and just so far as we depart from them, so far are we pretty certain to depart from the safe paths of justice. Among them is that which declares that no one shall be per- mitted to take advantage of his own wrong. " Nullus commo- dum capere potest de injuria sua propria." This is a rule of such binding force as to be held obligatory against the wrong- doer, even as between himself and one cognizant or even par- ticipant of the wrong. If one, for the purpose of defrauding his creditors, conveys his property to another, he cannot set up the fraud to avoid the deed as between himself and his accom-' plice even. (Jackson v. Garnsey, 16 John. R. 189.) It is against public policy to allow such conveyances ; but the fraud- ulent grantor is not permitted to set up such considerations, nor will courts interpose them as between him and his accomplice or grantee knowing the fraud. As to his creditors, the statute declares the conveyance void, and it must of course be so ; but even then it will not be held void as against an innocent pur- chaser from the fraudulent grantee. (Anderson v. Roberts, 18 John. R. 512 ; Jackson v. Henry, 10 John. R. 185.) The decision of the supreme court in the present case re- verses the maxim, and allows a party to take advantage of his own wrong, even as against an innocent third party ; and thus, under the plea of protecting the public, he is allowed in fact to protect himself at the expense and loss of the injured individu- als in part at least composing the public. Is the object at- tained even at this sacrifice of individual rights ? On the con- VOL. IV. 58 458 CASES IN THE COURT OF ERRORS. Safford e. Wyckoff. trary, would not the object of protecting the public be more certainly attained by adhering to the maxim, which at least would be certain to protect some of the individuals constituting the public 1 Besides, if the public seeks any other protection than that afforded to individuals if it seeks to enforce compli- ance with its laws, it should be by becoming parties litigant and pursuing the proper public remedies (if it has deemed the matter of importance enough to provide any) for the punish- ment of the wrong-doer and to restrain him from further wrong. If it has not provided remedies, it should do so, and not let in- dividuals suffer. In the case of the fraudulent conveyance, creditors cannot take advantage of the fraud except by becom- ing parties to a suit, and even then innocent third parties are not allowed to suffer. It is against public policy undoubtedly, that a safety fund bank should issue bills to be circulated as money, beyond the amount allowed by its charter; but would the bank be permitted to set up such a consideration, to defeat payment to a bonafide holder 1 If the holder received the bills knowing them to be so issued, creditors of the bank might interfere, just as credi tors may interfere to avoid a fraudulent conveyance. It must be as much against public policy to allow safety fund banks to issue drafts or bills of exchange, as it is to allow an insti- tution under the general banking law to do so ; and yet that privilege will hardly be denied them, although, since the pas- sage of the act to restrict the liability of the safety fund, the public have no more security for payment in one case than they have in the other. If they can issue such paper at all, they may do so to an indefinite amount. If it is said that their charters al- low it, then it may be sai-d to be a legislative expression that it is not against public policy to allow it. The expressions used in the charters and in the general banking law, so far as regards " bills of exchange," are alike ; and although the clause which authorizes the safety fund banks to issue " notes and bills" is not connected with the provision for their security, that being contained in a separate general law, yet it was, no ALBANY, DECEMBER, 1842. 459 Safford t>. Wyckoff. doubt, equally the intention of each system, to provide security for all paper to be issued for circulation as money, and to leave thejpublic and individuals to their own vigilance as regards oth#r dealings with the banks. It is notorious that the object of the general banking law was to do away the necessity and evils of applications to the legislature for charters under the safety fund system ; and as it would of course supersede that system, if the object is car- ried out, there can be but little doubt that the same general privileges, as regards the business of banking, were intended to be conferred by the new system. An act passed in 1835 recognizes the right of safety fund banks to make " drafts." If it was the intention of the legislature to prohibit banks or- ganized under the general banking law from exercising a privi- lege recognized and allowed in other banks and other corpora- tions, though not expressly conferred, or if such paper was considered so great a nuisance, why was it not expressly pro- hibited, as might have been done in five words ? Why were there so many expressions used, from which authority to issue such paper might well be inferred? And particularly, why did not the act of 1840 expressly provide against it, instead of merely providing against what seems to have been considered the only objectionable feature, that of being payable at a future day ? The statutes no where prohibit banking associations from drawing tlrafts or bills of exchange, nor do they any where de- clare such paper void, as is the case with usurious paper and prohibited paper generally. Now it is a well settled principle, that illegality of consideration is no defence against a recovery upon negotiable paper in the hands of a bonaf.de holder, unless the statute \vhh-h makes it illegal also expressly declares thai the note 01 j>ccurity shall be void. See the cares cited in Chitty on Rills, 116, where is quoted the language of Lord Kenyon, that " a contrary determination would shake paper credit to the foundation." The doctrine was adopted by our supreme court in Valldt v. Parker, (6 Wendell, 615,) where Chief Jus- lice Savage says : " It is all important to the commercial world, 460 CASES IN THE COURT OF ERRORS. Safford . Wyckoff. that courts do not go in advance of the legislature in rendering negotiable paper void in the hands of an innocent endorsee. Wherever the statutes declare notes void, they are and must be so, in the hands of every holder ; but where they are adjudged by the court to be so, for failure or the illegality of the consid- eration, they are void only in the hands of the original parties, or those chargeable with notice." Is this, then, a case in which the courts may " go in advance of the legislature in rendering negotiable paper void," or one in which they are called upon to interpose considerations of public policy to the sacrifice of individual rights ? Or rather, did not the circumstances and state of the mischief intended to to be guarded aga'inst, require that the bank should be com- pelled to pay its paper of this description 1 If it was issued for the purpose of putting forth a spurious circulating medium, or otherwise to impose upon the community, and the purpose was so far carried out as that the paper was allowed to be protested and sued, it is more than probable that all the mischief was accom- plished that could well arise, except such as would result from non-payment. Such attempts to impose upon the community have always but a brief success. The fraud is soon known and the mischief arrested, except that greatest of all, arising from non-payment. Then certainly considerations of public policy, if allowed at all, required that payment should be compelled. Had not the evil in this instance had its day, so far at least as regards the issue of the paper 1 Although the draft was issued before, yet the trial did not take place till after the passage of the act of 1840, prescribing penalties which it is presumed were adequate to put an end to the further issue of such paper, so far as regards its objectionable features ; and the only evil that remained to be provided against, was non- payment the gist of the whole. Compel payment, and you not only remedy the evil, but inflict on the wrong-doer the only punishment that perhaps could be inflicted. To declare such paper void, must, instead of preventing, tend rather to encourage and aggravate the evil. It holds out in- ducements to the fraudulent and reckless to enter upon further ALBANY, DECEMBER, 1942. 4(J \ Safford r. Wyckoff. attempts at similar frauds. Under some new and deceptive form, they succeed for a brief time in imposing their trash upon the community, notwithstanding similar issues may have been declared void pocket the fruits of their fraud, and not car- ing to pursue their fraudulent purpose further, or rinding they cannot longer pursue it, gladly embrace the opportunity which the courts would afford them of setting up their own fraud to protect themselves in their unlawful gains. If no penalties hav* been imposed to meet the case, they go free and protect- ed, while the innocent victims of their fraud alone suffer. B'.it it may be said that although the draft in this case is void ana cannot be recovered on, yet the consideration paid for it may be recovered in a suit for that purpose. If so, then the object attempted to be attained by declaring the paper void, is easily defeated by mere circuity of action, or by merely adopting a different form of action. Under the decision of the supreme court in this case, all are deemed parties to the illegality ; conse- quently no recovery can be had by one party against another. A party receiving a void note, with notice, cannot recover the consideration paid for it. (Nellis v. Clark, 20 Wendell, 24.) If the plaintiff cannot recover on the draft in this case, the su- preme court have undoubtedly decided correctly in Smith v. Strong, before referred to, in which, since the decision of the present case, that court have expressly held that the endorsee cannot recover against the endorser of such paper. If then the plaintiff cannot recover in this suit, he is remediless. I am of opinion that institutions organized under the general banking law have, as an incidental power, the right to draw bills of exchange or drafts, in the ordinary form, not having the similitude of circulating bills, for the purpose of trans- ferring their funds in the ordinary and legitimate business of banking. Since the act of 1840, they must be payable on demand, or, which I presume is the same thing, at sight. The provision of that act in this respect does not appear to be re- stricted to bills and notes to be issued for circulation as money, but extends to bills and notes generally. 462 CASES IN THE COURT OF ERRORS. Safford v. Wyckoff. I do not think that the provision of the general banking law, requiring contracts made by such associations, and bills and notes issued for circulation as money, to be signed by the presi- dent or vice president and cashier, was intended to be applica- ble to the drawing or endorsing of bills of exchange or paper of the description proved in this case, not intended for such cir- culation. Or, if it does apply, I am of opinion that it can only be for the benefit of the bank ; and if it waives that formality and pays paper of that description, not so signed, as was admitted to have been its custom, it should be bound by it. But if the general banking law does not confer authority to draw bills of exchange, it does not prohibit it, nor declare paper issued by those banks without authority, void ; and I am of opinion that considerations of public policy do not re- quire courts to declare it void in the hands of a bonafide hol- der, but rather that the banks should be compelled to pay. I am therefore of opinion that the judgment of the supreme court, in this case, should be reversed. BOCKEE, Senator. I have no doubt that the bill of exchange upon which this suit is brought was issued by authority of the association, that its issue was authorized by the general bank- ing law, and that the plaintiff in error ought to recover. The eighteenth section of the act authorizes associations organized under the general bank-law, " to carry on banking business by discounting bills, notes and other evidences of debt ; receiving deposits ; buying and selling gold and silver bullion, foreign coins and bills of exchange ; loaning money on real and per- sonal security ;" and further, " to exercise such incidental pow ers as shall be necessary to carry on such business." Buying and selling bills of exchange is an expressly granted power. It seems to me that the power of drawing bills is fairly inclu- ded in, or at any rate is incidental to the power of buying and selling. In the business of exchange, mutuality is necessity. If a banking association buy bills of exchange, and its funds accumulate at any point, why may it not draw as well as sell ALBANY, DECEMBER, 1842. 453 Saffbrd v. Wyckoff. bills of exchange 1 The drawing is a prerequisite to the sale of a bill j and there is no restriction in the act limiting the as- sociation to the sale of such bills as it may have previously purchased. The drawing of bills of exchange is a usual, ordi- nary branch of the business of banking, without which it could not be conveniently transacted, and which it can hardly be pre- sumed the legislature intended to prohibit. Bills of exchange are instruments essentially different in their nature and uses from the notes and bills contemplated by ihe provisions of the act of 1838, which are to go into circulation as money and con- stitute a part of the currency of the country. The several pro- visions and restrictions applicable to such notes or bills cannot, with any semblance of reason, be applied to bills of exchange. Does any one suppose that bills of exchange are to be made payable at the office or place of business whence they are is- sued ? Equally preposterous is the idea that a bill of exchange issued by a banking company must be secured by a mortgage or deposit of stock with the comptroller, and countersigned by the register. The supreme court seem to apprehend that a re- covery against the defendant in this case would break down all those salutary restraints which the legislature have interposed to guard the public against a spurious currency. Let us ex- amine the merits of this proposition, and enquire whether it can have any other force or effect than to sustain an ungracious defence and cheat the honest citizen out of his rights. If bank- ing associations should issue paper in any form not authorized by the act of 1838, for circulation as money, what follows 1 I suppose the provisions of the restraining act are in full force, and that they would be subject to its penalties. Moreover, every bill or note discounted or security taken by them on such illegal loan or issue, would be void and irrecoverable. These penalties and forfeitures appear to me to be a sufficient guard against the evils anticipated by the supreme court ; and if they are not sufficient, it is the province of the legislature, not of the courts, to provide additional safe-guards. It would not be wise to protect the public against the possible contingency 464 CASES IN THE COURT OF ERRORS. Safford . Wyckoff. of loss, by subjecting them to the certain and immediate loss of the amount of such spurious and illegal circulation. Let it be conceded that the bill in question is liable to the objection of having been loaned and put in circulation as money ; al- though such fact does not appear in the case. Why may not the holder, who it appears has paid a valuable consideration, and is not justly chargeable with any ma/a^/ides, recover on it? It is not made void by the act of 1838, nor by the provisions of the restraining act, (1 R. S. 711,) nor by any other en- actment of the legislature which I have been able to discov- er. The fourth section of the act of 1840 amending " the act to authorize the business of banking," which makes it a misde- meanor to issue any bill or note unless payable on demand, was passed subsequent to the issuing of this bill of exchange and its transfer to the plaintiff in error. That act does not make the notes or bills issued and payable on time void ; and its penal- ties of fine and imprisonment apply, not to the holder of the pa- per, but to the officer or member of the association who illegally issues it. The fifth section of the restraining act makes void" all notes and other securities for the payment of any money, &c. made or given to any such association, institution or company, that shall be formed for the purpose expressed in the first sec- tion of this title, or made or given to secure the payment of any money loaned or discounted by any incorporated company or its officers, contrary to the provisions of the third section of this title." It is not the notes or securities illegally issued by the company which are made void by the act, but those which are given to the company on the loan or issue of notes or other securities of debt to be put in circulation as money. The penalty or forfeiture is properly inflicted upon those who vio- late the law, and not upon the innocent holders of the paper illegally issued. Had the legislature been weak enough to have made these notes and securities void in the hands of the holder, it would have been offering a premium to those who transgressed the law, and inflicting heavy forfeitures upon the ALBAISY, DECEMBER, 1842. 455 Safford o. Wyckoff. innocent and unoffending. It would have been very analogeus to the proceeding of the Irish mob, which sought to ruin a banker to whom they were hostile by burning all his bills in circulation. The decision of the supreme court is founded mainly upon the presumption that bills like the one in question might be used to supply the ordinary circulating medium. It is true, they might be so used, although very inconvenient and inappropriate for such a purpose ; and so might common bank checks in their usual form of negotiability be used for circula- tion as money. If the doctrine of the supreme court be cor- rect, every check drawn \>y the cashier of a company organized under the general banking law is a nullity. I am the bona Jide holder of a check drawn by the cashier of the Merchants' Exchange Bank of this city, upon another bank. The supreme court tell me it is a nullity because it is not made payable at the office whence it issued j it is a nullity because it has not passed the ordeal of the comptroller's office j or perhaps because the bank has not in its vaults, in specie, twelve per cent, of the amount of bills issued. They tell me moreover, that I am a mala jftde holder of paper issued contrary to public policy, not to say contrary to public morals ; that I have not obtained the better security that of mortgages and stock deposited with the comptroller and therefore I shall lose the security which I have, and the bank which issued the illegal paper shall be gamers to the same amount. A decision producing such results cannot easily be reconciled with ordina- ry sound discretion and with the equity of our laws. The de- cision of the supreme court ought to be reversed. Senators DICKINSON, PLAIT and ROOT also delivered written opinions in favor of reversing the judgment of the supreme court j and the PRESIDENT delivered a written opinion in favor of affirming the judgment. On the question being put, " Shall this judgment be re- versed 1" the members of the court voted as follows : VOL. IV. 50 466 CASES IN THE COURT OF ERRORS. Wheeler v. Ryerss. For reversal : Senators BOCKEE, CLARK, DICKINSON, HAW- KINS, HOPKINS, HUNT, NICHOLAS, PECK, PLATT, RHOADES, ROOT, VARNEY and WORKS 13. For affirmance : The PRESIDENT, the CHANCELLOR, and Senators, BARTLIT, FAULKNER, HARD, PAIGE, RUGER, SCOTT and VARIAN 9. WHEELER vs. RYERSS and others. In ejectment, mere evidence of a former recovery against the plaintiff's tenant, and of the defendant's entry under it shortly previous to the commencement of the present action, will not rebut the presumption of title arising from a prior un- interrupted possession by the plaintiff, unless it appear that he had knowledge of the proceedings against the tenant and an opportunity to defend. Semble. Where the defendant insisted at the trial that such former recovery was conclusive so as absolutely to bar the plaintiff, and the circuit judge ruled the contrary ; held that, under a general exception to the decision, the defendant could not raise the question whether the. evidence was sufficient to overcome the presump- tion arising from the plaintiff's prior possession. The case of Whitney v. Wright, (15 Wend. 171,) commented on, and the re- porter's abstract of it corrected. Per WALWORTH, chancellor. ON error from the supreme court, where Ryerss, Baxter and others, now defendants in error, brought ejectment against Wheeler, the plaintiff in error, and recovered judgment. The facts of the case, together with the opinion of the supreme court, are reported in 25 Wend. 437 et seq. A. Warden, for the plaintiff in error. H. Welles, for the defendants in error WALWORTH, Chancellor. The supreme court were right in supposing that the question whether the prima facie right of the plaintiffs in the court below, arising from the prior and ALBANY, DECEMBER, 1&42. 467 Wheeler t>. Ryersa. long continued possession, was not rebutted by a subsequent recovery against the tenant, so as to compel the plaintiffs to produce their paper title, is not raised by the .bill of excep- tions in this case, and was not in fact presented to the consid- eration of the judge upon the trial. The judge did, in sub- stance, charge the jury, as requested by the defendant's counsel, in relation to the recovery against the tenants and their attorn- ment with the assent of Baxter ; and if the jury regarded that charge as it was intended, they must have arrived at the conclusion that the attornment of the tenants was without the consent of Baxter. Whether Baxter was actually apprised of the existence of the suit against the tenants before the trial thereof, does not appear by the case. Neither is it shown that the title, as between Bogert and Baxter, was in fact in contro- versy in that suit, or that it was brought forward on the trial. And 1 think it would be too much to say that a landlord shall lose the benefit of the legal presumption of title in him, arising from a prior uninterrupted possession in himself and those under whom he claims, merely because his tenants, without his knowledge, have been sued and suffered a verdict to pass against them, without giving him an opportunity to come in and defend the suit. If any decisions have gone that length, they have gone beyond the reasons upon which the decision of this court in Jackson v. Rightmyre (16 John. Rep. 314,) was founded. The actual decision of the court in the case of Whit- ney v. Wright^ (15 Wend. 171,) I think does not warrant the language made use of by the reporter in his abstract of that de- cision ; for the opinion of Mr. Justice Bronson in that case connects the recovery of the premises from Porter with the fact of the virtual abandonment by Cleveland of his possession previous to that time, and with his subsequent acquiescence in an adverse possession for thirteen years after the recovery in the ejectment suit, which was in hostility to his prior claim. It is evident from the whole of this case, that the real ques- tion which the defendant's counsel relied upon at the circuit, was the conclusiveness of the former recovery as a flat bar or 468 CASES IN THE COURT OF ERRORS Kempshall v. Burns. estoppel to any subsequent suit by the landlord, although he could now show a perfect paper title to the premises, and upon the attomment of the tenant, -with the alleged assent of Baxter. Upon the question of law, arising upon the statute, the decis- ion of the judge was clearly right ; and the jury have decided against the plaintiff in error upon the question of fact submitted to them at the trial. The judgment of the court below should therefore be af- firmed. BOCKEE, Senator, also delivered an opinion in favor of af- firming the judgment of the supreme court. All the members of the court, twenty three being present, concurring in this result, the judgment pf the supreme court was unanimously AFFIRMED. (a) (a) The case of Rippey and another v. Ryet and others, was decided at the same time, and the judgment of the supreme co Jrt affirmed by the same vote. For a report of the case in the supreme court, see 25 Wend. 432 et seq KEMPSHALL & EGGLESTON vs. BURNS. Where, in an action upon a promissory note by one to whom it had been transfer, red, the payee was called to prove that it was given upon a usurious considera- ion ; held, that he was not bound to testify, though the note was made and lansferrcd prior to the act of May 15th, 1837. ON error from the supreme court. For a report of the case in the court below, see 24 Wend. 360 to 363. The cause was argued here by C. P. Kirkland, for the plaintiffs in error, and W. Tracy, for the defendant in error. ALBANY, DECEMBER, 1842. .}(JC) Kencda T. Gardner. WALWORTH, Chancellor, and FRANKLIN and ROOT, Senators, delivered opinions in favor of affirming the judgment below. The PRESIDENT, and Senators BARTLIT, BOCKEE, CLARK, CORNING, DICKINSON, DIXON, HOPKINS, JOHNSON, NICHOLAS, PAIGE, RHOADES, RUGEH,SCOTT, VARIAN and VARNEY con curred. For reversal : Senators HAWKINS, HUNT, PLATT and WORKS. Judgment affirmed. (a) (a) See S. P. Cloyet v. Thayer, (3 Hill, 564. KENEDA, appellant, vs. GARDNER and GIBBS, respondents. A court of equity will not relieve against a deed of lands on the sole ground that it wae given while the complainant was in possession, claiming adversely to the grantor ; but will leave the former to his remedy at law. Per COWEN, J. The statute declaring void a deed of lands held adversely to the grantor, was meant for the protection of the claimant ; and he may renounce the benefit of it Per COWEN, J. Where the claimant, on being sued in ejectment, gives a cognovit, his subsequent possession cannot be regarded as adverse to the plaintiff; and hence, if the lat- ter, intermediate the cognovit and the entry of judgment, convey to a third per. son, the conveyance will be upheld as valid, though executed while the claimant was still in possession. APPEAL from chancery, where Keneda was complainant and Gardner and Gibbs defendants. The bill was dismissed by the vice-chancellor of the sixth circuit, whose decree was affirmed by the chancellor. The complainant appealed to this court. The facts are sufficiently stated in the opinion of COWEN, J. D. B. Stockholm, for the appellant. Ji. Gibbs, for the respondents. 470 CASES IN THE COURT OF ERRORS. Keneda v. Gardner. Co WEN, J. The bill charges, among other things, that Robert Keneda, the appellant, possessed and claimed a right in about 113 acres of lot No. 94, in Hector, Tompkins county, under a contract by Jacob RadclifF to convey the land ; that such possession and claim of right continued from the year 1816 till 1834 ; that in 1830, in order to perfect his title, the appellant, fearing that Mr. Radcliff's might be invalid, received a conveyance of the same land in fee from Eleanor Horton, who claimed to own the whole of lot 94 ; that Eleanor Hor- ton had previously, in 1824, but while Keneda was in adverse possession, conveyed the same land by a deed in fee to George Gardner, one of the respondents j that this deed was, how- ever, invalid, by reason of a fraud practiced by Gardner upon Eleanor Horton, and because of the appellant's adverse pos- session at the time. On these grounds, among others, the bill prayed that the deed to Gardner might be vacated. The allegation of fraud was denied by the answer, and is not supported by the proof. As to the adverse possession, it seems that, in December 1822, Eleanor Horton sued the ap- pellant in ejectment for the same land, who, in February 1824, gave a cognovit. Her deed to Gardner bears date in October of the year 1824, several months after the cognovit was given, though prior to judgment being entered. Without considering that branch of the defence claimed to arise out of the RadclifF mortgage, and the proceedings with the view to a foreclosure, there is, I think, a fatal answer to the case sought to be made out by the bill on several grounds. 1. The fraud not being proved, the objection that the deed could not avail by reason of adverse possession, belongs exclu- sively to a court of law. 2. If not, all ground for averring an adverse possession was removed by the cognovit. Eleanor Horton sued Keneda in ejectment, and, instead of pleading and going to trial, he con- fessed her title before she conveyed to Gardner. Suppose she had made a mere oral demand of possession from him, asserting her title at the same time, and he had replied admitting that ALBANY, DECEMBER, 1842. 47] Kcncda v. Gardner. she was entitled to the possession ; no pretence would remain for saying that his possession was any longer adverse within the statute against maintenance. Here he has done more. She claimed title, as he knew or was bound to know, for she had brought ejectment. He deliberately confessed her right to the possession, and the confession was afterwards, as he knew it might be, entered of record. It is a solecism to say that his possession was any longer adverse to her. She conveyed to Gardner after the confession. Here was any thing but selling a law suit. The question was at an end ; and she sold a posses- sion which Keneda had virtually agreed in writing she might sell. The statute was meant for his protection. He had a right to renounce such protection. He did so ; and entered into an agreement that the betterments should be appraised and paid for. 3. Again, as remarked by the chancellor, if there was an adverse possession, the grantor was a particeps criminis ; and neither she nor her assignee is entitled to relief. The bill was dismissed by the court of chancery ; and I think correctly. I am for affirming the decree. All the members of the court who heard the argument con- curring in this result, the decree of the chancellor was unani- mously AFFIRMED. 472 CASES IN THE COURT OF ERRORS. Rapelye c. Anderson. RAPELYE, appellant, vs. ANDERSON, respondent. A bond and mortgage for $3000, payable one year from date, with interest to be- come due half yearly, and on which over five months interest had already ac- crued, were assigned absolutely by the holder for $2600, in order to raise money. The assignment stated the consideration paid by the assignee to be $3000, and contained a covenant that thus much was due and owing on the bond and mortgage. At the time of executing the assignment, the assignor also executed to the assignee a bond, with surety, conditioned that the mortgagor should pay the $3000 together with the interest, by the day appointed for that purpose in the securities assigned. On a bill filed by the assignor to set aside the assign- ment and have the bond of guaranty cancelled, held, that the transaction was, on its face, a mere sale of a chose in action, unconnected with a loan, and there- fore not usurious per se. COWEN, J. and RUGER, senator, dissented, being of opinion that the transaction was in effect a usurious loan, and that the complainant was therefore entitled to the relief sought. In an action upon the bond of guaranty, the assignee's recovery would be limited to the actual amount paid for the bond and mortgage, notwithstanding the con- sideration expressed in the assignment. Per FRANKLIN and BOCKEE, senators- Various cases relating to usurious loans made under color of a sale of goods, choses in action &c. cited and commented on. Per COWEN, J. APPEAL from the court of chancery. In May, 1840, Ander- son filed his bill against Rapelye, before the vice-chancellor of the first circuit, for the purpose of setting aside an assignment by the complainant to the defendant of a bond and mortgage executed by John Anderson, and also to have delivered up and cancelled a bond given by the complainant and A. A. Remsen guarantying the payment of the bond and mortgage. The facts of the case, as they appeared upon the pleadings and proofs taken in the cause, were substantially as follows : The complainant held a bond and mortgage against John Anderson for $3000, dated December 8th, 1836, due one year from date, with interest at the rate of seven per cent, per annum, payable half yearly. In June, 1837, the complainant, being in want of money, applied to the defendant to purchase the bond and mortgage, which he agreed to do at a discount of $400 in ALBANY, DECEMBER, 1842 473 Rapt-lye v. Anderson. addition to the interest then due thereon, provided the com- plainant would give a bond signed by himself and his father- in-law (A. A. Remsen) guarantying the payment thereof. These terms were agreed to, and a bond was accordingly given in the penalty of 6000, conditioned that, if the mortgagor paid to the defendant the sum of $3000 and interest on the day the mortgage fell due, the bond should be void ; otherwise to re- main in full force. The assignment was under seal, and con- tained a covenant that $3000 was then due and owing on the bond and mortgage. No more than $2600 was in fact paid by the defendant, though the assignment stated the consideration to be $3000. The complainant claimed to be entitled to the relief asked on the ground that the transaction was usurious j but the assistant vice-chancellor of the first circuit, before whom the cause was originally heard, held otherwise, and dismissed the bill. On appeal to the chancellor, this decision was reversed and a decree made declaring the assignment, and the bond ex- ecuted simultaneously therewith, inoperative and void, and or- dering the same to be delivered up to the complainant and cancelled j whereupon the defendant appealed to this court. For the opinions delivered by the assistant vice-chancellor, and by the chancellor, see 9 Paige, 484 et seq. J. W. Gerard^ for the appellant. S. F. Clarksori) for the respondent. COWEN, J. The appellant purcnased of Robert Anderson a bond and mortgage, made to secure $3000, advancing only $2600 ; and, at the time, took from Anderson and A. A. Remsen a bond of guaranty conditioned that the mortgagor should pay to the appellant the $3000, with the interest due on the mortgage. The chancellor held the transaction to be usurious, and, I am of opinion, rightly. The appellant, in effect, took a contract and security for the repayment of more than $400 beyond the sum which he ad- vanced, whereas he was entitled to that sum only, with interest VOL. IV. 60 474 CASES IN THE COURT OF ERRORS. Rapelye t>. Anderson. upon it at the rate of seven pejr cent, per annum for the time during which he should be obliged to wait for reimbursement. There is no rule of construction by which the bond of guar- anty can be said to import less than an obligation for the pay- ment of the whole sum due upon the mortgage. This case seems to me within the very words of the stat- ute of usury. That statute declares that no person shall direct- ly or indirectly take or receive in money, goods or things in action, or in any other way, any greater sum or greater value for the loan or forbearance of any money, &c. than at the rate of seven per cent, per annum j and that all contracts or secu- rities for more than that rate shall be void. (1 R. S. 760, 2d ed.) Had the legislature intended to anticipate and condemn the precise transaction in question, they could scarcely have done so in plainer words, without naming the parties. It is said, here is the purchase of a chose in action, which is not usury. But there is more ; not only a purchase, but secu- rity for the reimbursement of the purchase money, taken from the man to whom it is advanced. A surety is also required to join with him. The naked purchase of a chose in action is lawful ] but a usurious transaction cannot be legitimated be- cause a purchase happens to be associated with it. A man buys a horse, advancing one hundred dollars as the price, at the same time taking security that his money shall be repaid with more than lawful interest j and because he takes the horse as a purchaser, he claims to hold the same relation to the other branch of the transaction. This is the length of the argument. But it is said there was not any loan by the appellant. There was an advance by him of $2600, and security taken for the re- payment of that sum with more than $400 besides. What is a loan within the meaning of the statute of usury ? An advance of money upon a contract that it shall be returned in gene're is clearly so. (Ord on Usury, 25 ; and see Byrne v. Kennifeck, Batty's Rep. 269; Fereday v. Wightwick, 1 Taml. 250.) That the lender chooses to call it by another name, does not ALBANY, DECEMBER, 1842. 475 Rapclye o. Anderson. change its nature. The result of the contract being a loan and an excess of compensation, no disguise, either by \vords or the form of the transaction, can change its character. " We must," says Lord Mansfield, " get at the real nature and substance of the transaction ; and where the real transaction is a loan of money, the wit of man cannot find a shift to take it out of the statute." (Floyer v. Edwards, Cowp. 114.) In Low v. Wal- ler, (2 Dougl. 739 ? ). he said : " Experience taught the legisla- ture, in more mode&sHimes, hot to particularize specific modes of usury, because that only led to evasion j but to enact, gen- erally, that no shift should enable a man to take more than the l^gal interest upon a loan. Therefore the only question in all Ci'.ses like the present is, what is the real substance of the trans- action, not what is the color and form." In that case, a man wanting to obtain money, was induced to buy goods worth only 120/., en his bill of 200/. It professed to be a mere purchase and sale of goods at their full value. Yet Lord Mansfield said, " it was impossible to wink so hard as not to see that there was no idea between the parties of any thing but a loan of mo- ney." Any contrivance by which more than seven per cent, is obtained as a compensation of forbearance on an advance of money, is a fraud upon the statute. It is usury in itself, by reason of the effect. The lender will not be permitted to argue that it may possibly be innocent. He may, to be sure, show that the obtaining more than a due rate arose, in fact, from some mistake in the frame of the contract, or the like ; but it lies with him to no so. Without such an explanation, the law looks to the act and result only. The rule is, as laid down by Lord Tenlerden, C. J. : " Every man must be presumed to in- tend the natural and ordinary consequences of his own act." (Hairc v. Wilson, 9 Barn. $ Cress. 643.) In the language of Golden, senator, " We must interpret acts by their consequen- ces^ and must presume persons intended to produce the effects which naturally flow from their acts." (Mackic v. Cairns, 5 Cowen, 573.) The severity with which the rule is applied in cases of usury, may be seen by the JVeio-For/c Firemen's Inf. 476 CASES IN THE COURT OF ERRORS. Rapclye v. Anderson. Co. v. Ely, (2 Cowen, 678, 705,) and The Bank of Utica v. Wager, (id. 712, 769.) The rule of these cases was affirmed by this court. (8 Cowen, 398.) The interest was there taken by way of discount on the purchase of notes by a bank. The bank calculated the discount by a rule which gave them but a trifle more than seven per cent. Yet, as they were aware that the transaction would produce this trifle, their acts were re- ceived as^conclusive evidence of a usurious agreement. The court held they could not escape this inference, except by showing that the result arose from a mistake of fact. (See 2 Cowen, 705.) On the effect of selling a debt for less than its face, and guarantying its payment, no two men can disagree, for it is shown by mere computation. The substance of the transaction is thus stated by Pothier : " If I sell you for 900 livres, a debt of 1000, which I engage to pay myself if the debtor does not, it evidently is the same thing as if you lend me 900 livres upon my engagement to return you 1000 at the end of a certain time." And he pronounces this to be usurious. (Poth. Trait, du Contr. de Vente, Tome 2, pt. 6, ch. 4, art. 6, 1.) Trans- actions like this have repeatedly been held usurious in England. (Massa v. Dauling, 2 Str. 1243 ; Lowes v. Mazzaredo, 1 Stark. Rep. 385 ; The King v. Ridge, 4 Price, 50 ; Chapman v. Black, 2 Barn. & Jlld. 588.) In the last two cases the matter was deemed too plainly usurious to require that the question should be left to the jury. A sale out and out of the choses in action was pretended ; but the pretext was held so unfounded as not to admit of doubt. No decision any where will be found to go the length now contended for by the ap- pellant's counsel ; but many may be found against it. The case of Riiffin v. Armstrong, in North Carolina, (2 Hawks' Rep. 411,) is a direct authority for declaring the transaction in question usurious, even though the respondent alone had guar- antied the payment. There the plaintiff purchased a bond of the defendant at a discount of more than the legal rate of inter- ALBANY, DECEMBER, 1842. 477 Rapelye c. Anderson est, the defendant endorsing the bond in a form which bound him to guaranty the payment of the whole money due upon it. Taylor, Ch. J. said : " The character and substance of this transaction bespeak it to be a loan of money, although the par- ties constantly speak of a sale, and not a whisper is heard rela- tive to a loan." He further said, if it had been a sale in truth, the assignor would have had nothing to do but receive the price, and leave the assignee to obtain the money as he could from the obligors. The money was to be raised for the assig- nor's benefit, and " if he had meditated a sale of the bond, he would undoubtedly have withheld his endorsement. But by adding that to the bond, he undertook on his part to repay the money which should be raised on it in the event of the obli- gor's delinquency. This appears to me to be the unequivocal characteristic of a loan, that the money is in all events to be re- paid with interest by the borrower himself, or cut of his funds." He added, that a sale of the bond would have been on the sole credit of the obligors. All that is here said applies, mutatis mutandis, to the case before us. Had there been a mere sale of this bond and mortgage, the appellant would have been left to his remedy on the securities purchased, in which case it is not denied that the $400 might have been thrown off. The securities might have been of a doubtful character. But the appellant determined, over and above the security afforded him by the sale, to exact the guaranty both of the borrower and his friend, that, at all events, $3000 should be paid him for $2600. Suppose the appellant had advanced the 2600, and merely taken the bond of the respondent and his friend for $3000 ; no one would doubt of the transaction being usurious. This has been done. Is it then the less usurious because the appellant exacted' another bond and a mortgage besides ? If the true argument be that usury is lost in the greatness or stringency of the security, then indeed has the appellant been wronged by the chancellor. But Shylock has been much more wronged by the public estima- tion. If gommon sense, however, be the same both in North Carolina and New-York, no injustice has been done to either. 478 CASES IN THE COURT OF ERRORS. Rapelye v. Anderson. There is sometimes a boldness in urging usurious devices upon courts of justice, which would seeia to assume that, for the sake of giving them effect, the ordinary rules of legal dis- crimination are to be disregarded. By some indirection a man obtains more than seven per cent, per annum for the use of his money, or a security for more. Although in fact he has prac- ticed that very extortion against his neighbor which the statute declares he shall not do directly nor indirectly, he qualifies the transaction by such definitions or pretexts as he imagines are out of the words of the statute. He then seems to expect that these should be adopted in the office of legal construction ; that the very words of the statute of usury, and the spirit of every law which sedulously guards against all evasion, should be forgotten, or that courts should wink as hard in order to protect the usurer as he himself did in the commission of the offence. An argument often urged is, that the statute is con- trary to the rules of political economy. The code of McCul- loch and Jeremy Bentham is invoked as of paramount author- ity. The customs of trade are adduced as another ground ; nor can it be said that the course even of judicial authority has always proceeded entirely without the influence of such consid- erations. At a very early period interest was allowed to be taken in advance, in the name of discount. It was said that, if not allowed, every banker in London would be held guilty of usu- ry. Some courts have allowed a factor to take more than le- gal interest on his advances, calling the excess by the name of commission. Men have been allowed to lend their paper on commissions which, though nominally limited to the legal rate of interest, yet this being also allowed to increase in proportion to the time the paper had to run, might amount to enormous usury. Nor has this court itself, perhaps, been entirely free from such inadvertencies. In Cram v. Hendricks, (7 Wend. 569,) it was held that a man might lend money, and take secu- rity of the borrower for one per cent, a month. Cram, want- ing to raise money, applied by his agent to Hendricks. He discounted a note held by Cram, taking the one per cent, in ad ALBANY, DECEMBER, 1842. 479 Rapelyo r. Anderson. vance. The borrower endorsed the note in blank, thus secur- ing the principal sum both by his own name and that of the maker. For the one per cent., the note was available against the maker only. This court pronounced the transaction to be a sale of the note out and out, not a lean, and sustained an ac- tion against the endorser. In the course of the discussion, the policy of all laws against usury was very seriously questioned. It was going n great way to declare such a transaction as that a mere purchase. The defendant obtained an advance of money, and provided for its repayment with one per cent, per month for a certain time. In effect he secured the payment of usurious interest j and I am not aware of any other case going to sustain such a transaction, except Mazuzan v. Mead, (21 Wend. 285.) This adds no sanction to the principle of Cram v. Hendricks. The supreme court ruled the same way as this court did on what were believed to be equivalent cir- cumstances, but on the express authority of a court having power to review the decision. I claim to understand the views of the justices of the supreme court too well to suppose them in favor of extending the principle cf Cram v. Hendricks be- yond its exact circumstances, comprehending the sale of nego- tiable paper valid in its concoction. The case now before us is plainly distinguishable from Cram v. Hendricks, and the disposition which the chancellor has made of it is ably sustained by the argument of the su- preme court of Kentucky, relied upon by him. (Yankey v. Lock/tear t, 4 J. J. Marsh. 276.) The case is, moreover, ex- actly in point. It is suggested that Cram v. Hendricks has been understood in practice as extending to the discount of all kinds of paper valid in its inception, whether negotiable or not ; and that farge investments have been made upon that construction. The argument claims too much. If the fact be as supposed, which it is impossible for us to know judicially, the principle upon which practical constructions like the one urged upon us are known to proceed, can scarcely commend them as instances to 480 CASES IN THE COURT OF ERRORS. Rapelyo . Anderson. be safely consulted by courts of justice. The avarice of usur- ers has always been astute in extending their line of discount. Shortly after it was held thai interest might be taken in ad- Tance on discounting a bill or note, the practice was extended to paper which had a long time to run ; and it was found that the decisions, unless they were limited, would open the door to most oppressive usury. The courts, therefore, corrected the general language in which the earlier judgments had been an- nounced, by confining them to ordinary business paper. It was indeed found that, without such a restriction, the usurer might, in the name of discount, absorb not only the interest but the principal of the loan, to an amount in all cases commensurate with the cupidity of the lender and the wants of the borrower. (Com. on Usury j 87 to 94.) It would, no doubt, have been much more in conformity with the spirit of the statute, had the courts held that in no case could a sum exceeding lawful interest be received by way of discount. The very practices now urged furnish the best ar- gument against their validity. Every law should be so con- strued as to prevent its evasion ; a rule which the statute of usury carries upon its face. The reason why such an admoni- tion was inserted is to be found in the history of the statute. At every step of that history, both the legislature and the courts were met by the protean devices of avarice, constant- ly moving with its hundred fangs through every region of society; obdurate, powerful, fruitful in expedients, watching its prey " with an eye that never winked," and pouncing upon it as " with a wing that never tired." The legislature was baffled in the effort even to catalogue the mischiefs of such a progress. It finally grouped them under the name of " le- gion," and confided the pursuit and punishment of the whole category to the general administrators of the law. It is unfor- tunate that, even a.mong them, individual instances plainly be- longing to the obnoxious class have sometimes been mis taken for members of an innocent species. , Such mistakes en- courage usurious practices in a two-fold way ; first, by de- ALBANY, DECEMBER, 1842. Rapelyc t. Anderson. trading from their moral odium, and secondly, by inducing a hope that legal impunity may be secured under colorings and distinctions, no matter how bungling and even puerile. 1 for- bear to discuss the policy of the usury law, as judges have oc- casionally done. The law is found in the statute book. If its credit in the eyt of political economy were as far depreciated as the sumptuary laws of feudal Europe, even that would fur- nish no argument against enforcing a subsisting law according to the spirit and intent of its framers. , Courts may, indeed, by a narrow and illiberal course of ad- judication, by a fear of affixing proper names, or by referring things to the jury box which should be dealt with as questions of law, render the statute in question or any other statute weak and inefficient. This is the too common fate of laws made for the suppression not only of usury but of fraud. No relief from individual hardship afforded by such courses, can compensate for the disgrace which they bring upon the general administration of the law ; and it would be better if the few cases which give them countenance were at once overruled. On the whole, I am entirely satisfied with the disposition which the chancellor has made of this case, and hope his de- cree will be affirmed. FRANKLIN, Senator. George Rapelye, the appellant, re- ceived of Robert Anderson an assignment of a bond and mort- gage made by John Anderson to the respondent, and given to secure the sum of three thousand dollars with interest j for which the appellant paid and advanced the sum of twenty-six hundred dollars, and at the same time took from the respondent a collateral bond executed by himself and Abraham A. Remsen in the penalty of six thousand dollars, with a condition that, in case the mortgagor should pay the amount secured by.the bond and mortgage with interest, the same should be void, other- wise to remain in full force and virtue. Upon this statement of facts, a bill was filed in the court of chancery before the vice chancellor of the first circuit, to set aside the assignment and VOL. IV. 61 482 CASES IN THE COURT OF ERRORS. Rapelye v Anderson. compel the appellant to give up the collateral bond of Ander- son and Remsen, upon the ground that the transaction was in violation of the statute to prevent usury, and consequently void. The cause was heard before Assistant Vice- Chancellor Hoffman, who dismissed the bill, and, upon appeal to the chan- cellor, his decision was reversed j and hence the present ques- tion. The principle is well settled, that if a person loan money at a higher rate of interest than seven per cent, per annum, the transaction is usurious and void. But to my mind there is a clear and palpable distinction between the purchase of a chose in action, legal in its inception, and the loaning of money ; and that the principles of law which govern and control the former, are not applicable to and have no binding effect upon the latter. This distinction has been recognized in many in- stances in our own courts, and appears now to be the well settled and established law of the land. In the early case of Brown v. Matt, (7 John. R. 361,) it was said that, if the plain- tiff had purchased the note at a price less than its nominal value, he could not have recovered from his immediate endorser more than the amount he actually paid for the same. It is true that, in the case cited, the question of usury was not directly in issue, and consequently the observation was accidental : but it nevertheless shows the opinion of the court as fully as it would have done had the remark been made upon a plea of usury. A similar doctrine was held in the case of Braman v. HCSS, (13 John. R. 52,) in which. the court said that, where, on the en- dorsement of a note, the consideration passing between the en- dorsee and the endorser is less than the amount of the note, the endorsee, in an action against the endorser, can recover no more than the consideration he has actually paid. Again, in the case <3f Munn v. The Commission Company r , (15 John. R. 44-,) where the note was valid as between the original parties, BO that an action could be maintained upon it, it was held to be valid also in the hands of an endorsee who had discounted it at a higher rate of interest than seven per cent, per annum, and that ALBANY, DECEMBER, 1842. 433 Rapelye t. Anderson. he might recover the whole amount against the maker ; but that, as against the endorser, no more could be recovered than the amount actually paid. In the case of Powell v. Waters, (8 Cowen, 669,) the late Chancellor Jones, in delivering the opinion of this court, remarked : " A note which has been negotiated by the maker, and might, if at maturity, be enforced against him by the holder, may be sold at a greater discount than the rate of seven per cent, per annum. But the note must be per- fect and available to the holder, to make it saleable by him. The test is, the right to maintain an action upon it against the parties, if it was then due." And the late Senator Golden ob- served in the same case, that a note or security originally given for a legal consideration, could not afterwards become usurious, at whatever rate it might have been purchased or discounted. Now it is not contended that, as between the mortgagor and mortgagee in the case under consideration, there was anything which would have prevented the latter from sustaining an ac- tion upon the bond, or from selling the mortgaged premises. The bond and mortgage were not tainted with fraud or usury, but were valid and legal contracts which could be enforced. In the case of Cram v. Hendricks, (7 Wend. R. 569,) re- cently decided by this court, and to which reference was so often made in the course of the argument, it was held, after mature and serious deliberation, most of the cases a bearing upon this point having been collected with great care, that discounting a business note at a rate of interest greater than seven per cent, per annum, was not a usurious transaction ; that a note valid in its inception might be bought and sold as a chattel at its real or supposed value ; that the transfer by the payee of a valid, available note, upon which he might maintain an action against the maker and which he parts with beyond the legal rate of interest, is not usurious, although the payee on such transfer endorses the note j and that, on non- payment by the maker, the endorsee might maintain an action against the endorser. The case of Rice v. Mather, (3 Wend. R. 62,) recognizes the same doctrine. That was an action brought 484 CASES IN THE COURT OF ERRORS. Rapelye . Anderson. to recover the sum of $948,50, being the amount due upon a promissory note drawn by E. Mather & Co. in favor of and endorsed by Keeler & Mather, and discounted by the plaintiff at the rate of one per cent, a month. The defence set up was usury ; but the court held that, according to its uniform decis- ions, this clearly was not a usurious transaction j that the note was an available instrument in the hands - of the original payee ; that there was no usury in its origin, and therefore the purchase or discount of it at a sum less than its face, did not taint the note with usury. The same (loctrine which is applicable to promissory notes and bills of exchange, and which governs and controls actions brought upon them, must, I apprehend, govern and control the judgment of the court in the case ndw under review. Was this transaction then an absolute sale within the legal construc- tion of the term, or was it a loan of money under the form and character of a sale, merely for the purpose of avoiding the statute against usury, and to be governed by the principles of law applicable to cases of loans 1 Or, to use the language of Sen- ator Beardsley, in the case of Cram v. Hendricksj " what is the real substance of the transaction 1 not what is its color anrl form ; was it a loan, and the intent of the parties to cover usu- ry, or was it an absolute, bonafide sale T' The component parts of a loan are a voucher or contract specifying the nature of the transaction, the time of payment or redemp- tion, the rate of interest for the use of the money loaned, and the intention of one to loan arid the other to borrow. Nothing ap- pears upon the pleadings in this cause which establishes any such transaction or intention between the contracting parties j but upon the contrary, the assignment purports to be a bargain and sale of the bond and mortgage of John Anderson to the appellant George Rapelye. No time of redemption is specified, nor rate of interest which is to be paid and received for the money advanced, but it is a simple transfer from one person to another in the ordinary and usual way of disposing of bonds and mortgages. It is true, the bill of the respondent ALBANY, DECEMBER, 1842. 43$ Rapelyc c. Anderson. charges that it was a loan of money and not a bona fide sale j but the answer of the appellant repudiates the idea of a loan, and denies absolutely and unequivocally that he did loan or agree to loan to the complainant any sum of money whatever for which the complainant gave to the de- fendant the bond and mortgage of John Anderson and wife and the collateral bond of Robert Anderson and Abraham A. Remsen as security for the repayment of the same by the said Robert Anderson ; but alleges that the said bond and mort- gage of John Anderson and wife were purchased by him in good faith, and so sold and assigned to him in consideration of the sum of $2600, which he actually paid and advanced for the same. But he admits that the deed poll of assignment con- tained a covenant by the complainant that there was then due and owing upon the said bond and mortgage the sum of $3000. There is no testimony in the case which supports the allegation in the bill, or which goes to show that there was any negotiation or agreement between the parties except for a sale of the bond and mortgage. Upon the contrary, one witness swears that the object of Mr. Anderson's calling upon Mr. Rapelye was to negotiate the sale of the bond and mort- gage, and that the subject of conversation between them was in reference to such sale ; and, although he was present at several interviews between them, he never heard any thing said in re- lation to a loan. But it is contended that this ought to be considered as a loan, in consequence of a collateral bond having been given and re- ceived to secure the ultimate payment of the sum of $3000 and interest for which the original bond and mortgage were given, and for which only $2600 had been paid by the appel- lant. But I am unable to distinguish this case from that of Cram v. Hendricks, or from the still stronger one of Mczuzan v. Mead, (21 Wend. 285,) in which a note of $210 was sold for $200, being a greater discount than legal interest, and the seller guarantied, in express terms, to pay not only the $200 and interest, but the amount payable by the face of the 486 CASES IN THE COURT OF ERRORS. Rapelye v. Anderson. note. Mr. Justice Cow en, in delivering the opinion of the cour* in that case said, "a usurious intent is not to be inferred, inasmuch as the plaintiff cannot in legal effect recover and does not in truth seek to recover more than he advanced, with the legal interest. If such were the express agreement at the time, it would clearly take away the sting of usury ; and if that appear upon the face of the declaration to be but the legal effect of tke guaranty, then the case is the same. Had the defendant simply endorsed the note, leaving himself to be charged in the usual way, by demand and notice, the transaction would not have been usurious." If the condition of the bond of guaranty of Anderson and Remsen had been, that in case John Anderson, the original obligor, did not pay the sum of $3000 and interest secured by his bond and mortgage, that then and in that case they would, it would have presented no stronger case than the endorsement of Cram on the note of Hendricks, or the guaranty mentioned in the case of Mazuzan v. Mead. The condition of this bond, how- ever, is, not that Anderson and Remsen would pay the sum of $3000 and interest if the obligor John Anderson did not, but that if he did pay that amount, then the bond was to be void, other- wise to remain in full force and virtue : so that upon the prin- ciple laid down and decided in the case of Cram v. Hendricks and Mazuzan v. Mead, the amount which could be collected by Rapelye would have been, not the consideration expressed in the assignment, or the amount for which the bond and mort- gage of John Anderson were given, but the actual sum receiv- ed from Rapelye, being $2600, together with the interest whicl might have accrued thereon from the time of the actual receip thereof. The consideration of $3000 being expressed in the assign- ment, cannot alter the legal construction of this collateral bond of guaranty ; for the question of usury cannot depend upon the ease or difficulty of proving the transaction. The facts render it usurious or not. The difficulty or ease with which those facts can be substantiated or proved does not and ought not to enter ALBANY, DECEMJJEK, l. 437 Rapelye v. Andereon. Into the question. The true consideration could always be ex- plained by parol testimony j for, as I understand the law, it is a well settled and established rule, that although parol evidence cannot be admitted to contradict, add to or vary the terms of a will, deed or other instrument in writing, yet it will be receiv- ed to establish another consideration consistent with the nature of the consideration contained in the deed or instrument. For instance : in the case of a deed purporting to convey property in consideration of money paid, although it would not be ad- missible to prove that a marriage contract, and not the money, was the inducement or consideration for the conveyance, be- cause that would contradict the deed ; yet it would be admissi- ble to prove that a moneyed consideration, greater or less than that contained in the deed, was given for the same. This prin- ciple is clearly established in the case of Betts v. The Union Bank of Maryland, (1 Harris fy GiWs Reports, 175,) and, in our own courts, in the cases of Bowen v. Bell, (20 John. Rep. 338,) and Whitbeck v. Whitbeck, (9 Cowen, 266.) The principle involved in this case is an exceedingly impor- tant one, affecting, as it does, property to an immense amount , for transactions similar to this are of almost every day's occur- rence, in which bonds and mortgages are purchased for a sum less than that for which they were originally given, and trans- ferred from one party to another by assignments containing covenants of guaranty, and in very many instances with collate- ral bonds similar to the one now under consideration. Such con- tracts, however, cannot in my opinion be construed into loans of money to be adjudged void on the ground of usury under the de- cisions to which I have referred, but, according to the spirit and true construction of those cases, must be sanctioned and upheld. I am therefore of the opinion that the assistant vice-chancel- lor was clearly justified in the decree which he made, and that the decision of the chancellor should be reversed. BOCKEE, Senator. The complainant charges in his bill, that the mortgage against John Anderson was assigned to secure 488 CASES IN THE COURT OF ERRORS. Rapelye v. Anderson. the repayment of a corrupt and usurious loan made by the ap- pellant to him. The answer of the appellant denies all usury, and none is proved, unless it appears on the face of the assign- ment and bond. The assignment purports, in consideration of the sum of $3000, to assign and transfer a bond and mortgage against John Anderson, with a covenant that there was due on said bond and mortgage the sum of $3000. The actual con- sideration paid en the assignment, as appears by the testimony of Remsen and the answer of Rapelye, was $2600. So far there is obviously no taint of usury in the transaction'. If the appel- lant collected his money of the mortgagor, he made a good bar- gain ; and he might lose the whole of it, by reason of prior in- cumbrances on the mortgaged premises or insufficiency of value, and could have no recourse to Robert Anderson on the covenant in his assignment. But the appellant goes further, and takes from Robert Anderson a bond in the penal sum of $6000, with surety, conditioned that if the mortgagor, John Anderson, should pay the sum of $3000 according to the condition of said mort- gage, then the obligation to be void, otherwise to remain in full force. The bond and the assignment are no doubt to be taken together as parts of one transaction, and if there is usury in either, both are vitiated. It is obvious that the arrangement between these parties might be a contrivance to cover a usu- rious loan. Even a sale of goods may be usurious, as was adjudged by Lord Mansfield in the case of Lowe v. . Waller, (2 Douglass, 735,) where the circumstances clearly showed the intention of the parties to cover a usurious loan under the dis- guise of a sale of goods. The application in that case was for a loan of money, and negotiations for such loan being continued for some length of time, were closed by a sale of goods at a great advance above their value. It was found by the verdict of a jury that the bill given on such sale was usurious, and the verdict was sustained by the court. The true and only point in this case is, whether the ar- rangement between these parties was a device to cover a usurious loan. Unconnected with a loan of money or usu- rious agreement, I suppose any person may buy or sell ALBANY, DECEMBER, 1842. 4Q9 Rapclye r. And without violating the statute of usury. He may relieve his necessities by buying dear or selling cheap, and the person with whom he deals will not be punishable for usury. In this case there is no evidence of any agreement between these parties respecting a loan of money. There was no application to bor- row, and no offer to lend. There are no circumstances that I can discover in the evidence in the cause, to show the transac- tion between these parties usurious, unless the bond of guaranty above recited makes it so. Suppose that John Anderson, the mortgagor, had paid to Rapelye the $3000, with interest, accord- ing to the condition of his bond ; from the facts disclosed in this case, would he not be entitled to retain the money as the purchaser and assignee of the bond and mortgage 1 I think an action would not lie in favor of Robert Anderson to recover any part of the mortgage money thus paid. Viewing the case in this aspect, I should hesitate in pronouncing it a case of usury. It seems to be marked and identified -as a sale of a mortgage secu- rity, not as a loan of money. The guaranty above mentioned is, that the mortgagor, John Anderson, shall pay the 83000. It is not in the alternative that the obligors shall pay that sum. If John Anderson does not pay, the obligors are left merely on the ground of their legal liability. The judgment is entered for the sum of $6000, and the court may direct by endorse- ment on the execution a collection of the sum equitably due, or, on assessment of damages by a jury, they may award the sum actually paid on the assignment and sale of the rfortgage. It may be admitted that, prima facie , the rule of damages would be the sum of $3000, the consideration mentioned in the assign- ment. So it was in the case of Cram v. Hendricks. Grain stood on the ground of legal liability as general endorser of a promissory note, and the rule of damages against him was, prima facie, the amount of the note. The court, by limiting the amount of the recovery to the actual consideration of the en- dorsement, refused to give a construction which would render the contract usurious. It cannot be maintained that there is any difference, as regards this question of usury, between the VOL. IV. 62 490 CASES IN THE COURT OF ERRORS. Rapelye v. Anderson. negotiation of bills and notes, and other securities. The case of Cram v. Hendricks, decided in this court, is binding and authoritative, and I cannot discover a hair's breadth of differ- ence between that case and the present. The case of Yankey v. Lockheart 4> Burton^ cited by the chancellor from the court of appeals in Kentucky, is certainly in direct conflict with the case of Mazuzan v. Mead, decided by the supreme court. In both these cases the consideration was truly stated in the assign- ment, and was less than the amount of money due. In both cases the agreement on the part of the vendor was expressly to pay, not the amount of the consideration of the assignment, but the amount of the note or security transferred. It appears to me that human ingenuity can point out no difference in prin- ciple between the facts of the two cases j but the decisions are variant. The chancellor seems to have placed an undue reli- ance on the decision in the case of Yankey v. Lockheart fy Bur- tonj which I hold to be of no authority. I cannot think it en- titled to any weight, either by way of argument or authority, when it stands the open and direct antagonist of the decisions of our own courts. My opinion is, that the chancellor's decree should be reversed and the complainant's bill dismissed. RUGER, Senator. It is quite certain from all the circum- stances, that it was the intention of Rapelye to secure to him- self a premium of more than $500 for the use of $2600 for the short perfod of a little over five months. The whole trans- action, to my mind, savors of an intent to accomplish indirect- ly what the law would not allow to be done directly. The transaction has very little of the character or semblance of a sale about it. A fraudulent intent to evade the law against usury may be inferred from the insertion of a false considera- tion in the assignment. At least, a party must be held to in- tend the necessary effect of his own deliberate acts ; and the necessary effect of this transaction, if allowed, will be to enable Rapelye to realize a usurious rate of interest for the use of his money. ALBANY, DECEMBER, 1842. 491 Rapcljo r. Andereon. The lawful interest on the money advanced by Rapelye would have been about eighty-two dollars j but, by contrivance, he secured an interest or premium of over five hundred dol- lars. And how has he done it ? Not directly, by taking the obligation of Robert Anderson to pay him that interest or pre- mium ; but indirectly^ by taking the bond of Robert Anderson and A. A. Remsen, conditioned that the interest or premium shall be paid him by John Anderson, a third person. Should this mode of getting round a statute meet with favor in our courts, it would immediately be adopted as a precedent by those who wish to evade all laws against usury. In iny opinion the decree of the chancellor should be af- firmed. ROOT, senator, delivered a written opinion, and FOSTER, sen- ator, an oral opinion, in favor of affirming the chancellor's de- cree. PAIGE and PLATT, senators, delivered oral opinions for re- versal. On the question being put, " Shall this decree be reversed 7" the members of the court voted as follows : For affirmance : Co WEN, J., and Senators BARTLIT, CLARK, DIXON, ELY, FOSTER, ROOT, RUGER, SCOTT, VARJAN and VAR- NEY 11. For reversal : The PRESIDENT, and Senators EOCKEE, DICK- INSON, FAULKNER, FRANKLIN, HOPKINS, HUNT, NICHOLAS, PAIGE, PLATT, RHOADES and WORKS 12. Decree reversed. (o) (a) See Suydam v. WettfaU, (ante, p. 211,) Ketchum v. Barber, (ante, p. 224, nd Seymour and other* v. Strong, (ante, p. 255.) 492 CASES IN THE COURT OF ERRORS. Bogert v. Hertcll. BOGERT, appellant^ vs. HERTELL and others, respondents. D. t by his will, gave the rents and profits of two-thirds of his real estate to his daughters for life, the fee to their issue ; and the fee of the other third to his grandsons, to take at twenty -one, with the benefit of the income by way of mainte- nance during their minority. The will then provided as follows : " For the more easy and equal division of my estate, I do hereby fully authorize and empower my executors hereinafter named, whenever they shall think it expedient, to sell and dispose of all or any part of my real estate for the most moneys that can be gotten for the same" &c. In pursuance of this authority, the two acting execu- tors sold certain lots of land, parcel of D.'s estate, and took back a bond and mortgage in their joint names as executors for a portion of the purchase money. Afterwards, and prior to the fund being wanted for distribution, one of the ex- ecutors sold and assigned the bond and mortgage to B., misapplied the proceeds and failed. Held, that though the other executor did not unite in or assent to the assignment, B. acquired a valid title to the bond and mortgage, he having purchased in good faith. Where land is directed by a will to be sold and converted into money, though for a particular and specified purpose, and not absolutely or " out and out," the es- tate is regarded in equity, to the extent and for the purpose designated, as money, and not land. Per NELSON, Ch. J. If the purpose for which the conversion was directed fail altogether, or in part, the entire estate in the one case, and the part in the other, is regarded as undisposed of by the will, and so goes to the heir at law. Per NELSON, Ch. J. In the case of a partial failure, however, if the purposes of the will still require that the conversion should take place, the part hi respect to which the failure has oc- curred goes to the heir as money, and not as land. Per NELSON, Ch. J. After a sale and conversion, no failure of the purposes of the trust having occurred, the executors take the entire proceeds as a part of the personal assets of the es- tate. Per NELSON, Ch. J. and BOCKEE, Senator. Various cases relating to the doctrine of equitable conversion, cited and comment- ed on. Per NELSON, Ch. J. Where a will contains a power to sell land for the purpose of distribution, of pay- ing debts &c., without naming the donee of the power, it will vest in the execu- tor by implication. Per NELSON, Ch. J. In general, ie of two or more executors may make a valid sale of the personal assets of the estate, without the others uniting in the act of transfer. Per NET. BO.\, Ch. J. This rule applies as well to notes and other securities given to executors as such, after the death of their testator, as to those given to him in his life time, pro- vided the money, when recovered, would be assets. Per NELSON, Ch. J., and BOCKEE, Senator. ALBANY, DECEMBER, 1842. 493 Bogctt v. Hcrtcll. Tho case of Smith v. Whiting, (9 Matt. Rep. 334,> commented on and over, ruled. Suits at law may be maintained by executors or administrators as such, on prom* issory notes &c. made to them in their representative capacity, where the fund sought to be recovered will be assets : and counts on such notes may, it seemt, be joined with counts on promises to the testator or intestate. Per NELSOW, Ch.J. APPEAL from chancery, where the respondents were com- plainants, and the appellant and others were defendants. For the leading facts of the case, together with the opinions of the chancellor and vice-chancellor, see 9 Paige, 52 et seq., and 3 Edw. Ch. Rep. 20, et seq. The will of John Dover being im- portant to a proper understanding of the principal question, a more full statement of it than that contained in 9 Paige, is here given. After making certain provisions for the wife of Dover, which were declared to be in lieu of dower, the will proceeded as follows : " Item. I give and bequeath unto my daughter Anna, (wife of Stephen Stevens,) during the term of her natu- ral life, the rents, issues and profits of one equal undivided third part of all the rest, residue and remainder of my estate, both real and personal, to be paid to her in half-yearly payments &c. ; and after the decease of my said daughter, I do give, devise and bequeath the said one equal undivided third part of all the said rest, residue and remainder of my estate, both real and personal &c., unto the lawful issue of my said daughter Anna, their heirs, executors, administrators and assigns forever, equal- ly to be divided among them, share and share alike. Item. I do give and bequeath unto my daughter Christianna (wife of John Wyckoff ) during the term of her natural life, the rents, issues and profits of one other equal undivided third part of all the said rest, residue and remainder of my estate, both real and personal, to be paid to her in half-yearly payments &c. ; and after her decease, I do give, devise and bequeath the said last mentioned one equal undivided third part of all the said rest, residue and remainder of my estate, both real and personal, un- to the lawful issue of my said daughter Christianna, their heirs, 494 CASES IN THE COURT OF ERRORS. Bogert v. Hertcll. executors, administrators and assigns forever, equally to be di- vided aflfcong them, share and share alike. Item. I do give, devise and bequeath unto my grandsons William Hertell and John D. Hertell, and to their heirs, executors, administrators and assigns forever, as tenants in common, the remaining one equal undivided third part of all the rest, residue and remainder of my estate, both real and personal, equally to be divided be- tween them, share and share alike, and to be paid to them as they shall respectively attain the age of twenty-one years, the income thereof during their minorities to be applied by my ex- ecutors, at their discretion, towards the support, maintenance and education of my said grandsons. Item. For the more easy and equal division of my estate, I do hereby fully authorize and empower my executors hereinafter named, whenever they shall think it expedient, to sell and dispose of all or any part of my real estate, for the most moneys that can be gotten for the same, either at private or public sale, and in due form of law to sign, seal, execute and deliver good arid sufficient deeds of conveyance for the same to the purchaser or purchasers thereof, his, her or their heirs and assigns forever, in fee simple. Item. It is my will that all the rest of my personal estate shall be put out at interest by my executors, upon sufficient land security, and kept at interest until the same must be paid as above directed ; and lastly, I do nominate," &c. concluding with the usual clause appointing executors. The case was argued here by C. Edwards, for the appellant, and S. Stevens, for the respondents. NELSON, Ch. J. The great question in the case is, whether the assignment of the bond and mortgage by Van Beuren to Bogert, had the effect to transfer the legal interest therein, or, in- other words, whether one of the executors was competent to sell and transfer this item of the assets of the estate, so as to give a complete title to the purchaser. The court below ALBANY, DECEMBER, 1842. 495 Bogcrt v. Hertell. held, that notwithstanding the power given by the will to sell and dispose of the real estate, and thus, in fact, to convert the mass into money, yet, after it had been thus converted, and existed in the hands of the executors in the state and condition of personalty, it was still to be regarded as land, subject to the rules and principles governing the disposition of real estate ; and that the executors, as such, having no control over the lands, (their powers being limited strictly to the administra- tion of the personal estate,) the sale and assignment by Van Beuren were wholly inoperative and void. The court below also held, that even admitting the bond and mortgage to be a part of the personal assets of the estate, yet, inasmuch as these instruments were made to Van Beuren and WyckofF in their joint names, though described as executors, it was not compe- tent for one of them to sell and transfer the legal title to the same. In respect to the first ground, I think the fundamental error lies in a misapprehension of the true nature and character of the fund in the hands of the executors. It is said by the court below to be an established rule in the doctrine of equitable conversion of real into personal estate, that where the devisor directs the conversion for a particular specified purpose, and not absolutely to all intents and purposes, or " out and out" as the phrase is, courts are bound still to regard the estate as land ; and that no part of the mass thus converted has im- pressed upon it the character of personalty. Now I think the authorities demonstrate that where the devisor has directed or authorized the conversion of his real estate, even for a particular special purpose, such as distribution, courts are bound, so long as the purpose and object exist and continue, to regard it as of that species of property into which it was directed to be converted ; and, to the extent and for the purpose declared, it is to be treat- ed as money, and not land. This will be found to be the uniform language of all the cases on the subject. If the purpose and object of the conversion fail altogether, or in part, then the whole estate, in the one case, and the part, in the other, is re- 496 CASES IN THE COURT OF ERRORS. Bogert . Hertell. garded as an estate or interest undisposed of by the will j and as the devisor, in the event happening, has made no disposition of the estate, it takes the direction given to it by law, indepen- dently of the will, and goes to the heir at law. But in the latter case, where there is only a partial failure, if the pur- poses of the will still require a sale and conversion, the heir takes the part thus undisposed of, as money, and not as land, and, on his death, it will go to his personal representatives. This would seem to be a proper legal view of the case, con- struing the provision of the will in this case in conformity with the established rule of interpretation, viz. according to the plain intent of the testator. The whole doctrine of equitable conversion rests upon this ground. The law regards the prop- erty, for all the purposes of the will, in the state and condi- tion of real or personal, exactly according to the character im- pressed upon it by the manifestation of the testator's intent. And if we apply this rule to the provision of the will in the case before us, nothing can be clearer thai that, in the event of the election of the executors, which has been made, the tes- tator intended the real estate should be sold and converted into money, and distributed as such among the beneficiaries. But let us see how the doctrine stands upon authority. The cases are numerous, but I shall refer to a few of them only. In Yates v. Compton, (2 P. Wms. 308,) the testator devised that his executor should sell his land, and purchase with the proceeds an annuity of 100/. for the life of Jane Styles, and should allow to her so much thereof as would support her and her children. He also gave 30/. to each of the children to be charged upon the annuity. Jane Styles, (the intended annui- tant,) died soon after the testator, and the administrator with the will annexed (the executor having renounced) filed a bill to compel the heir to join in a sale of the lands. It was in- sisted on the part of the heir, that as the power of sale was only given to the executor for a particular purpose, which had failed, the land ought not to be sold. But the chancellor held, that the intention of the will was to give all away from the ALBANY, DECEMBER, 1842. 497 BogCTt v. Hertell. heir, and to turn the land into personal estate ; and that this intention must be taken as it was at the death of the testator, not to be altered by subsequent events. He accordingly de- creed the lands to be sold, and the proceeds to be paid to the administrator, subject to the payment of the children's legacies. There, it will be perceived, one of the particular objects for which the land was directed to be sold had failed ; but as others existed, viz. the legacies to the children, it was still necessary that the conversion should take place. In Bartholomew v. Meredith, (1 Fern. 276,) where the tes- tator devised his land to be sold for the payment of portions to his younger children, one of whom died after the portion be- came payable, but before the sale, it was held that the land should be sold, and that the share of the deceased child in the proceeds of the land, being personal estate, went to the ad- ministrator. There, also, one of the purposes of the conversion failed, but others existed requiring that the intent of the testa- tor to change the estate into personalty should be carried out. In Doughty v. Bull, (2 P. Wms. 320,) the testator devised his lands to trustees, in trust to apply the rents and profits thereof, until sale, for the benefit of his four children, and in further trust, that as soon as the trustees should deem it for the benefit of the children, they should sell the land and divide the proceeds among them in equal shares the shares of the sons to be paid to them at twenty-one, and those of the daugh- ters at twenty-one, or upon their marriage. The eldest son attained to the age of twenty-one and died without issue, leav- ing a wife ; and the question arose between one of the children, claiming as heir, and the widow. If the property was to be "regarded as land, the share went to the heir ; if as personal estate, a moiety belonged to the widow. The master of the rolls decreed that the lands being devised to be sold were thereby rendered personal estate, and that a moiety of the share belonged to the widow of the deceased son, the same as if the estate had already been converted into money. This decree was affirmed on appeal by the chancellor. The case, it will VOL. IV. 63 498 CASES IN THE COURT OF ERRORS. Bogert . Hertell. be perceived, is, in all its circumstances, like the one in ques- tion. The direction was to sell the land and convert it into personal estate for the sole purpose of division among the chil- dren ; and no doubt was entertained that it partook of the character of personalty even before the sale. The discretion of the trustees in this respect was regarded as a question of time, and the intent to have the land sold as absolute. Hence it was held, that the property should be deemed money in the hands of the trustees ; and this, though one of the purposes of the conversion had failed before it took place. If it be said there was in that case a conversion " out and out" for all pur- poses, then it follows that a direction to sell for the purposes of a division is to be regarded as one of that character, and that the estate becomes absolutely changed into personal assets. The same doctrine is maintained in Mdberly v. Strode, (3 Vesey, 450,) where a sale was directed for the purpose of dis- tribution j also in Wright v. Wright, (16 Vesey, 188,) and in Fletcher v. Ashburner^ (1 Bro. Chan. Rep. 497.) But without going over the cases, for they are numerous, I will only refer to the clear and satisfactory exposition of the principles of equitable conversion by Sir John Leach, vice-chancellor, in Smith v. Claxton, (4 Mad. 484,) decided in 1819. That case was twice argued, all the authorities were collected and fully examined, and the principles laid down cover the whole ques- tion before us. The will directed, first, a sale of certain lands for the payment of debts and legacies, the surplus to be paid to the wife of the testator ; and secondly and thirdly, a sale of cer- tain other distinct parcels of land for the purposes of division between the testator's children and grandchildren, depending upon the occurrence of certain events. The vice-chancellor said : " Where a devisor directs his real estate to be sold, and the produce to be applied to particular purposes, and those purpo- ses partially fail, the heir at law is entitled to that part of the produce which in the events is thus undisposed of. The heir at law is entitled to it, because the real estate was land at the ALBANY, DECEMBER, 1842. 499 Bogert t. HertclL devisor's death ; and this part of the produce is an interest in that land not effectually devised, and which therefore descends to the heir." He further observed : "Under every will, when the question is, whether, the devisee or the heir failing, the devisee takes an interest in land, as land or money, the true enquiry is, whether the devisor has expressed a purpose that, in the events which have happened, the land shall be convert- ed into money 1 Where a devisor directs his land to be sold, and the produce divided between A. and B., the obvious pur- pose of the testator is, that there shall be a sale for the conve- nience of division ; and A. and B. take their several interests as money, and not land. So if A. dies in the life time of the devisor, and the heir stands in his place, the purpose of the dev- isor, that there shall be a sale for the convenience of division, still applies to the case ; and the heir will take the share of A. as A. would have taken it viz., as money, and not land. But in the case put, let it be supposed that A. and B. both die in the life time of the devisor, and the whole interest in the land descends to the heir ; the question would then be, whether the devisor can be considered as having expressed any purpose of sale applicable to that event, so as to give the interest of the heir the quality of money. The obvious purpose of the devi- sor being, that there should be a sale for the convenience of division between his devisees, that purpose could have no ap- plication to a case in which the devisees wholly failed, and the heir would therefore take the whole interest as land." The first devise, in that case, had wholly failed ; and, agreeably to the above lucid exposition of the law, the heir took the estate as land. In respect to the second and third devises, one of the two devisees between whom the estates were to be divided had died, but as the purposes of a sale for a division still applied, the fund was held to be personal estate, and the heir took the share as A. would have taken it, viz. as mo- ney and not land ; and he being dead, it consequently passed to his personal representative, and not to his heir who had claimed the interest. 500 CASES IN THE COURT OF ERRORS. Bogert v. Hertell. Now, I apprehend, upon these cases, and I might refer to numerous others, for they all hold one uniform language upon this point, it may be considered as established beyond all contro- versy, that where the testator directs his lands to be sold for the purpose of division among his children and grandchildren, so long as this purpose of the sale and conversion exists and is necessary to carry out the intent of the will, so long the quali- ty of personalty is effectually stamped upon the estate in the hands of the executors ; and courts are bound to consider it as subject to the laws of that species of property into which it was intended to be converted. That the executors take the estate thus converted, in the character of their office, is also fairly deducible from another class of cases kindred to those to which I have already referred. It has been settled law since the Year Books, that a power given in a will to sell land for the purpose of paying debts and legacies, or for making division of the produce, without naming the donee, will vest in the executor by implication. This is deemed to be fairly inferable from the fact that the fund is to be distributed by him, no contrary intention appearing in the will. The cases on this subject are collected by Mr. Sugden, in his valuable treatise on powers, and sustain, beyond all ques- tion, the principle stated. (1 Sugd. on Powers, 134 to 138, ed. 1837.) In the case of Tylden v. Hyde, (2 Sim. fy Stu. 238,) the tes- tator directed his real and personal estate to be converted into money, and the interest thereof to be divided among his sisters ; and it was held that a power to the executors to sell the prop- erty was implied. The vice-chancellor stopped the argument, *and observed : " Where there is a general direction to sell, but it is not stated by whom the sale is to be made, there, if the produce of the sale is to be applied by the executors in the execution of theif office, a power to sell will be implied to the executors. Here the produce of the sale is to be confounded with the personal property which must necessarily be divided by ALBANY, DECEMBER, 1842. Bogert t>. HcrtelL the executors ; and, by the rule which I have stated, a power is therefore implied to the executors." It is supposed, however, even admitting the conclusion to be correct that the produce of the land is to be deemed personal estate in the hands of the executors, that still the fund does not belong to the personal assets of the estate, nor vest in the executors as such ; but that they hold in the character of trus- tees, in trust to distribute among the children. This I admit to be true to a limited extent and under particular circumstan- ces that I shall mention j but the doctrine has no application to the present case. We have seen that, where the purposes of the conversion fail altogether or in part, the whole interest in the one case, and the particular portion of it in the other, is re- garded, in the events happening, as an interest undisposed of by the will j and that then, the object of impressing upon it the character of personalty having failed, it partakes of the nature of that species of property to which it before belonged i. e. land and goes to the heir. But if, notwithstanding a partial failure, the purposes of the will still require the conversion, though the heir takes the share, failing the devisee, he takes it as money that being the state in which it is directed to be converted and not as land. Now, so far as regards this un- disposed of interest, that goes to the heir and is not to be dis- tributed according to the purposes for which it was directed to be converted, that is, the purposes of the will. It is not, I ad- mit, considered strictly as belonging to the personal estate of the testator, or as constituting a part of the general assets ; but it is regarded, by this total or partial failure, as having be- come separated from the mass of the personalty, and held by the executors as trustees for the heir, or those to whom it may belong. So, in case of a devise to the executors to sell the real estate to pay debts and legacies or both, the surplus of the moneys beyond what is sufficient for this purpose, constitutes no part of the general assets, but results to the heir, as partaking of the nature of the estate out of which it was raised. Why ? 502 CASES IN THE COURT OF ERRORS. Bogert v. Hcrtcll. The obvious answer is, because it was not the design of the testator to stamp the character of personalty upon the estate, beyond what was sufficient to pay debts and legacies. But within that limit the intent is clear, and the quality and char- acter of the estate intended, complete and absolute. This idea will be more fully illustrated by a reference to the manner of distributing the produce of real estate directed to be sold for the payment of debts and legacies. For a long time the fund was considered legal assets in the hands of the executors, and distributed, in the ecclesiastical courts, in the ordinary course of administration. This was the doctrine that generally pre- vailed until the case of Silk \. Prime, decided by Lord Cam- den in 1768. (1 Bro. Ch. Rep. 138, in note.) There, in analogy to the case of a devise of lands to trustees, not execu- tors, to be sold for the payment of debts and legacies, where the distribution was necessarily made under the jurisdiction of a court of equity, and by that court always held to be equita- ble assets, distributable equally among all the creditors, on the principle that " all debts being, in a conscientious regard, equal, and equality the highest equity," the court seized upon the idea that when the estate was devised even to executors, or a power given to them in trust to sell and pay debts, they were in some sort to be regarded as holding the fund in trust, which might properly subject it to that jurisdiction by which means the court was enabled to apply a new and more equitable rule in the distribution of the fund. Since then, the produce of the land has been considered equitable assets, to be distributed equally among all the creditors. (Toller, 413 to 415, ed. of 1815 ; Ram on Assets, chap. 26, and the cases there cited.) But this did not change the nature of the fund, nor the execu- tor's power of disposition over it. It was still personal assets vested in and administered by him among the several creditors and legatees. The effect of the decision was only to apply a new rule in the course of distribution, and turn what was be- fore regarded as legal, into equitable assets, for the purpose of a more just and equitable distribution by the executor. ALBANY, DECEMBER, 1842. 503 Bogert *. Hertell. I have no doubt, therefore, that the fund in this case is to be regarded, to all intents and purposes, personal assets of the es- tate in the hands of the executors j that their power over it is as full and perfect as in the case of the personal estate of the testator with which it is blended j and that the whole, in case of a sale in pursuance of the power given to them in the will, is to be distributed as money, and no part as land, or as par- taking of the nature and character of real estate. The next question is, whether it was competent for one of the executors to assign and transfer the legal interest in the bond and mortgage to Bogert, the appellant. And this turns upon the question, whether they held the bond and mortgage in the character of executors, or in their own personal right. We have seen that both instruments are, in terms, made to them iu their representative capacity j and it is admitted to be a general rule, that one of two or more executors possesses the power of sel- ling and disposing of the personal assets of the estate as fully as if all were to join in the act of transfer. It would therefore seem to follow naturally enough, that if Van Beuren and Wyckoff are to be regarded as invested with the interest in the bond and mortgage in their character as executors, as part of the per- sonal assets of the estate, that the bona fide transfer by one, for full consideration, would pass that interest to the pur- chaser. It appears to have been once understood that an executpr could not, by possibility, acquire an interest in his representa- tive character in a promise to, or undertaking with him, in that capacity, but that he must, legally and of necessity, be vested alone, by operation of such engagements, in his own personal right. The case of Betts, ex*r #c. v. Mitchell, (10 Mod. 316,^ decided in the K. B., 1 Geo. 1, was to this effect. The plaintiff brought an action upon a promissory note made to him as executor, and, in counting upon it, the promise was laid as made to him in that character. There were other counts on promises to the testator. It was determined that the plaintiff could not recover, on the ground that he must be regarded as 504 CASES IN THE COURT OF ERRORS. Bogert . Hertell. holding the note in his own right, and not as executor ; and that, therefore, there was a misjoinder of counts. It was there said that, on the death of the executor, the note would go to his administrator, and not to the administrator de bonis non. We will see hereafter that this idea has been long exploded. The same doctrine was held in the case of a bond to the plain- tiffs as executors, in Hosier and another v. Lord Jlrundell, (3 Bos. $ Pull. 7,) decided by the C. B. in 1802. (a) But in King and others v. TAom, (1 T. R. 487,) decided by the K. B. in 1786, where a bill of exchange had been endorsed to the plaintiffs as executors, and, in counting upon it, the promise was laid to them in that character, it was held that they were enti- tled to recover. Ashurst, J. says: "It must be taken for granted that the endorser was indebted to the testator, and to the plaintiffs as executors, and so he might indorse to the plaintiffs as such executors. Then they held the bill as execu- tors, and, upon the acceptor's refusing to pay it, they may de- clare upon the right in which they hold it." " They have only declared according to the truth of the case." Buller, J. con- curred. The same doctrine was more fully examined and declared in Cowdl and wife, adm'xj fyc. v. Watts 9 (6 East, 405.) There the plaintiffs declared, in the first count, in right of the wife as administratrix, on promises made to Cowell and his wife as ad- ministratrix, for goods sold and delivered by them in their rep- resentative character to the defendant. There was a second similar count on a quantum valebant. and a third upon an ac- count stated with the wife as administratrix. The defendant moved in arrest, after verdict, on the ground of misjoinder of counts. The court examined all the cases, which they admit- ted to be contradictory, and laid down the broad proposition, which has been adhered to ever since, that where the promises are made to the executor as such, and the money when recov- (o) See Partridge v. Court, (5 Price, 412, 7 id. 491, S. C. on error;) alao Powley v. Newton, (6 Taunt. 453.) ALBANY, DECEMBER, 1842. 505 Bogert v. Hcrtcll. ered would be assets, the executor may declare for it in his representative character. The court referred to and approved the case of King and others v. Thorn, and repudiated the rea- sons assigned in the cases opposed to it. No doubt was enter- tained that the promise to the plaintiffs in right of the wife as administratrix, vested them in interest in their representative character. The case of Catherwood v. Chabaud, (1 Barn, if Cress. 150,) is still more direct to the purpose. There, a bill of exchange had been endorsed generally, but delivered to S. C. as admin- istratrix of J. C. for a debt due to the intestate. S. C. died after the bill became due and before it was paid ; and it was held that the administrator de bonis non of J. C. might declare upon the bill as such, and recover the amount as unadminister- ed assets of the estate. Abbot, Ch. J. observed : " It has been decided in a variety of modern cases, that an administrator may sue as such under a promise made to him in his representative character ; and that principle governs my opinion upon the present case , for where the cause of action is such that the first administrator may sue in his representative character, the right of action devolves upon the administrator de bonis non of the intestate." Bayley, J., referring to the cases of King and oth- ers v. Thorn, and Cowell and wife, adm?x, v. Watts, said, " if the administrator dies intestate, without having sued upon such a promise, the administrator de bonis non may sustain an action upon it ; for he succeeds to all the legal rights which belonged to the administrator in his representative capacity. Here S. C., the administratrix of J. C., might have sued as such upon the bill in question. This action was therefore properly brought by the administrator de bo?iis non." The decision in this case di- recdy overrules the principal ground relied on in Bell v. Mitch- ell and Hosier and another v. Lord Jlrundell, for refusing to allow the executor to recover in his representative character, in the one case upon an endorsed bill, and, in the other, upon a bond made to himself in that character. The same principle was strongly asserted in the recent case of Jlspinall v. Wake, VOL. IV. 64 506 CASES IN THE COURT OF ERRORS. Bogert v. Hertell. (10 Ding. 51,) where it was held, that the executors might sue, as such, for the price of goods of the testator sold by them, af- ter his decease, to the defendant in the course of dealing with him in their character as executors. Tindal, Ch. J. referred to the case of King and others v. Thorn, and observed that, if bills had been given for the goods to the plaintiffs as executors they might have sued upon them in that character j and that it would be capricious to say they might not also sue as ex- ecutors for the original consideration of the bills. In Clark v. Hougham, (2 Barn, fy Cress. 149,) the plaintiff was allowed to recover, in her representative character, money which she had paid, as such, through mistake, to the defendant. Now, the principle deducible from all these cases, I appre- hend, conclusively disposes of the present question. Why was the executor or administrator allowed to maintain the suit in nis representative character, where the promise or contract was made to and with himself as executor 1 Confessedly for the reason that he was vested, in interest, in the subject matter of the promise or contract in his representative character and ca- pacity. In the two cases of suits on bills of exchange, the plaintiff was regarded as holding the securities (as executor, in the one case, and as administratrix in the other,) as belonging to the assets of the estate j and it was held that he could deal with the paper accordingly. So completely was the latter deemed to be vested in her, in her representative character, that the bill passed with the remaining unadministered assets: to the administrator de bonis non, by the mere operation oi law. And being thus vested in interest, it necessarily follows that the power of control and disposition over thi item of the assets is as complete and absolute as in respect to any other belonging to the estate. The case of Smith v. Whiting, (9 Mass. R. 334,) referred to by the chancellor, is an authority against this conclusion But the decision in that case was obviously put upon the cases of Bttt* v. Mitchell, and Hosier and another \. LordArundell, the principle of which, we have seen, has been long overruled. ALBANY, DECEMBER, 1842. 507 Bogcrt v. HcrtclL It was held in Smith v. Whiting^ that one of the payees could not transfer the interest in the note by endorsement, because the executors were regarded as holding the security in their individual capacities. The court say : " The promisees, not oeing copartners, had each but a moiety. One therefore could not assign the whole." But if both had been considered as holding the note in their representative character, then, each representing the testator, the act of one would have been as ef fectual to pass the interest in the note as the act of all. ( Toller , 37, 360, cd. of 1815, and the cases there cited.} Assuming that Van Beuren, the executor, was competent to sell and assign the bond and mortgage, then there cannot be a doubt that Bogert acquired a complete title to the money due thereon ; for it is admitted he purchased in good faith and for full value advanced at the time. There is no pretence for the charge of collusion with the executor, or of knowledge on the part of Bogert that the executor intended to misapply the assets, or of fraud of any description. He paid the full face of the bond m cash, on a purchase in the usual way ; and, upon all the cases, assuming that one of the executors alone had power to assign and transfer the interest in the securities, Bogert has established as perfect a right to the money thereby secured, as if Van Beuren had been owner in his own right. (M'Leod \. Drummond, 17 Ves. 153 j Field v. Schie/elin, 7 John. Ch. Rep. 150 ; Colt v. Lasnier, 9 Coioen, 320.) I am of opinion, therefore, thai the decree below ought to be reversed, and shall vote accordingly. ' BOCKEE, Senator. By the will of John Dover deceased his executors were authorized to sell all or any part of his real es- tate at their discretion. This power was granted to them pro- fessedly " for the more easy and equal division of his estate." So far as related to the sale of the real estate, the executors doubtless acted in the capacity of trustees, and it was necessary for all to join in the conveyance in order to give a good title. The power, however, having been executed, and the estate, iu 508 CASES IN THE COURT OF ERRORS. Bogert . Hertell. pursuance of the directions of the will, converted into per- sonalty, a different question arises. Van Beuren and WyckofF are clothed by the testator with the double character of execu- tors and trustees. They act as executors in relation to person- al assets, and as trustees in regard to real estate. But the spe- cial directions of the will are, to convert the whole real estate into personal. When so converted, is it to be considered in the hands of Van Beuren and Wyckoff as executors, or as trus- tees 1 No further act was to be done by them but to divide the proceeds among the children of John Dover, according to the directions of the will. This act belongs to the character and appropriate duty of executors. After conversion, the estate became an aggregate whole in the form of personal property the testator having made no distinction between the avails of his real estate and his personal property. The whole consti- tuted one mass, to be divided in the same way by his execu- tors. Is not the fund raised by the sale of the real estate dis- tributable by Van Beuren and Wyckoif in their character of executors, as much so as any personal property which belong- ed to the testator 1 Does not the will in this case authorize and direct a conversion of the entire real estate into money to be paid to the children and grandchildren of the testator 1 If so, I think it fairly comes within the principle stated by Lord Elleaborough in the case of Denne v. Judge, (11 East, 288,) in which he says, that if the same persons are both trustees and executors, and a conversion out and out of the entire es- tate into money is directed, the fund would be assets in their hands as executors. It comes also within the rule admitted by the vice-chancellor, (3 Edw. Ch. Rep. 27,) that where there is a distribution in the character of executors, the fund, being as- sets, would be taken by them in that capacity, and not as trus- tees. The principle laid down by the vice-chancellor, (Id. p. 24,) is, that where land is devised to executors to be sold for the payment of debts, or where executors are empowered by will to sell lands for that purpose, without any devise to them, or where they proceed to do so under the authority of ALBANY, DECEMBER, 1842. 509 ~^--,* . .. Bogert v. Hcrtcll. the statute by virtue of a surrogate's order, without any au- thority from the will itself, the surplus money arising from the sale, after satisfying the debts, retains the character and attri- butes of land, and still belongs to the heir or devisee. All this is very true. The surplus money is the residuum of the* real estate after a sufficiency has been sold for the payment of debts, and should go where the real estate would itself have gone. There is good reason in all such cases that the surplus money should bear and retain the character and impress of land, and not be accounted for by the executors as personal es- tate ; because, in strictness, no more land ought to be sold than is sufficient to satisfy debts, and the excess ought to re- main specifically as real estate. The principle of the cases on this subject have no application to the one now before the court. Very different, I apprehend, is the present case, where the entire real estate is to be converted into money, which, with the personal estate, is to constitute the fund for distribu- tion by the executors. Such must have been the intention of the testator, and such must have been the view entertained by the respondents themselves when they filed their bill against the executors to compel them to account. It was a late dis- covery that Mr. Bogert was to be brought in to answer for the misapplication of funds by the acting executor. It must be admitted that Bogert has acted with the most perfect good faith. He dealt with Van Beuren as the only resident acting executor, who was in good credit at the time, under a repre- sentation that the money was wanted for the purposes of the estate. He had no reason to doubt this representation, or to entertain any suspicion that the money would be misapplied. Under such circumstances, it would be a very great hardship to take from Mr. Bogert some fifteen thousand dollars, proba- bly the earnings of a life of industry, by means of any of those sharp " quillets" of the law against which the most astute and experienced lawyers would be unable to guard. If any one must suffer from the default of Van Beuren, and from the misplaced confidence which the testator reposed in him, it is more reason- 5JQ CASES IN THE COURT OF ERRORS. Bogert v. Hertell. able that it should be the complainants, than that the loss should be made to fall upon Mr. Bogert. I do not perceive that there is any good reason for the distinction, as regards the power of executors, between ob- ligations given to the testator, and those given to execu- tors as such, where the fund is really and truly assets in their hands. Chancellor Kent, in the case of Sutherland v. Brush, (7 John. Ch. Rep. 17,) repudiated such a distinction, and, in this particular, his decision has not been overruled, nor is it inconsistent with the case of Coddington v. Bay, (5 id. 54.) Chancellor Kent's decision may have been erroneous and inconsistent with the principle of Coddington v. Bay, upon the ground that Brush was not a bonajide purchaser. It does not follow, however, that he was in error in deciding that one of several executors could transfer to a bonajide purchaser a secu- rity given to them jointly as executors. The error, if any was committed by Chancellor Kent, was on a point having no relation to the question in the present case. The maxim, "falsus in uno falsus in omnibus" sometimes applied to witnesses, would be very ungracious in its application to the decisions of judicial tribunals. I am of opinion that Van Beuren and Wyckoff held the bond and mortgage in question as executors ; that one of them had the same power to transfer these securities to a bonajide pur- chaser as if they had been given to the testator ; that Mr. Bogert was such purchaser for a full and valuable consideration ; that his conduct was honest, guarded and cautious ; that he is not chargeable with notice of any facts which could implicate him as having colluded with Van Beuren ; and that the assign- ment from Van Beuren gave him a good title to the bond and mortgage. But if this were not so, I am further of the opin- ion that, under all the circumstances of this case, the equity is so strong in favor of Bogert that it ought to be decreed that Wyckoff, as executor, should join in the assignment, in order to perfect Bogert's title. The decree of the chancellor ought therefore to be reversed. ALBANY, DECEMBER, 1842. 51 1 t Bogcrt v. Hertell. FRANKLIN, Senator. The principal question in this case is, whether by the assignment executed to James Bogert by Thomas Van Beuren, one of the executors of John Dover de- ceased, the former acquired a legal title to the bond and mort- gage in question, and can receive the moneys secured thereby to his own use and benefit. John Dover, by his will, dated the 12th day of October, 1820, after providing for the payment of his debts and making a provision for his wife in lieu of dower, gave to each of his daughters, Anna, (wife of Stephen Stevens) and Lucretia, (wife of John Wyckoff,) during their natural lives, the rents, issues and profits of one equal undivided third part of all the rest, residue and remainder of his estate, both real and personal, for their own use, to be paid to them in half yearly payments. He also gave to his grandsons William Hertell and John D. Hertell, and to their heirs, executors, ad- ministrators and assigns forever, as tenants in common, the re- maining one equal undivided third part of his estate, both real and personal, to be divided equally between them, and to be paid to them as they should respectively attain the age of twen- ty-one years ; the income thereof during their minorities to be applied by his executors, at their discretion, towards the sup- port, maintenance and education of said grandsons. Then, for the more easy and equal division of the estate, his executors were fully empowered, whenever they should think it expedient, to sell all or any part of his real estate for the most money that could Le had for the same, and to execute good and sufficient deeds of conveyance for the same in fee simple. The will further directed, that all the rest of the testator's personal estate should be put out at interest by his executors upon sufficient land security, and kept at interest until the same must be paid, as therein provided. The testator died on or about the eighth day of September, 1822, and Thomas Van Beuren and Peter Wyckoff proved the will and took upon themselves the burthen of its execution.' Anna, one of the children named in the will, has since died, leaving her husband and seven children, some of whom are infants un- der the age of twenty-one years, her surviving. The testator 512 CASES IN THE COURT OF ERRORS. Bogert v. Hertell. died seised, among other real estate, of two houses and lots of ground situated in the city of New-York, and known as num- bers 162 and 164 Broadway, which, on the 26th day of Febru- ary, 1825, were sold to John B. Yates, by the two acting exec- utors, in virtue of the power contained in the will, for the sum of $22,500, of which sum $10,500 was received in cash and the residue secured by the bond and mortgage of Yates, bearing date the said 26th day of February, 1825. The bond and mortgage were executed to Van Beuren and Wyckoff, " ex- ecutors of the last will and testament of John Dover, deceased," and were conditioned for the payment of $12,000 with interest, on. or before the expiration of five years from the date thereof. On the 23d day of March, 1827, Van Beuren sold the bond and mortgage to Bogert, for $12,043, and executed to him an assignment of the same, in which he was described as " Thomas Van Beuren of the city of New-York, physician, and one of the executors of John Dover, deceased." The moneys thus received were misapplied by Van Beuren, who afterwards became in- solvent. Here then is presented the question, which of two innocent parties is to bear the loss occasioned by this breach of trust committed by Van Beuren, viz. the devisees of the estate, or the assignee ; and in order to arrive at a correct conclusion, it is necessary to examine in what capacity Van Beuren and WyckofF hold the bond and mortgage. It is a well settled principle of law, that the avails of real estate are riot assets to be administered by executors as personal estate, but are still realty, belonging to the devisees to whom the land has been devised. Consequently, the sale in this case was not a conversion from one species of property to another ; for where land is sold for the payment of debts under authority given in the will, or by an order of the surrogate, the surplus, after the payment of the debts, still retains the character of realty and belongs to the heir or devisee. The executor, as such, can have no power or control over such surplus, but holds the same in his character of trustee, and not as executor. It is evident ALBANY, DECEMBER, 1842. 513 Bogert v. Hertcll. to ray mind, from the terms of this will, that the testator de- signed to create a trust ; because he directs that the rents, issues and profits of one equal undivided third part of the re- mainder of his estate, both real and personal, shall be paid to his daughters in half yearly payments, and that the income of one other equal undivided third part shall be paid to his two grandsons during their minorities, and be applied by his exec- utors at discretion towards their support, maintenance and edu- cation j and in the residuary clause of the will there is also an express trust created. If he had designed that other persons than those named as executors should have executed these trusts^ he would have named them for that purpose ; but his not having done so, leaves the presumption that he intended his executors should act as such trustees, and so the law pre- sumes. It has been urged in argument by the counsel for the appel- lant, that as the bond and mortgage purports to be in the names of Van Beuren and Wyckoff as executors, and as the assign- ment purports to be executed by the former as one of the exec- utors of John Dover deceased, that therefore the appellant was not bound to look beyond the description contained in the bond and mortgage and the assignment. I apprehend that this can- not vest the title in them as executors, if they are not so in fact under the legal construction of the will. Suppose they had been therein described as two of the children and heirs at law of John Dover deceased : that certainly would not give them authority to convey as such, and it would have been no excuse for a purchaser to come into this or any other court and offer as a plea in bar to the claim of the real owner, that he was misled by such description, that he parted with his money or property in good faith, and that therefore he should hold the subject of his purchase against the person legally en- titled thereto. The words, " executors," &c. must be con- sidered as mere words of description, without any binding force, unless the facts legally warrant the description ; and it was the duty of the appellant, or his counsel, which is the same thing, VOL. IV. 66 514 CASES IN THE COURT OF ERRORS. Bogert v. Hertell. to have ascertained in what capacity they acted, and not to have trusted to the mere addition to the name contained in the assignment. For what purpose was authority given to the executors to sell the real estate ? " For the more easy and equal division of my estate," are the words of the will ; and when the executors had sold it for that purpose, (and they could have sold it for no other,) the proceeds partook of the character of real estate, and therefore the bond and mortgage, being the proceeds of real estate, were held by them as trustees for the benefit of the devisees, for the purpose of making a more easy and equal di- vision of the estate. Having thus arrived at the conclusion that Van Beuren and Wyckoff were acting in this transaction in the capacity of trustees, and not of executors, the next question which arises is, whether the act or concurrence of all the trustees who take upon themselves the execution of the trust, is necessary to the due execution of such trust or power j or whether one of sev- eral trustees has authority to sell or otherwise dispose of the property held in trust. In the case of Sinclair v. Jackson, (8 Cowen, 583,) to which allusion was so frequently made in the course of the argument, Chancellor Jones, in delivering the opinion of this court, says : " The powers of the trustees, whether express or implied, must be executed strictly ; and the principle applies equally to trusts or powers coupled with an interest, and where the trust or power will survive, as to mere naked authority ;" and therefore a lease not having been exe- cuted by all the trustees living, was held to be absolutely void. So also in the case of Green v. Miller, (6 John. R. 39,) it was held that, where a trust or authority is confided to several per- sons, for a private purpose, the concurrence of all is necessary to its due execution. This doctrine appears to be recognized and established in all the cases to which my attention has been called, and has not to my knowledge ever been overruled, but is at this day the firm and settled law of the land. It was also urged by the counsel for the appellant, that, if ALBANY^ DECEMBER, 1842. 515 Bogert v. Herteil. the hardship of the case be looked to, this court should lean in favor of a party who has acted in good faith, and paid out of his own hard earnings $12,000. But I understand the rule of law to be, that when one of two innocent parties must suffer loss by the fraud or wrong of a third, the one who by his act has enabled the fraud or wrong to be committed, shall himself bear the loss. In this case, if the appellant had refused to ad- vance his money upon the assignment of the bond and mort- gage by Van Beuren alone, and had insisted upon the signature of Wyckoff, for aught that appears upon the pleadings and proofs, the latter would have refused to sanction the trans- fer, knowing, as he did or as he was bound to do, that the money was not wanted at that time for the purposes of the estate ; and in the event of his complying with a request to join in the assignment, he would probably have been held lia- ble for the loss which afterwards occurred, as it would have been a palpable breach of trust on his part towards those whose interest he was bound to protect ; because, by the express terms of the will, the estate was to have been kept out at interest upon real security until the same was to be paid as therein di- rected. It cannot be pretended that it was necessary at that time to convert the bond and mortgage into cash ; for the pro- ceeds were again loaned out upon marine policies and other personal securities, and finally lost in consequence of a depar- ture from the specified conditions of the trusts. Again, the devisees under the will of John Dover, the respondents in this cause, have been guilty of no act by which they can be charged with deceiving the appellant, or inducing him by any represen- tations of theirs to invest his money in the manner in which he has done. It was not in their power to raise a warning voice in order to prevent him from so doing ; for they knew nothing of the transaction at the time, and were never consulted in re- lation to it. On the other hand, evidence was presented to the appellant that this bond and mortgage were taken by Bogert and Wyckoff in the character of executors, they being therein described as such, and that it was for part of the consideration 516 CASES IN THE COURT OF ERRORS. The Commercial Bank of Buffalo . The Bank of the State of New- York. money on the sale of the Broadway property. It was therefore the appellant's duty, or that of his counsel acting for him, to as- certain how and in what manner or character the bond and mort- gage were held by the executors, and he n-ot having availed him- self of the opportunity to do so, must submit to the consequences of such neglect. The devisees have the right and are entitled to the whole trust estate, in whose hands soever the same may be, and the appellant, being in possession of part of this estate wrong- fully and without any legal title, is bound to give up the bond and mortgage. I am therefore of the opinion that the decree of the chancellor should be affirmed. RUGER, senator, delivered a written opinion in favor of re- versing the chancellor's decree. On the question being put, " Shall this decree be reversed ?' J all the members of the court who heard the argument, (eighteen in number,) except FRANKLIN and PAIGE, senators, voted in favor of reversal. Decree reversed. THE COMMERCIAL BANK OF BUFFALO, appellants, vs. THE BANK OF THE STATE OF NEW- YORK and another, respondents. In general, a defendant in chancery has no means of compelling the complainant to produce papers to be used as primary evidence against himself, save by filing a cross bill for discovery. Semble ; per COWEN, J. After a paper, however, has been produced and used as evidence before an exam: iner, by the complainant, if he subsequently withdraw it and refuse to let tho defendant or his witnesses inspect it, the court will compel its restoration to tho custody of the examiner, for the purposes of the examination, or, motion ; and this, though a copy of it only was marked as an exhibit, and not the paper itself. Exhibits before an examiner are subject to the use of both parties, for the purpose of examining witnesses in respect to them. Tho difference between the English practice and our own, in this particular, stated and considered. Per COWEN, J. ALBANY, DECEMBER, 1842. 517 The Commercial Bank of Buffalo r. The Bank of the State of New- York. A party, by the act of producing and proving a paper before an examiner, thereby makes it an exhibit, whether it be ao marked or not ; and he has no power, without the consent of his adversary, to qualify the effect of the act so as to pro- vent the paper from being treated as an exhibit. Per COWE.V, J. If an examiner omit, through mistake, to mark a paper as an exhibit which has been produced and proved before him, the mistake may be corrected by motion Per COWEX, J. Whether a party making an exhibit and proving it before an examiner, is bound to produce either that, or the deposition by which it was proved, lor the purposes of the hearing, quere. At law, the production and proof of a paper at the trial, makes it evidence for both sides. Per COWEN, J. So, scmble, of a paper produced and proved before a master in chancery on refer ence. Per COWEN, J. APPEAL from an order of the vice-chancellor of the first cir- cuit. In the course of examining witnesses in this cause be- fore Mr. Cooper, an examiner, at Buffalo, in January, 1841, an original list or memorandum belonging to the complainants below now the appellants was produced and used by them in taking the testimony of S. Daniels, one of their witnesses ; and a copy of it was marked by the examiner as exhibit " A." On a subsequent examination at New- York, in March follow- ing, the original list was again produced by the complainants, and several witnesses interrogated by the defendants in respect to it ; but upon their proposing to examine one Williamson, who made the list, and expressing a desire that he might see it, the complainants' counsel refused, and withdrew the same. The defendants thereupon moved the vice-chancellor, aftet due notice to the other party, for an order compelling the produc- tion of the original. The complainants' counsel who attended the examination at Buffalo, stated, in an affidavit made by him, that he declared, at the time of producing the paper, he did not intend to make the original an exhibit in the cause, but to retain it under his control as a paper belonging to his clients ; and that, therefore, a copy only was marked by and left with the examiner, instead of the original. The complainants' coun- sel who attended the examination in New- York, stated, in an- other affidavit, that the paper was produced before the examiner 518 CASES IN THE COURT OF ERRORS. The Commercial Bank of Buffalo . The Bank of the State of New-York. there, out of mere courtesy to the defendants' counsel, and not as an exhibit. The genuineness of the paper was not disputed, nor was its materiality denied ; but the complainants insisted before the vice-chancellor that it was still under their control, and that the defendants could not be permitted to use it except as matter of favor. The vice-chancellor held otherwise, how- ever, and made an order that the complainants produce the original upon the further examination ; that the defendants be permitted to show the same to their witnesses, and examine in regard thereto, &c. From that order the complainants appeal- ed directly to this court, the chancellor being interested. L. H. Sandfordj for the appellants. W. C. Noyes, for the respondents. COWEN, J. Independently of the production and use of this document before the examiners, it may be conceded that, -to compel its production as primary evidence, a cross bill must have been filed for the purpose of discovery ; (Kelly v. Eck- fordj 5 Paige, 548, and the cases there cited ;) and that, with- out such a proceeding, the defendants would be confined to se- condary evidence after notice to produce had been given. (Gresl. Eq. Ev. 195.) In the case before us, however, the original was produced, the primary evidence was before the examiners, and witnesses were actually interrogated and their answers taken down upon the point of its verity. Then, upon the witness who made the original being produced, it was withdrawn from his observa- tion. That it was a material paper, and in its own nature would form a proper exhibit in the cause, is not denied ; nor that it was in fact used before the examiners as evidence by both parties. That it was not marked as an exhibit can make no difference, if it should have been so marked. The omission, if it were material, must be set down to the mistake of the offi- ALBANY, DECEMBER, 1842. 519 The Commercial Bank of Buffalo r. The Bank of the State of New. York. cer ; and, like similar mistakes, be corrected by motion. (Vid. Toml. Diet. " Exhibit.") The vice-chancellor was right, therefore, in holding that the paper had become an exhibit in the cause. The production and proof of a paper before an examiner makes it an exhibit in fact, (Toml. Diet. " Exhibit ;") and the party producing it has no power without the consent of his adversary (and such consent is not satisfactorily shown in this case) to qualify the effect of the production and proof. Such an act at nisi prius would have made it evidence for both parties. (Kelly v. The Dutch Church of Schenectady, 2 Hill, 105.) In Willis v. Dyson , (1 Stark. Rep. 164, 166,) Scarlett, in opening the plaintiff's case, alluded to a document material to the defendant as evidence, which the plaintiff intended to over- come by countervailing evidence. The defendant's counsel in- sisted that he had a right to consider even this as amounting to proof of the document by the plaintiff. Lord Ellenborough said, that was claiming too much, though, if the counsel had propounded the document as forming part of the plaintiff's case, he could not afterwards have been allowed to retract. (See also Calvert v. Flower, 7 Carr. < Payne, 386.) It never has been questioned that the production of a paper and an examination of witnesses in respect to it before a jury, the genuineness of the paper being proved or admitted, makes it evidence for both sides. So, I should think, if produced and proved before a master on reference ; (Gilbert v. Wetherell, 2 Sim. ^ Stu. 254 ;) and the act of afterwards withdrawing and withholding the paper might be punished as a contempt. Upon obvious analogy, an exhibit before an examiner is at least subject to the use of both parties for the purpose of ex- amining witnesses in respect to it, whatever may be the rule as to its inspection or production at the hearing. It is said that counsel must examine without inspection ; and several cases are cited where, though the party has made an exhibit of a pa- per and taken depositions concerning it, yet the court has, on motion, declined to require its production for the inspection of 520 CASES IN THE COURT OF ERRORS. The Commercial Bank of Buffalo . The Bank of the State of New- York. the opposite party. (Davers v. Davers, 2 Str. 764 ; 2 P. Wms. 410, S. C.', Wiley v. Pistor, 7 Ves. 409; McMahon, M. R. in Hare v. Collins, 1 Hogan, 193, 4.) These cases re- fer to the complainant's exhibits, arid the rule would seem to be confined, at least in its more rigorous application, to motions against him. (Fencott v. Clarke, 6 Sim. 8.) The motion in the court below was made against the complainant ; and the cases cited should therefore govern us, unless the reason upon which they were founded is done away by the change in our form of conducting chancery examinations. The reason, so far as it can be collected from the English cases, is, that the defendant has no right to see the strength of the complainant's cause till the hearing. (2 P. Wms. 410; 7 Ves. 411; Gresl. Eq. Ev. 129.) Even in England, it is not denied that you may examine respecting the exhibit ; but you are bound to do so without inspection. It seems to me that the whole of this rests upon the course of the court. The examination is conducted by the examiner in secret, on written interrogatories ; and the rule is general and quite inflexible that the secrets of the examiner's office shall not be disclosed to one party or the other, until after publication shall have passed. With us the examination is open and conducted as it would be before a jury. (2 R. S. 109, 89, 2d ed.) And the incidental right of seeing all docu- ments produced before the examiner for the purpose of being referred to by counsel or witnesses at any subsequent stage of the examination, would seem to follow from the analogous right which, as we have seen, would attend the production be- fore a jury. Whether the party making an exhibit and proving it before the examiner, would be bound to produce at the hearing either that or the depositions by which it was proved, is another question. We are referred to Hodson v. Warrington, (3 P. Wms. 34,) to show that he would not. (And see Gresl. Eq. Ev. 129.) It may be considered as a general rule that the party can select his proofs at the hearing from among all his papers and depositions coming up from the examiner's office ; and that ALBANY, DECEMBER, 1842. 521 The Commercial Bank of Buffalo r. The Bank of the State of New-York. his adversary is not entitled to use the whole evidence rn the cause as he would be at nisi prius. Examiners and commis- sioners are but ministerial officers to aid in furnishing proofs. They do not determine upon them like a judge and jury. The office of the latter is to be performed by the chancellor. But it by no means follows that in the framing and concoction of evidence for the use of the chancellor, evidence which may be brought to bear with fatal effect against a party, he should not be allowed the same means as before a jury to overcome it both by inspection and cross-examination. By stopping short of this, we lose one great purpose of the statute which throws open the doors of the examiner. It was mainly intended to prevent a party being concluded or affected by the old method. This was complained of as inquisitorial. We cannot obviate the objection entirely without governing examinations in chan- cery by the same rules which prevail at nisi prius. I am, therefore, for affirming the vice-chancellor's order. BOCKEE, Senator. It is clear to my mind, beyond controver- sy, that the original paper was used in evidence, and was sub- stantially an exhibit in the cause. It ought therefore to be in the custody, and is in the power of the court. The appellants admit they have possession of the paper. The order of the vice-chancellor directing it to be produced and to remain with the examiner for the respondents' use during the examination of their witnesses, was properly granted, and ought to be af- firmed. All the members of the court concurring in this result, the order of the vice-chancellor was unanimously AFFIRMED. VOL. IV. 66 522 CASES IN THE COURT OF ERRORS. Jackson v. Griswold, JACKSON, appellant, vs. GRISWOLD, respondent. A mere surety for a debt will not be bound by a decree or judgment pronounced in a suit between his principal and the creditor, even though the suit was con. ducted,- on the part of the principal, exclusively by the surety as his agent. Otherwise, semble, if the surety voluntarily came in and litigated as such, in the name of his principal, with the assent of the creditor. If, in a suit between the creditor and the principal, a decree or judgment be pro- nounced against the validity of the debt, this will operate to discharge the sure- ty, and consequently may be used as evidence in his favor. Per COWEN, J. Several instances adverted to in which a person, though not named as a party in a suit, may nevertheless be concluded by the judgment rendered therein. Per COWEN, J. The cases of Douglass v. Howland, (24 Wend. 35,) Willey v. Paulk, (6 Conn. R. 74,) and De Forest v. Strong, (8 id. 513,) commented on and explained. Per COWEN, J. APPEAL from chancery, where Griswold (the respondent) was complainant, and Jackson (the appellant) and Caroline Dunham, were defendants. The last named defendant having failed to redeem the stock in the Williamsburgh Ferry Com- pany pursuant to the chancellor's decree in Dunham v. Jack- son, (see 6 Wend. 22 25,) the appellant, Jackson, commenced a suit at law against the respondent to recover the amount of mo- ney for which that and other stock was pledged, such stock hav- ing become entirely valueless. The respondent thereupon filed his bill in this cause, before the vice-chancellor of the first circuit, to restrain the prosecution of the suit at law, and to have the value of the stock, as it stood in March, 1827, applied in ex- tinguishment of his indebtedness. It appeared upon the pleadings and proofs, that, in November, 1826, the respon- dent borrowed of the appellant $200, and, in February fol- lowing, borrowed the additional sum of $500. The respon- dent was also indebted to the appellant on other demands for money lent, in the sum of about $600. For the pur- pose of securing the payment of the whole amount of this indebtedness, the respondent pledged to the appellant fifty-one shares of stock in the Williamsburgh Ferry Company. Eleven ALBANY, DECEMBER, 1842. 523 Jackson v. Griiwold. of these shares were pledged at the time of the $200 loan, and the remainder on making the loan of $500. The stock belonged to Caroline Dunham, for whom the respondent acted as general agent, and for whose benefit the loan of $500 was made ; the respondent giving his due-bills in different sums for that amount. The bill alleged that, in March, 1827, the re- spondent tendered to the appellant the full amount of all the money loaned to him by the appellant, and demanded a re- transfer of the stock, which the appellant refused. The appel- lant, in his answer, denied the tender, and insisted, among other things, that the decree in the case of Dunham \. Jackson was a bar to the relief sought by the respondent. The testi- mony of the principal witness (Mr. Tracy) showed that a valid tender was made, as charged in the bill, within the principle of the cases cited and approved by Marcy, J. in Dunham v. Jackson , (6 Wend. 33, 34.) Such other facts of the case as are deemed material will be found sufficiently stated in the opinion of Cowen, J. For a more detailed statement, together with the opinion of the vice-chancellor, see 2 Edw. Ch. Rep. 461 et seq. On appeal from the decree of the vice-chancellor, the following opinion was delivered by WALWORTH, Chancellor. This is on appeal by the defen- dant, Jackson, from a decree of the vice-chancellor of the first circuit. The bill is founded upon the same matters which were in litigation in this court in the case of Dunham v. Jack- son, (6 Wend. 22,) in which case Caroline Dunham, the now co-defendant of Jackson, was the complainant, and the present complainant, Griswold, was her agent and witness merely. The complainant in that case having neglected to redeem the stock within the time required by the decree, so that the equity of redemption had become barred, and the stock having become worthless, Jackson commenced a suit against Griswold to recover the amount for which the stock was pledged. Griswold thereupon filed his bill in this cause against Jackson, to restrain the proceedings in the suit at law, 524 CASES IN THE COURT OF ERRORS. Jackson v. Griswold. and for further relief. The answer of the defendant on oath is waived, and the witness Tracy now proves such a tender as Mr. Justice Marcy thought would have been sufficient, if he had testified to it in the former suit. I think the vice-chancellor is right in supposing ' that the decree in the former suit is not a bar to the filing of this bill by Griswold j so far as it was necessary to profect his rights, he not having been a party to the former suit. The complain- ant, if he succeeds at all, must succeed upon the case made by his bill, and not upon the supposed state of facts set up in the defendant's answer and not proved. The bill, which is sworn to, states positively that the forty shares of stock last pledged was the stock of Caroline Dunham, the complainant's sister, and that the complainant pledged it for her, as her agent, to secure the loan of $500, which was likewise made for her. The com- plainant therefore has no claim against Jackson on account of a loss upon that stock ; and if the former had not made himself personally liable for the loan of $500, which he says he made as the agent for his sister, by signing the due-bills with his own name only, the bill, as to those forty shares of stock, would, of course, be dismissed. For, upon his own showing, he is in no way responsible to his sister for the return of that stock, and has therefore no right to apply any claim against Jackson arising out of that transaction, as an equitable defence or off-set to Jack- son's other claims against him. But so far as respects his personal liability to Jackson for the $500 loan, for which those forty shares of stock were pledged, if Jackson, by refusal to permit a redemption of that stock at the time of the tender, caused a loss upon the stock to more than the amount of the $500 loan and interest, he ought not, in equity, to be permitted to proceed against Griswold personally for any part of the $500 loan, as to which, upon the case stated by the bill, Griswold was in the situation of a mere surety for his sister. The other eleven shares of the stock were differently situ- ated. Whether they actually belonged to Griswold, as the ALBANY, DECEMBER, 1842. 525 Jackson t. Griswold. answer supposes, or had only been lent to him by his sis- ter as stated in the bill, the loss upon those eleven shares of the stock fell upon him. For if it was her stock, and only lent to him, he was bound to return such stock to her or pay its value, although she has failed to recover it of Jackson ; and the decree in the former suit would afford Griswold no defence against her claim to compensation. Whatever was the actual value, therefore, of those eleven shares at the time of the ten- der and offer to redeem, is, under the circumstances, an equita- ble off-set against the debts which the defendant Jackson then held against Griswold beyond the $500 and interest borrowed by the complainant as the agent of Caroline Dunham. The amount of those other debts, as I understand the case, must have been considerably more than the market value of the eleven shares at the time, even if Jackson was not entitled to the $200, which was then a matter in dispute between the par- ties. The whole amount claimed, including the $500 bor- rowed for Caroline Dunham and the $200 in disput^, was $1300, which would leave a balance of about $600 of Gris wold's personal debts, excluding the amount in dispute, and $800 including that amount. The contract price of the stock at that time, as stated in the complainant's bill, was eighty per cent, upon its par value, or $440 for the value of the eleven shares ; and, according to the master's report in the former case, it was about that time worth 76 per cent, or $418. The vice-chancellor, therefore, has erred in supposing that the amount which this complainant was entitled to, on account of the loss upon the stock, as an equitable off-set against his own private debts, was more than the amount thereof. The decree is consequently erroneous in awarding a perpetual in^ junction against the defendant's proceeding to collect any part of the demands for which the suit at law was brought. This is an error which he would not have fallen into if he had not, in such a complicated case, inadvertently supposed that the case made by the complainant's bill would entitle him to the 526 CASES IN THE COURT OF ERRORS Jackson v. Griswold. amount of the loss on the forty shares of stock, not only as an equitable defence to the $500 borrowed for C. Dunham, for which he stands in the situation of a mere security, but also as an off-set against his own personal debts. That, as I have before shown, cannot be done, without virtually annul- ling the decree of this court, and the court for the correction of errors in the former case. For if he is allowed the excess of the value of that stock beyond the $500 borrowed for her by him as her agent, to be off-set against his own personal debt, she can recover it. from him as money received to her use. The proper decree, therefore, if Jackson had not pro- ceeded to judgment and execution in the suit at law, would have been for a perpetual injunction restraining him from col- lecting from Griswold any part of the $500 borrowed as the agent of Caroline Dunham ; and that the value of the eleven shares of the stock at the time of the tender should be applied in part payment of the other debts, and the balance only of those* debts and interest be collected of Griswold ; without prejudice to the right of Jackson to collect the $500 and interest from Caroline Dunham. I am inclined to think the vice-chancellor was right in re- ceiving the petition and making the decree to refund the money collected pending the litigation, if any more wa's received than ought, in equity, to have been collected of Griswold ; as that was a mere consequential direction founded on the decree upon the merits. But it was erroneous to include in the amount to be refunded, the costs of the suit against the bail who was not a party to this suit. And those costs were incur- red by the neglect of the complainant to bring the fund into court. Those questions, however, become immaterial, from the conclusions at which I have arrived as to the claim of Griswold to the benefit of the excess of value of the forty shares of stock in which he had no interest farther than to extinguish his per- sonal liability for the $500 loan. The decree appealed from must be reversed. And a de- cree must be entered declaring that the decree in the former ALBANY, DECEMBER, 1842. 527 Jackson r. GriswoRL cause is no bar to the complainant's right to show an equitable extinguishment of his liability for the $500, which, in his bill, is alleged to have been borrowed of the defendant Jackson for Caroline Dunham as her agent, upon the pledge of the forty shares of stock in which the complainant had no interest either as borrower of the stock or otherwise ; and that, upon the facts appearing upon the pleadings and proofs in this case, the complainant has a good and valid defence to any personal claim against him for the recovery of the $500 so borrowed and the interest thereon. It must be further declared and decreed, that as to the eleven shares of stock borrowed from Caroline Dunham by the complainant as alleged in his bill, be was personally liable to her for the value thereof, and is there- fore entitled to claim such value against the defendant Jackson, in the same manner as if it had been the complainant's own stock, notwithstanding the decree in the former suit, to which he was not a party j and that, upon the facts appearing upon the pleadings and proofs in this case, the value of the said eleven shares at the time of the tender, as testified to by Tracy, was an equitable satisfaction to that extent of the several debts or demands due and owing to the defendant Jackson from the complainant, at that time, other than the debt of $'500 for moneys borrowed as the agent of Caroline Dunham. It must, therefore, be referred to a master in New-York, to ascer- tain the amount of those debts, and the value of the eleven shares of stock at that time, and to state the balance due to the defendant Jackson, on account of such debts, beyond the value of such stock. And the master must also ascertain and report what sum or sums have been collected of the complain- ant, or his bail, for the principal or interest of any such debts, or for the principal or interest of the loan of $500, made by Gris- wold as the agent of Caroline Dunham ; and he must further ascertain the excess thus collected beyond what Jackson was en- titled to receive for the balance so ascertained and the interest thereon, and to compute the interest on such excess from the time it was paid by the complainant or his bail. And that, 528 CASES IN THE COURT OF ERRORS. Jackson v. Griswold. upon the coming in and confirmation of the master's report, the defendant Jackson pay to the complainant, or his solicitor, for the use of the bail, if he has not already been indemnified by the complainant, the amount of such excess with interest thereon from the date of the master's report. Neither party is to have costs against the other upon this ap- peal. But as the complainant has succeeded to nearly the whole extent of his claim, I shall give him his costs in the court below, except* so much of his costs as have been pro- duced by his neglect to make Caroline Dunham a party to the suit at the time of filing his bill. And neither party is to have costs as against the other upon the reference hereby directed. A decree having been entered in conformity with the direc- tions thus given, Jackson appealed to this court, where the case was argued by E. Sandford, for the appellant, and J. V. L, Pruyn, for the respondent. COWEN, J. The only question of fact in the case is whether a tender of the money due to Jackson was made in March, 1827, so that he was obliged to re-transfer the stock at that time. The oral evidence was clearly sufficient to make out the fact, if the main witness was to be credited. The court below thought he was ; and there is nothing in the case upon which we should be warranted in coming to a different conclusion upon that evidence. But the same question had been before examined and de- cided in chancery, on a bill filed by Caroline Dunham against Jackson. (See 6 Wend, 22.) Her bill sought an account for 40 of the shares only, which she alleged had been independent- ly pledged to secure the $500 loan. She also claimed an ac- count for the value of the stock at the time of the tender. The defence interposed was, that the 51 shares were pledged to ALBANY, DECEMBER, 1842. 529 Jackson v. Griswold. secure both the $500 and the debt due from Griswold as principal. The proof failing to make out the alleged tender, the decree was, upon that point, against her. It merely allow- ed her the right to redeem, on paying the whole sum reported due both from her and Griswold, with costs. She omitting to make the payment, her bill was dismissed ; and the title to the whole stock thus became vested in Jackson. Griswold was the agent of Caroline Dunham in the prosecution of that suit, and a witness to prove the tender. He also h^ld the relation of her surety for the payment of the 8500, by having given his due bills for that sum. The decree in that cause is set up by Jack- son's answer as a bar to the present suit. It was disallowed by the chancellor ; and whether rightly, presents, I think, the only question calling for much observation. The question is simply, whether a decree or judgment in a suit between the creditor and the principal debtor shall bind the surety for the same debt ; the surety being also agent for the principal in the commencement and conduct of the suit. This question, standing independently of the agency, has re- cently been examined in the supreme court, which held that a mere surety for the payment of a debt, without any agreement, express or implied, to be bound by a suit between the principal parties, is, at Common law, no more affected by its event, if against him, than a mere stranger. (Douglass v. Howland, 24 Wend. 35, 52.) I had occasion there to consider the question on principle and authority, and to show the reason why the civil law holds a different rule. Under this law, the surety has a right of appeal. A decision against him, therefore, would be prima facie evidence. No doubt, as the supreme court held at the last term, in a replevin case, a decision against the debt would discharge him. That, however, is not on the ground that he is a party, but because the judgment or de- cree extinguishes the debt ; and the principal thing being thus destroyed, the incident the obligation of the surety is destroyed with it. The effect is the same as a release by the creditor, or a payment by the debtor, who may do any act in VOL. IV. 67 c '" ' " diMbarge of bis surety, but nothing by which be shall be eluded beyond bis original obligation. A test, somewhat re- sembliog that of the civil law, is furnished by Doyly v. Smith, (2 C'*. C'A. 1 19,) It i there said, that the dismission of a former bill filed by a third person, though involving the same equity with the subsequent bill, is no bar, because the party filing the -latter could not bare bad a bill of review in the first suit, ! ; only difference between thepresentcaseand those cited, lies in the fact, that here it appears the former suit was instituted and conducted throughout by the surety, as the agent for his principal. And be seems to have litigated with great severity ; for there wa an appeal to the court of errors. (Dunham r. Jackton, 6 Wend. 22.) There are certainly many cases where a person, though not a nominal party to the suit, shall yet be concluded by it, because he lias in fact taken the management of the cause ; nay, where ho has had notice of its pendency, ud a chance to litigate, but neglected to do so. A familiar citsu is that of a party holding the mere equitable interest an UMHignee or cestui que trust. So, where he is a guarantor or indemnitor of the party against the consequences of the suit. In the Hrst case he has the right to a standing in court; and, in the latter case, the party to be indemnified is bound to al- low him to come in and manage the litigation, or hazard, by a refusal, the right to recover over. In general, the failure to nmkc n successful defence, on notice to the indemnitor, will be hidden to conclude him, though this is not always so, nor does 'I" ""I'', I .'I'l'" lirinl, (u\n ;my r.isc except Ili;i1 of :i defence. I 1 -*''" 'I"'", 'I" <|iirslnm r. nut In-l \vrni the creditor ;IIK| indciu- nitor, so uiuc.h UN between the Intter and the nominal defen- dant. It in not a case of principal and surety. The indemni- tor in quasi a party in interest, like an assignee j but I am SIU.IM- "I I"' '>'' xvlinv luc.c surely is hound to drfuid, in order to wive himself from injury by a judgment or decree ttguiust his principal, even though he have notice both from the creditor and the principal. It is the business of the latter to ALBANY, DECEMBER, 1842. 53] Jackna . Grwwold. save his surety from all harm. The principal is the indemni- tor ; and, without being personally sued, I do not see upon what ground the surety could claim to defend, as matter of right, for any purpose. The objection is still stronger to his claiming that a suit should be brought in his principal's name to annul or discharge the debt. The direct course is to file a bill, as the surety has here done, in his own name. It follows, that Griswold had no such interest in Caroline Dunham's suit as gave him a right to control it. He was a mere naked agent, his power being liable to revocation at any time. She might have dismissed her bill, or declined to appeal, in despite of Griswold, without deducting from or adding to his right of defence j nor could he, in the language of Doyly \. Smith, have had a bill of review on the decree which passed. Had Griswold volun- tarily come in and litigated as surety, with the consent of Jack- son, in the name of Caroline Dunham, the case might have been a different one. So, if the creditor had served notice on him, and his principal had interposed no obstruction. The su- preme court thought, in Douglass v. Howland, that such a liti- gation would affect the surety. The point, however, was not involved in that case, and the remark was thrown out on the strength of several authorities in neighbouring states which ap- peared to favor the distinction. (24 Wend. 66, 7.) Should the question arise, it may still be open to observation. The case of Willey v. Paulk, (6 Conn. Rep. 74,) was not cited by counsel in Douglass v. Howland, and was overlooked by the court. The learned supreme court of Connecticut there cite the rule of the civil law with approbation, and de- clare it to*be the ground of their decision. The action was against the surety in a probate bond, conditioned, among other things, that the executor should settle the estate according to law. The evidence offered was a judgment against the exec- utor, an execution and demand of payment, which the executor refused to make, though he had assets. The judgment was held to be conclusive. With deference, it seems to me that a 532 CASES IN THE COURT OP ERRORS. Jackson e. Griswold. judgment against the executor and a refusal to pay, the estate having assets, were per se within the terms of the condition. The test of a failure to settle according to law was an unpaid judgment; and the case was, therefore, the same in effect as if the condition had said : " We will abide all judgments that shall be obtained against the executor." Thus the rule of the civil law was brought conventionally into the particular case, as the supreme court admitted it might be in Douglass v. Rowland. In the case of De Forest v. Strong, (8 Conn. Rep. 513,) the surety proved a judgment, execution, levy and set- off of land against the principal, insisting that the judgment was therefore paid. The plaintiff was allowed to prove a sub- sequent suit and recovery against the principal, on the original judgment, in order to repel the evidence of payment. The court held that the latter judgment was pertinent to disprove the fact. It was not necessary in either of the Connecticut cases cited, to say, with the civil law, that the mere relation of principal and surety, in its own nature, subjects the latter, as a party or privy, to the binding effect of a judgment against the principal. The point is by no means free from difficulty ; but, on the whole, I think the decree of the court of chancery was right, and should be affirmed. * , All the members of the court who heard the argument, (ex- cept Senators DIXON and ROOT,) concurring in this resujt, the decree of the chancellor was AFFIRMED. DECISIONS OP CASES AROCKD AT THE SPECIAL TERMS. Matter of WHITNEY, a non-resident debtor. A commission to examine witnesses residing out of the state will not be granted in a proceeding under the statute against an absconding, concealed and non-rest- dent debtor, for the purpose of enabling the debtor to controvert the claims of creditors before the trustees, &c. MOTION for a commission to examine a witness residing in an- other state. Proceedings were instituted before a supreme court commissioner on the application of Shaw, against Whitney, a non-resident debtor, and trustees appointed under the statute. (1 R. S. 764 et seq., 2d ed.) In his application, Shaw claimed that Whitney was indebted to him in the sum of $2500. The trustees gave the usual notice for the creditors of Whitney to deliver their demands to them by the 24th of May, 1842, (Id. p. 799, 8,) and, on the 12th of that month, Whitney gave notice of this motion, intending to controvert the claim of Shaw. (Id. p. .798, 7, subd. 8.) Whitney's affidavit stated, among other things, that he had a good defence on the merits as ad- vised &c., and that J. W. Garnsey, a resident of Tioga, Penn- sylvania, was a material witness &c., without whose testimony he (Whitney) could not safely proceed to a hearing before [533f 534 CASES IN THE SUPREME COURT. Meech v. Calkins. the trustees &c. The officer before whom the proceeding was instituted made his report to this court in April, 1842. W. M. Pattison, for the motion. i D. S. Dickinson^ contra. By the Court j NELSON, Ch. J. The matter in controversy between these parties is not within the statute authorizing the award of a commission to examine witnesses residing out of the state, as there is no action pending in the court and no issue of fact joined. (2 R. S. 393, 11.) The right to the commis- sion depends altogether upon the statute, no such proceeding being known to the common law. (Tidd, 741 ; Francis v. Gilmore, 1 Bos. fy Put. 177 ; 1 rfrchb. 174.) This case is the same in principle as that of Wood v. Howard Ins. Co., (18 Wend. 646.) Motion denied. MEECH vs. CALKINS and others. In an action of debt on bond, the defendant moved for a commission to examine witnesses, with a stay of proceedings until its return, on an affidavit that he had " a good and substantial defence to tile bond" &c. : Held, that the affidavit was defective in not stating a defence on the merits ; and a stay of proceedings was, for this reason, denied. D. Burwellj for the defendants, moved for a commission to examine witnesses residing out of the state, with a stay of pro- ceedings until its return. The action was debt on bond, and the affidavit on which the motion was founded stated that the defendants had " a good and substantiaji defence to the oond," &c. R. W. Peckha 9 for the plaintiff, objected that the affidavit ALBANY, JUNE, 1843. 535 The Bank of Utica w. Root was defective in not alleging that the defendants had a defence on the merits. By the Court, NELSON, Ch. J. The defendants may take a rule for a commission ; but they are not entitled to a stay of proceedings, the affidavit being clearly defective. Ordered accordingly. (a) (a) See Warner v. Harvey, (9 Wend. 444 ;) Seymour't executors v. Strong, (19 id. 98 ;) also ante, p. 64, 5, note, and the cases there cited relating to the form of an affidavit of merits. THE BANK OF UTICA vs. ROOT and others. In verifying a plea in bar concluding to the country under the 1st rule of May term, 1840, an allegation that the defendant has " a full and substantial defence" &c. is not sufficient ; the affidavit should be that the defendant has "tigood and substantial defence" &c., in the language prescribed by the rule. MOTION to set aside default for want of a plea. The suit was upon a promissory note, a copy of which was served with the declaration, together with a notice that the note was the only cause of action on which the plaintiffs relied. The defen- dants interposed a plea of non assumpsitj accompanied by an affidavit that they had fully and fairly stated, &c., and that they had " a full and substantial defence" &c., instead of "a good and substantial defence" &c. as required by rule 1st of May term, 1840. The plaintiffs' attorney returned the plea and affidavit, with notice that they would be disregarded by reason of this defect. No other papers having been served by the de- fendants within the time for pleading, the plaintiffs' attorney caused the defendants' default for want of a plea to be entered. 536 CASES IN THE SUPREME COURT. Wallace v. Bond. D. Burwell, for the defendants. ' . H. H. Martin, for the plaintiffs. By the Court, NELSON, Ch. J. The affidavit was defective in not pursuing- the language of the rule, (22 Wend. 644,)(a), and the motion must therefore be denied. Ordered accordingly. (a) See Fitzburgh v. Truaz, (1 Hill, 944, and note;) also Colder v. Lan- sing, (id. 212 ;) Richmond v. Cowles, (2 id. 359 ;) and the note to Brit tan v. Peabody, ante, p. 64, 5. WALLACE and another vs. BOND and another. Where a motion was made to change the venue from New- York to Livingston county, upon an affidavit of one hundred and sixteen witnesses, and it appeared from the opposing papers that the suit was for a conspiracy hi obtaining goods by false pretences that one of the defendants had declared he wanted the wit- nesses to prove the good character of his co-defendant and that the plaintiff had fifteen witnesses residing in New- York, where the transaction occurred for which the suit was brought t Held, that the motion was evidently an attempted fraud upon the practice of the court, and should therefore be denied, with osta. R. W. Peck/ham, for the defendants, moved to change the venue from the city and county of New- York to the county of Livingston, on an affidavit setting forth the names of one hun- dred and sixteen witnesses residing in the latter county. J. S. Bosworth, for the plaintiffs, read an affidavit stating that the action was for a conspiracy in obtaining goods upon false pretences j that the transaction occurred in the city of New- York ; that one of the defendants had declared he wanted the witnesses named in the moving papers for the purpose of proving the good character of his co-defendant j and that there were ALBANY, JUNE, 1842. 537 Finehout v. Crain. fifteen material witnesses for the plaintiffs residing in the city of New- York. By the Court, NELSON, Ch. J. This motion is evidently an at- tempted fraud upon the practice of the court, and must there- fore be denied, with costs. Ordered accordingly. (a) (a) See the note to Brittan v. Peabody, ante, p. 63, pi. 3 ; also id. p. 68, pi. 8. FINEHOUT vs. GRAIN, sheriff, &c. A summons in replevin need not specify the property sought to "be recovered ; and if it do so, that part of it may be rejected as surplusage. Where, in replevin, several articles of property were described in the writ, but, in consequence of directions given by the plaintiff, a part of them only was seized by the officer ; held, that the plaintiff might nevertheless include the whole in his declaration, and this, though the summons served described the articles seized, without mentioning the residue. REPLEVIN. The writ was for detaining one canal boat and its furniture, two sorrel horses, two brown horses and two sets of double harness, the goods and chattels of the plaintiff. The coroner, by direction of the plaintiff, seized only the canal boat and the two sorrel horses ; and the summons served upon the defendant mentioned no other property than that so actually seized. The coroner returned that he had replevied, taken and delivered .to the plaintiff the boat and sorrel horses, and had served the defendant with a copy of the " annexed summons," which enumerated all the articles of property mentioned in the writ. It appeared by the coroner's affidavit that he inadver- tently neglected to erase from the summons so returned by him, the goods not seized, as was done in the copy served. The plaintiff declared in the detinet for all the property men- tioned in the writ. VOL. IV. 68 538 CASES IN THE SUPREME COURT. Briggs v. Allen. D. Burwell, for the defendant, moved that the plaintiff be ordered to strike out of the declaration such articles of proper- ty as were not seized, so as to make the declaration conform- able to the copy of the summons served upon the defendant. JV. Hill) jr. contra. By the Court, NELSON, Ch. J. The statute does not require that the property should be specified in the summons ; (2 R. S. 524, 9 ; Cutler v. Rathbone, sheriff, fyc. 1 Hill, 204 j) and the description of it contained in the one delivered in this case, may therefore be rejected as surplusage. There is then no irregularity on the face of the papers. The return of the coroner shows that only a part of the goods described in the writ was taken and delivered to the plaintiff ; but this will not prevent him frQm proceeding in respect to the whole of the property, as we held in the recent case of Snow v. Roy, (22 Wend. 602.) Motion denied. BRIGGS vs. ALLEN and another. The statute (2 R. S. 617, 26) giving costs to a defendant where one or more of several issues are determined in his favor, and the others in favor of the plaintiff, applies only to cases in which a verdict is actually rendered for the defendant. Accordingly, where the declaration in an action for libel contained five counts, the third relating exclusively to a charge of mal-practice by the plaintiff as a physi- cian and surgeon, and most of the others relating to the same charge in con- nection with other libellous matter, to the whole of which the defendant pleaded the general issue, accompanied by a notice of justification as to the charge of mal-practice ; and, on the trial, the plaintiff expressly waived all claim for dama- ges on account of such charge, BO that the defendant was precluded from giving evidence under his notice, and the plaintiff obtained a general verdict : Held, that inasmuch as no separate verdict was rendered for the defendant, he was not entitled to the costs of the issue upon the third count. Independently of the above statute, the only consequence of a discontinuance as to ALBANY, JUNE, 1842. BriggB t>. Alton. one count or part of a count, is to deprive the plaintiff of costa upon the matters thus discontinued. Per NELSON, Ch. J. COSTS. The action was for a libel upon Briggs, imputing to him various instances of misconduct, and, among others, mal- practice as physician and surgeon for the Auburn State Prison, in the case of one Van Eck, a prisoner. The declaration con- tained five counts, the third of which related exclusively to the charge of mal-practice. Most of the remaining counts related to that charge also, but connected it with others, sufficient in themselves to sustain the action. The defendants pleaded the general issue, and gave notice that they would prove the truth of what was alleged in the libel respecting the mal-practice in the case of Van Eck. On the trial, the plaintiff's counsel ex- pressly waived all claim to damages upon the third count, and for every thing contained in the libel relating to the case of Van Eck j in consequence of which the defendants were pro- hibited from giving evidence to support their notice of justifi- cation. The defendants did not ask for a verdict in their favor on the third count, and a general verdict was rendered for the plaintiff of $300. J. How, for the defendants, now moved that they be allowed their costs of defence in relation to the third cotmt. He read affi- davits showing the above among other facts, and that the defen- dants had subpoenaed many witnesses, who were in attendance at the trial, for the purpose of supporting the notice of justifi- cation. W. T. Worden, contra. By the Court, NELSON, Ch. J. The case is not within the statute. (2 R. S. 512, 27, subd. 2, 2d ed.) The provision contemplates a verdict for the defendant on the separate count before he is entitled to costs against the plaintiff. Indepen- dently of this section, the only consequence of a nolle prosequ* 540 CASES IN THE SUPREME COURT. Porter v. Mann. as to one count or part of a count in a declaration, is to de- prive the plaintiff of costs upon the matters thus discontinued. (2 Tiddj 888 ; 2 Arch. 281 j Hubbard v. Biggs, 16 East, 129.) Motion denied, (a) (a) See The People v. Feeter, (12 Wend. 480 ;) Wittis v. BatZey, c. (19 Johns. Rep. 268.) POKTER w. MANN. An affidavit to change venue stated that without the testimony of each and every of the witnesses the defendant could not safely proceed to the trial, without add. ing the words, of this cause ; yet, held sufficient. 0. Allen moved to change the venue in this cause on an affidavit of the defendant that the witnesses were each and every of them material &c., and that without the testimony of each and every of them he could not safely proceed to the trial. D. Burwellj for the plaintiff, objected that the affidavit was insufficient in not stating that the defendant could not safely proceed to the trial of this cause. But, BRONSON, J. held the affidavit to be sufficient j saying, that the word " trial" must be understood as referring to the cause in which the affidavit was made. Motion granted, (o) (a) As to the requisites of an affidavit to change venue, see the note to Brittan v Peabody, (ante, p. 64 to 66.) ALBANY, OCTOBER, 1842. 541 Van Hovenburgh o. Case. VAN HOVENBCRGH vs. CASE. When) proceedings instituted under the third section of the non-imprisonment act (Sess. L. '31, p. 396) arc dismissed, the coats, fees and expenses for which the plaintiff is liable to the defendant can in no case be taxed at a sum exceeding ten dollar 8. The statute regulating the fees of attorneys applies only to suits in courts of record ; and hence, such fees are not allowable for conducting summary proceedings be- fore particular officers. Per NELSON, Ch. J. TAXATION of costs. In July, 1842, Van Hovenburgh sued Case in this court, on a demand arising upon contract amounting to upwards of fifty dollars. After the commencement of the suit, proceedings were instituted against the defendant before the recorder of Schenectady, under the " act to abolish impris- onment for debt" &c. j (Sess. Laws o/31, p. 396, 3 to 10 ;) and, after a hearing before that officer, the complaint was dis- missed. The defendant thereupon procured his costs to be taxed, as follows : Attorney's fees, $10. Witnesses' fees and fees for serving subpoena, $17,47. Recorder's fees, $24,37 The plaintiff now moved for a re-taxation. Cochran <$ Rathbun, for the motion. P. Potter j contra. By the Court, NELSON, Ch. J. The non-imprisonment act declares that, where the complaint is dismissed, the party making it " shall be liable for all fees to officers, and for all costs and expenses which the defendant shall have incurred." (Sess. Laws o/'31, p. 401, ^ 22 ; 1 R. S. 812, 22, 2d ed.) By a subsequent act (Sess. Laws of '38, p. 97, 3) it is pro- vided that, " the costs, fees and expenses &c. shall in aJl cases be made out by^tating the particular charges, and be taxed by the officer before whom such proceedings shall be had ; but no counsel, retaining or trial fee, shall be allowed either party ; 42 CASES IN THE SUPREME COURT. Ex parte Wood. nor shall the costs in any case [to] be taxed against the opposite party exceed the sum of ten dollars where the demand claimed by the plaintiff shall exceed fifty dollars, nor more than five dollars where the demand claimed by the plaintiff shall be fifty dollars or less." Upon a fair construction of this statute, I am satisfied that the aggregate amount of costs and expenses taxa- ble against the complainant cannot exceed ten dollars. It seems to be supposed that the amount thus limited was intended to be confined to the fees of attorneys. But I am not aware that attorneys' fees, in a case like the present, can be taxed, or that there is any law authorizing such charges. The fees allowed to attorneys by statute are confined to suits in courts of record. (2 R. S. 526, 18 ; id. 528, 27 j Sess. Laws of '40, p. 327, 1 et seq.) They have never been allow- ed in summary proceedings before particular officers, where the services of an attorney, as such, are not necessary, far any per- son may conduct the proceeding. Motion granted, (a) (a) See Potter v. Richards, (10 Wend. 607.) Ex parte WOOD and others. To entitle a judgment creditor to redeem lands from a purchaser at a sheriff's sale, the judgment in virtue of which the right of redeeming ia claimed must be against the defendant in the writ under which the sale took place, and must also be a lien on the lands sold. Judgments having been obtained against R. wfiich were a lien on his land, he conveyed to P. ; after which executions were issued, and the lands sold by the sheriff to W. P. then conveyed to S., against whom and R. a judgment was obtained by M. within fifteen months from the sheriff's sale, and M. claimed the right to redeem on paying the amount of W.'s bid, together with interest. Held, however, that he was not entitled to redeem. REDEMPTION of lands. Previous to the 26th of Septem- ber, 1840, three judgments were obtained in this court in favor of ALBANY, OCTOBER, 1842. 543 Ex parte Wood. Wood and others, plaintiffs, against Ramsdell, defendant, which judgments were docketed and became liens on the defendant's land in Genesee county. On the day above mentioned, Rams- dell conveyed the said land to Pringle & Moore, and, on the 9th of January thereafter, it -was sold by the sheriff un- der executions issued upon the said judgments, to the plain- tiffs therein. On the first of April following, Pringle & Moore sold a part of the land to Rose j and, on the 6th of Jan- uary, 1842, Mallory obtained a judgment against Rose and Ramsdell before a justice of the peace, and procured the same to be docketed on the next day after its rendition. By virtue of this judgment, Mallory claimed to redeem the land from the sale under the execution, and, on the 9th of April, 1842, paid to the sheriff the amount for which it had been sold, with interest. The sheriff thereupon executed a deed to Mallory, as a redeeming creditor, and refused, after the expi- ration of fifteen months from the day of sale, to execute a deed to the plaintiffs in the execution. This motion was therefore made in their behalf for a mandamus to compel the sheriff to execute and deliver such deeu- Dibble (f Martindale^ for the relators. The judgment under which a creditor may redeem must possess two qualities, viz. 1. It should be a lien on the land ; and 2. It should be against the execution debtor. (2 R. S. 371, $ 51.) Mallory's judgment had neither of these requisites. Ramsdell was a defendant in it, but it was not a lien on the land as against him, for he had conveyed to Pringle and Wood before the judgment was obtained.* And although as against Rose the judgment was a lien on that part of the land which had been previously conveyed to him, yet he was not the individual against whom the execution issued under which the sale took place. Mallory was not, therefore, in a position which would enable him to redeem as a creditor of either Ramsdell or Rose. B. Pringle) contra. 544 CASES IN THE SUPREME COURT. Ex parte Paddock. By the Court, NELSON, Ch. J. I am of opinion the counsel for the relators are right in their exposition of the statute, and the motion must therefore be granted. Ordered accordingly. Ex parte PADDOCK. A person under whose execution lands have been sold is not authorized to redeem in virtue of the judgment on which the execution issued either from the purcha- ser or a creditor; and this, though no part of the proceeds of the sale were re- alized upon his execution, but were wholly exhausted by other and prior execu- tions under which the property was sold at the same time. REDEMPTION of lands. On the 30th of December, 1840, two lots of land belonging to W. & M. R. Prince were sold by the sheriff of Queens county on six writs of fi. fa.. The lots were sold separately, and were both bid off by Peck and two others. On payment of the purchase money the sheriff .executed a certificate of sale in the usual form, describing the executions on which the lots were sold as follows : Four in favor of the New-York Dry Dock Company against W. & M. R. Prince, tested in May, 1839, "being the oldest and first in hand" one in favor of the Hartford and New-Haven Rail Road Company, against the same defendants, tested in July, 1839, and one in favor of the Branch Bank of the state of Alabama, against the same defendants, tested No- vember 4th, 1839. The lands were s"old for a sain less than the amount of the judgments in favor of the Dry Dock compa- ny. On the 15th of November, 1839, Paddock obtained a judgment against the same defendants, and, on the 30th of March, 1842, the land not having been redeemed within a year from the sale, he paid to the sheriff the amount of the pur- chase money received by him from Peck and others, with in- ALBANY, OCTOBER, 1843. 545 Ex parto Paddock. terest, and claimed to be entitled to a deed of the land. The judgment in favor of the Hartford and New-Haven Rail Road Company, which was recovered in July, 1839, was assigned to Peck and others (ihe purchasers) before the month of Octo- ber, 1840 ; and, on the same day that Paddock made the afore- said payment to the sheriff, Peck and others, as such assignees, refunded the same, and insisted that the sheriff was bound to execute to them a deed of the lands sold by him in virtue of the said executions. The sheriff declined executing a deed to either Paddock or the purchasers, being in doubt as to who was entitled thereto. This motion was therefore made, in be- half of Paddock, for a mandamus to compel the sheriff to exe- cute a deed to him. Edmonds 8f Buckham^ for the motion. C. V. S. Kane, contra. By the Court j NELSON, Ch. J. As the judgment of which Peck and others are assignees is older than the one in fayor of Paddock, the former would be entitled -to a deed from the sheriff were it. not that their execution is one of those under which the sale was made. The statute provides, that " the plaintiff under whose execution any real estate shall have been sold, shall not be authorized to acquire the title of the origi- nal purchaser, or of any creditor, to the premises so sold by virtue of the decree or judgment on which such execution is- sued." (2 R. S. 373, 58.) It is insisted in behalf of the assignees of the judgment, that their right to a deed is not af- fected by the statute, inasmuch as no part of the purchase mo- ney was applied on their judgment. But the statute is ex- plicit, and contains no exception in favor of such a case. In order to have secured the payment of the judgment, the pur- chasers should have bid more for the land ; or, if they had de- sired a deed from the sheriff, they should have withdrawn their VOL. IV. 69 546 CASES IN THE SUPREME COURT. Dockstader v. Sammons. execution before the sale, and thus put themselves in a situa- tion to demand the deed on refunding the purchase money paid by a junior judgment creditor. Motion granted. DOCKSTADER vs. SAMMONS. Though a public officer against whom a judgment has been obtained for an act done by virtue of his office brings error and reverses the judgment, he is not en- titled to double costs upon the writ of error. DOUBLE costs. Dockstader, a constable, having taken certain goods in execution, Sammons brought replevin for them in the Montgomery C. P., and recovered judgment. Dockstader sued out a writ of error, whereupon this court reversed the judgment ; and now 5. Stevensj for the plaintiff in error, moved for double costs upon the writ of error, on the ground that the suit was for an act done by the plaintiff in error (the defendant below) in virtue of his office as constable. JV. Hill, Jr. contra. COWEN, J. I am of opinion that the statute relating to double costs in suits against public officers (2 .ft. S. 617, 24, subd. 1) does not apply to a case of this kind. The provision is, that double costs may be recovered by the defendant, where judgment is rendered in his favor upon verdict, demurrer, writ of error &c. Here the plaintiff in error not the defendant asks for double costs. My recollection is that this question was passed upon by the court some time ago. J. W. Jenkins, (ut amicus curia,) observed, that a similar ALBANY, FEBRUARY, 1848. 547 Barber v. The West Stockbridge Rail Road Company. motion was made In the case of Harp v. Stuart about three years since, and denied. COWEN, J. That is probably the case to which I referred. I think it was submitted to all the judges in consultation, and that we concurred in denying the motion for the reasons al- ready stated. Motion denied. BARBEE vs. THE WEST STOCKBRIDGE RAIL ROAD COMPANY. A charge for drawing and copying a bill of particulars is not taxable in suits com- menced since the act of May 14th, 1840. So as to a charge for a copy of the pleadings to be used by referees, the cause having been referred. RE-TAXATION of costs. The suit was commenced after the act of May 14th, 1840 (Sess. L. '40, p. 327) went into effect, and the plaintiff obtained a report of referees in his favor. The following items were charged and allowed by the taxing officer, viz. "Dr. bill of particulars, delivered in pursuance of a judge's order, $2,50 : Two copies, $3,00 : Copy pleadings for referees, $3,00." The defendant's counsel having objected be- fore the officer to the allowance of these charges, now moved for a re-taxation. JVf. T. Reynolds, for the motion. JV. Hill, Jr., contra. By the Court, COWEN, J. We think the charges objected to were improperly allowed by the taxing officer. The act of 1840 (Sess. Laws of '40, p. 327) contains no provision allow- ing compensation for such services. Motion granted. 548 CASES IN THE SUPREME COURT. Wood t. Crowner. WOOD vs. CROWNEB. An affidavit on which to move for a reference, must, in general, be made by the party, and not the attorney. Otherwise, if a sufficient excuse appear for dispensing with the affidavit of the party. Semble. B. R. Wood, for the plaintiff, moved for a reference on an affidavit sufficient in all respects except that it was sworn to by the attorney, and furnished no reason why it was not made by the party. Whereupon, D. Burwell, contra, objected that the affidavit was insuffi- cient. By the Court, COWEN, J. The affidavit should have been made by the plaintiff, or a sufficient excuse given for the omis- sion. The motion must be denied. Ordered accordingly, (a) (o) As to affidavits on which to move for or oppose a change of venue, see the note to Brittan v. Peabody, (ante, p. 64, pi. 4 ; p. 69, pi. 9.) And see Bird and others v. Moore and others, (3 Hill, 447,) as to affidavits on which to move for judgment as in case of non-suit. ALBANY, FEBRUARY, 1843. 549 Mill* T. Lee. MILLS vs. LEE and others. In actions ex contraetu, a separate verdict in favor of one of several defendants, though grounded on his discharge as a bankrupt, will not render him competent to testify for his co-defendants. MOTION to set aside inquest and subsequent proceedings. Mills sued Wells, N. P. Lee and W. M. Lee on a promissory note. Wells and N. P. Lee pleaded non-assumpsit, and the latter gave notice of his discharge as a bankrupt since the ma- king of the note. W. M. Lee suffered default to be entered against him for want of a plea. At the circuit. Wells moved to put off the trial of the cause on an affidavit that his co-de- fendant, N. P. Lee, was a material witness &c., that he was ab- sent from the state, and that he had been discharged as a bank- rupt. The judge denied the motion, for the reason that N. P. Lee if present, could not be used as a witness for his co-de- fendant, and that even a verdict in his favor grounded on his bankrupt discharge would not render him competent. No affi- davit of merits having been filed, an inquest was taken against Wells, which he now moved to set aside. ' S. Stevens, for the motion. S. J. Cowen, contra. By the Court, COWEN, J. The judge was clearly right in refusing to postpone the cause. There can be no doubt that, in actions ex contractu, a verdict in favor of one of several de- fendants, though on the ground of bankruptcy, will not render him a competent witness for his co-defendant. (3 Hill, 106, 7, note, and the cases there cited.) 550 CASES IN THE SUPREME COURT. Cowles v. Coster. COWLES VS. COSTEB. Where a replication was filed and served, to which the defendant interposed a rejoinder ; held, that the plaintiff had no right to file and serve an amended re- plication of course, and that, having done so, the defendant might treat it as a nullity. AMENDMENT. The plaintiff filed and served a copy of his replication on the llth of October last, with notice to rejoin. The defendant rejoined on the 21st of November. Nearly two months after, the plaintiff filed and served an amended replica- tion as of course, with notice to rejoin. This the defendant's attorney refused to receive ; and a motion was now made to set it aside as irregular, on the ground that, by the 23d rule authorizing amendments of course, no pleading subsequent to the declaration is thus amendable after it has been answered. H. H. Martin , for the motion, cited Bleecker v. Bellinger, (11 Wend. 179.) i , contra, cited Grah: Pr. 657, 2d ed. By the Court, COWEN, J. The 23d, rule is that, after plea, either party may, before default for nut answering shall be en- tered, amend the pleading to be answered. The rule does not extend to a pleading already answered. But there was no need of this Tnotion. The course for the defendant was to treat the amended replication as a nullity. Motion denied. ALBANY, FEBRUARY, 1843. Hughes t>. Bywater. HUGHES vs. BYWATEB. Where a bond of submission to arbitrators contained a stipulation that, in case the award was not paid or fulfilled, judgment for the penalty of the bond might be forthwith entered up in the supreme court ; held, that the prevailing party was at liberty to perfect judgment in vacation immediately after the award, without a special motion to the court. JUDGMENT on award. The parties signed and sealed a gen- eral submission of their differences to three arbitrators, who made an award in favor of Hughes. Upon this, judgment was immediately perfected in vacation, (a rule of course being entered,) pursuant to the following stipulation contained in the instrument of submission : " It is hereby mutually agreed that, in case the said award is not paid or fulfilled ac- cording to the terms of this agreement, by the person who shall be bound to pay or perform the said award, a judgment in the supreme court of judicature of the people of the state of New York, for the above penalty of $200, shall be forth- with entered up ; and that an execution holding the body of the defendant, in case he has not personal property sufficient to satisfy said award, shall be forthwith issued on said judg- ment." W. M. Allen, for the defendant, moved to set aside the award and subsequent proceedings on affidavits detailing the above facts, and others, tending, as he urged, to impeach the proceedings of the -arbitrators. He insisted, especially, that no judgment could be entered except on motion, pursuant to the provisions of 2 R. S. 447, 448, 9, 14, 2d ed. He cited Anonymous, (5 Wend. 102 j) Anonymous, (6 id. 520 j) Wells v. Lain, (15 id. 99, 103 ;) Farrington v. Hamblin, (12 id. 212 j) Emmett v. Hoyt, (17 id. 410.) W. F. Mien, contra, insisted that the affidavits failed to im- peach the award on the merits j and to this 552 CASES IN THE SUPREME COURT. Hughes v. Bywater. Co WEN, J. agreed, and said the only question fairly arising in the case was as to the regularity of the judgment. On this question the counsel cited Farrington v. Hamblin, (12 Wend. 212 ;) Yates v. Russell, (17 John. R. 461, 465.) By the Court, Co WEN, J. If a party will confess a judgment upon an award or any other instrument, or will authorize an- other to do so in his name, I know of nothing either in the common or statute law to disable him. Judgments are every day entered on warrants of attorney without special motion, and the stipulation in this instrument of submission is the same thing as if it had expressly authorized the entry of judgment by an attorney. It is virtually saying to the plaintiff, " if the award be against me, I waive my right to insist on a special motion." The statute requiring that step was for the defen- dant's benefit ; and he might, therefore, waive it. An agree- ment to arbitrate discontinues a cause. Yet the defendant may confess judgment upon the award ; and shall not then be heard to allege irregularity. Consent that judgment should be en- tered was held to bind him in Yates v. Russell, (17 JoAn. 461,) and Farrington v. Hamblin, (12 Wend. 212.) These cases were no more than the present a consent that judgment should follow the award. This consent derived no strength from the fact that suits had been brought ; for the proceeding was out of the cause. Such consent is an authority to do whatever is necessary to effect the object of the stipulation ; among other things, to appear for the defendant, or retain an attorney to ap- pear for him. He thus gives jurisdiction over his person with- out formal process ; and the court already has, by law, juris- diction of the subject matter. I am aware of no rule disabling a man to provide that judgment may be entered on a cause of action to arise infuturo, any more than upon a cause subsisting at the time. Again, the plaintiff is authorized to take his judgment by the ALBANY, FEBRUARY, 1843. 553 Hughes r. Bywater. defendant's own agreement, who should therefore be holden estopped to question it. He has led the plaintiff to rely on a judgment of course, and the latter may be injured, indeed must be to a certain extent, if we set the judgment aside. The cases I have cited therefore held the defendants to the judgment on the ground of estoppel, among other grounds. This was es- pecially adverted to in Yates v. Russell. I am aware that another statute has manifested some degree of jealousy against summary confessions of judgment, by re- quiring that the warrant should be on a separate sheet j (1 R. L. 501, 5 ; 2 R. S. 283, 10, 2d ed. ;) but this proceeding is not questioned upon that statute, nor was it deemed applica- ble in the cases cited. The ctse is not one of a general war- rant of attorney, but comes under the head of arbitration and judgment a statute mode of determining controversies with the same effect as an ordinary suit. Strictly, it must be carried on in a prescribed form j among others, a motion in court. So in ordinary suits, certain formalities are necessary ; but the de- fendant may waive any of them, even the most important, a trial for instance ; and, by himself or another duly authorized, consent to the judgment in a form less cautious. No rule of general policy forbids it more in the amicable suit by arbitra- tion, than in any other. Motion denied. VOL. IV. 70 554 CASES IN THE SUPREME COURT. Gould v. Root. GOULD and others vs. ROOT and others. If an order of a judge or commissioner be revoked by him, a subsequent ap- plication to another commissioner, in reference to the same matter, and in the same stage of the proceedings, is irregular ; for a revocation is in effect the same thing as an original refusal. The order of a judge or commissioner cannot be treated as a nullity on the mere ground of its having been improperly or even fraudulently obtained ; the remedy of the party in such case being by appeal, motion to supersede, application to revoke &c. After notice of hearing before referees had been given by the plaintiff, the defen- dant obtained an order staying proceedings till a motion for a commission could be made to a circuit judge; the motion ^being noticed for a day subsequent to that appointed for the hearing. The order was afterwards revoked, on the plain- tiffs application, and notice thereof given to the defendant's attorney, who there- upon applied to a commissioner residing in another county, and obtained an or der staying proceedings for the purpose of moving the court to set aside the or- der of revocation. The plaintiff's attorney treated the commissioner's order as a nullity, proceeded to a hearing of the cause, and obtained a report in his favor. Held, on the defendant's motion to set aside the report, that though the order of the commissioner was irregular, the plaintiff had no right to treat it as a nullity ; and the motion was therefore granted, but without costs. MOTION, in behalf of the defendants, to set aside a report of referees in favor of the plaintiffs. The motion was made on the ground, (inter alia) that the plaintiffs had proceeded to a hearing and report contrary to a commissioner's order staying proceedings. The venue was laid in the city and county of New-York, the defendants residing in Herkimer county. The cause was, at the last December special term, referred to ref- erees in New-York ; and, on the 19th of December, the plain- tiffs' attorney gave notice of hearing for the 3d of January. On the 23d of December, the defendants made an affidavit upon which to move for a commission on the 14th day of January, before GRI'DLEY, C. Judge, and obtained an order from the first judge of Oneida county, dated the 23d, staying proceed- ings till the motion should be made. This being served on the plaintiffs' attorney, he, on the 27th of December, applied ALBANY, FEBRUARY, 1843. 555 Gould t. Root to the first judge, who, on the ground of laches by the defen- dants, made an order revoking the order to stay. On receiv- ing notice of the revocation, and upon an affidavit of the above facts, the defendants' attorneys applied to a supreme court commissioner in Herkimer county, who, on the 29th of De- cember, made an order staying the plaintiffs' proceedings until a motion could be made at the present term to set aside the order of revocation. This order of the commissioner was serv- ed, with notice of motion, on the 31st of December. The plaintiffs' attorney disregarded the order of the 29th as a nulli- ty, proceeded to a hearing before the referees, and obtained a report, which . D. Burwell now moved to set aside on the ground of irregu- larity. He also moved for a commission, the original motion for that purpose having been denied by Judge Gridley. On an affidavit of merits, he also moved to be let in on terms should the court be against him on the question of regularity. J. W. Jenkins , contra. By the Court, COWEN, J. Under the circumstances, I feel no inclination to relieve the defendants on the ground of mer- its. Upon the facts disclosed, I entertain no doubt that the first judge was right in revoking the order to stay the proceed- ings ; nor that the subsequent order obtained from the com- missioner was irregular. The only question is, whether it was a nullity. The statute declares that the order being refused in whole or in part, no subsequent application in reference to the same matter and in the same stage of the proceedings shall be made to any other supreme court commissioner ; and if an or- der be made by the latter, it shall be revoked by him or by a justice of this court Or circuit judge, on due proof of the facts. (2 R. S. 209, 210, 27, 2d ed.) Section twenty-eight forbids a second application under a penalty. To say that an order may be thus obtained under pretence of an appeal from 556 CASES IN THE SUPREME COURT. Gould v. Root. or a motion to set aside the order of revocation, would let in the means of evading' the statute. A revocation is, in effect, the same thing as an original refusal. Must such an irregular and evasive order be obeyed till it is revoked 1 Revocation is the remedy to which the statute looks, in terms ; and there is great question whether, in prin- ciple, the course here taken was warranted. The only cases in which the statute authorizes a total disregard of the order are specified in the 25th and 26th sections. (2 R. S. 209, 2d ed.) And I am not aware of any principle which authorizes a party to treat an order as a nonentity merely because a commission- er is forbidden to grant it or a party is forbidden to apply for it. It may be said of every order improvidently granted that the party and officer have done what the law has forbidden. To say that it has been fraudulently and collusively obtained is no more. But to allow as a consequence that it may there- fore be disregarded, would be letting in a principle under which every judicial act might be questioned collaterally. The remedy is by direct proceeding, which, in the case of or- ders, is revocation, appeal, motion to supersede, &c. (See Jack- son, ex dem. Dox, v. Jackson, 3 Cowen, 73 j Lyon v. Burtis, 4 id. 538 ; Case v. Shepherd, 1 John. Cas. 245 ; Wright v. Stevenson,5 Taunt. 850.) (a) Until this is taken, or the order expires by its own limitation, the party must submit to it. This we held in Starr v. Francis, (22 Wend. 633,) a case no way distinguishable from the present on principle. In doing so we did but follow out the rule long ago settled by the courts at Westminster Hall. In Rex v. Wilkes, (4 Burr. 2-571,) Yates, J. said, " The order of a judge is subject to an appeal to the court ; but if acquiesced under, it is as valid as any act of the court ;" though, to enforce it by attachment, it must first be made a rule of court. He added, " the validity of a judge's order can be impeached in only two ways ; either by appealing to the court to set it aside j or, if made in vaca- (a) See Hart v. Butterfield, (3 HUl, 455.) ALBANY, FEBRUARY, 1843. 557 Gould r. Root tion, by applying at the next term to set aside the proceedings that have been had under it." (Mansfield, C. J. in Wood v. Plant, 1 Taunt. 47, S. P.) This effect of an order, and the remedy when it has been improperly granted, was recognized here in Roosevelt v. Gardinier, (2 Cowen, 463, 4.) We often allow the fraudulent act of the party or his agents, done for the purpose of delaying the cause, to be treated as nullities. (Anonymous, 22 Wend. 619 ; Bank of Buffalo v. Lowry, id. 630.) (a) But fraud, even by the party, in obtaining a judicial decision, is another matter. If inter alios, it may be impeach- ed collaterally. A familiar instance is a judgment confessed to defraud creditors. But the reason for that has no applica- tion to any judicial act, interlocutory or final, between parties to a pending cause. With regard to orders especially, con- sidering the summary remedies at hand revocations by com- missioners, and motions at the special terms, which under our system are of very frequent*recurrence no great delay can in general arise from holding the party- to the ordinary reme- dy. These orders are exceedingly numerous ; and if we per- mit them to be disregarded in the hope that a case of evasion or fraud may be shown, parties will often take their chance with the advantage they enjoy of an ex parte case resting on opposing affidavits. . The general force of such orders will be greatly weakened. A new, inconvenient and unsafe mode of litigation will be opened. Among other things, we shall be continually asked to infer fraud from the weakness of the case made out before the commissioner. Such things are proper in the direct method ; but we cannot allow that the party shall bring an appeal to himself, and cast the onus of appealing from his own decision to us, upon his adversary. The motion to set aside the report is granted, but without costs. The motion for a commission is also granted ; but that is not to operate as a stay of proceedings. Rule accordingly. (6) See Anonymout, (ante, p. 56.) 558 CASES IN THE SUPREME COURT. Ex parte Green & Brown. Ex parte GREEN & BROWN. Superindendent 1 ' of the poor are not bound to audit the accounts of physicians and others for services rendered to county paupers by request of the overseers of the poor of the several towns ; and this, though the services were rendered in pur- euance of orders for temporary relief. It is the duty of the overseers to adjust such accounts and charge them in their bills against the county. The employment of a physician by the superintendents of the poor of a county does not supersede the right of the overseers of the several towns to employ other physicians to attend county paupers entitled to temporary relief. Semble ; per COWEN, J. THE relators, who were physicians, had, at the request of an overseer of the poor of the town of Little Falls, in Herkimer county, rendered professional services to several paupers, some of whom were entitled to temporary relief pursuant to orders obtained for that purpose under 1 JR. *S. 633, 46, 2d ed. The distinction between town and county poor did not, at the time, exist in Herkimer. The relators presented their accounts to the superintendents of the poor of the county, who refused to audit them ; and, as to some of them, would not receive and take them into their consideration, even where the services were duly rendered pursuant to the order of a justice of the peace. The refusal of the superintendents was put upon the ground that they had themselves employed a physician to act in all cases. M. T. Reynolds, for the relators, moved for a mandamus commanding the superintendents to audit. D. Burwell, contra. By the Court, COWEN, J. It is unnecessary to say whether the employment of a physician by the superintendents super- seded the right of the overseers of the poor to employ other ALBANY, FEBRUARY, 1843. 559 Grave* t>. Woodbury. physicians in local cases arising under the 46th section of the statute j (1 R. S. 633, 2d ed. j) though it strikes me not. However that may be, I think it entirely clear that the super- intendents are bound to do no more under that section than audit the account of the overseer himself against the county, for any sum paid or contracted to be paid by him. The 62d section, (id. p. 636,) requiring the superintendents to audit and allow all accounts of overseers of the poor, justices of the peace and all other persons, for services relating to the support, relief or transportation of county paupers, can have full ope- ration without requiring the audit and allowance of accounts in favor of individuals dealing with the overseers in the several towns. Such accounts may be very numerous, and occasional- ly very trifling j and it is peculiarly fit that they should first be adjusted by the overseer, and charged by him in general ac- counL Motion denied. J. GRAVES vs. WOODBURY. J. & D. GRAVES vs. WOODBURY. 11 A. recover judgment against C., and the latter obtain judgment against A. and B., a set-off may be ordered on the application of A., notwithstanding the ob- jection that the parties to both records arc not identical Per COWEN, J. The order will be made though it appear that the judgment in C.'B favor has been assigned to a third person, for a valuable consideration, and without notice of the existence of the other judgment. Per COWEN, J. Otherwise, however, if the right of set-off did not exist at the time of the assign, merit Accordingly, A. having recovered judgment against C\ a suit was commenced by A. and B. against C., which was referred ; and, a short time before the making of the referee's report, which fonnd a large balance due to C., but after the referee had heard the matter and C. had ascertained what the report would bo, he assigned the demand to D. for a valuable consideration, and judgment WM duly perfected upon the report : Held, that A. was not entitled to a set-off, ina*. much as no such right existed when the assignment waa made ; the judgment in C.'s favor having been perfected afterwards. 560 CASES IN THE SUPREME COURT. 2BB Graves v. Woodbury. SET-OFF of judgments. In the first entitled cause the plain- tiff obtained judgment for $1562,75 on the 2d of July, 1838. In the other cause, judgment was rendered for the defendant on the report of a referee for $1235,49 on the 7th of Novem- ber, 1842. Jacob and Daniel Graves were partners, having a joint interest in the subject matter of the second suit ; but, be- fore the commencement of the action, the partnership was dis- solved under an agreement that J. Graves should take all the assets and discharge all the debts and liabilities of the firm. Woodbury, the defendant, was insolvent. The report of the referee in the last entitled cause was made in the spring of 1839, the demand having been immediately before assigned, for a valuable consideration, to J. O. Pettingal. It appeared by the affidavit of J. Graves that the assignment to Pettingal was made after the referee had expressed his opinion, but be- fore the signing of the report. It did not appear when notice of the assignment was given to J. Graves. JR. Haight, for J. Graves, moved to set off so much of the first judgment as would be sufficient to discharge the other. He cited Grah. Prac. 347 to 349, 2d ed. S. J. Cowen, in behalf of Pettingal, the assignee, cited Barb, on Set-off, 34, 38 j Ramsey's appeal, (2 Watts, 228, 230.) By the Court, COWEN, J. Jacob Graves being creditor in a judgment against Woodbury, and debtor in a judgment recover- ed by Woodbury, presents the usual case for a set-off ; and it is no objection that the latter judgment is against Jacob Graves and another jointly. (Simson v. Hart, 14 John. 63, 75, and the cases there cited.} It is my duty, therefore, to direct a per- petual stay of Woodbury's execution on Graves' entering satis- faction upon his judgment for so much as the judgment against him and Daniel Graves amounts to, unless Pettingal has ac- quired such a right to the latter judgment as entitles him to object. That he purchased and took an assignment of this ALBANY, FEBRUARY, 1843. 561 t Graves t>. Woodbury. jadgment for a valuable consideration, even without notice, would form no objection, if the right of set-off existed at the time ; for an assignee takes subject to all equitable as well as legal defences which can be urged against the assignor. (Coop- er \. Bigalow, 1 Cowen, 56, 206.) The case of Ramsey^* op- peal (2 Watts, 228, 230) is referred to as holding a different rule ; but we must follow the case cited from my reports, until we can be brought to see that it was an obvious departure from principle* So far from that, it accords with the general doc- trine. There is no pretence here that Pettingal wanted notice of Jacob Graves' judgment when the assignment was executed j and if Graves' right of set-off had then attached, as against the assignor, the case is identical with that of Cooper v. Bigalow. I am inclined to think, however, that, under the peculiar cir- cumstances of this case, no right of set-off in any form had at- tached at the time of the assignment. Clearly no legal right un- der the statute existed, for the dejbt due to Jacob Graves severally could not be allowed to compensate a debt due from him and an- other jointly. (Mont, on Set-off , 23.) His own demand alone was in judgment. Had Woodbury's been also in judgment when he assigned, a right to set off would have arisen independently of the statute, on the doctrine peculiar to setting off judgments, under which the courts have not been exact in requiring the mutual debts to be due to and from the same number of per- sons. The right thus to depart from the general rule, howev- er, never arises till judgment is actually entered on both sides. Here, according to Jacob Graves' own affidavit, the demand against him and Daniel was assigned to Pettingal even before the referee had signed his report of the balance due. At that time, there could be no pretence of a right to move summarily for the set-off. (Ex part e Bagg, 10 Wend. 615 j People v. Judges of Delaware C. P., 6 Cotoen,598.) Though the referee had ex- pressed his opinion, neither of the parties nor even the referee himself was concluded. But it would have been the same thing if the report had been signed. It was still open to revision, if erro- neous, on. the motion of either party. It was but prima facit VOL. IV. 71 562 CASES IN THE SUPREME COURT. Graves . Woodbury. , evidence of the debt, like the judgment in 6 Cowen, ut supra. In Garrick v. Jones^ (2 Dowl. Pr. Cas. 157,) the party mov- ing had obtained a verdict, which he sought to set off against a judgment in favor of his adversary. The motion was denied on the sole ground that final judgment had not been obtained. (See also Johnson v. Lakeman^id. 646.) It follows that Pettingal purchased a demand against which no right of set-off existed at the time ; and Graves has not shown that he suffered any thing for want of immediate notice of the assignment, if there was such want of notice, which he does not aver. When Pentingal, some years after, perfected the judgment, the demand then for the first time came into a shape which would have subjected it to a set-off; but then, by motion only, even if the right had still continued in Woodbury. Legally and formally it did continue in hiai ; but he had parted with all his equitable right ; nothing existed ; nothing arose which could be objected against the Woodbury claim when he assigned it ; and the judgment upon which the set-off is sought to be raised, was equitably in favor of the assignee. In an equi- table sense there never was any judgment in favor of Wood- bury j therefore nothing to which Graves could oppose his de- mand. The case is, I think, within the principle of Hackett v. Connettj (2 Edw. F. Ch. Rep. 73.) There, the defendant had a> demand against the complainant, which was incapable of be- ing countervailed by a set-off, because such demand was unli- quidated. Pending suit, he assigned it to Alcock, who obtain- ed judgment ; whereupon the complainant filed his bill to compel a set-off of the judgment against previous decrees for costs in his favor on the dismissal of bills filed by Connett. Vice Chancellor M'Coun held that the assignee having taken the demand before any right to set off the decrees existed, had acquired a claim paramount to that of the assignor; and, on that ground, denied the relief prayed for. It is true, that no- tice of the assignment was, in that case, immediately, and be- fore judgment obtained, given to the complainant. But the only object of such a notice is, to put the debtor on his guard ALBANY, FEBRUARY, 1843. 553 . Paine t. Chase. against dealing with the assignor or perhaps obtaining other demands against him on the belief that he still continues the equitable owner. Could it be made apparent that Graves has ' suffered any injury for want of notice, the question would be different. Pettingal seems to have fairly obtained an assignment as an indemnity against liabilities for Woodbury, amounting to some- thing near if not quite the balance reported due from J. & D. Graves ; and, under the circumstances, I think he is entitled to collect that balance by execution, notwithstanding the cross judgment in favor of Jacob Graves. Motion denied. PAINE vs. CHASE and others. Where, in a suit against the maker and endorsers of a promissory note, one of the defendants suffered judgment by default, and the others pleaded the general issue ; held, that the plaintiff was not at liberty to sever as to the latter and proceed to trial against one only. MOTION to set aside inquest. The action was against Chase, Tracy, McClary and Bigelow, and was commenced by declara- tion containing the common money counts. A notice was at- tached to the declaration stating that the suit was instituted to recover the amount due on a promissory note made by Chase and endorsed by the other defendants. Chase and Tracy plead- ed the general issue, and Bigelow suffered judgment by de- fault. Notice of trial and inquest was served for the Seneca circuit in November, which was afterwards countermanded as to/ Tracy, and an inquest taken against Chase only. Chase's counsel objected that an inquest could not regularly be taken against him alone ; but the circuit judge overruled the ob- jection. JV. Hill, Jr., for the motion, said the act of 1836, p. 248> 564 CASES IN THE SUPREME COURT. Ez parto Ketchum- 2, on which the plaintiff must rely, gave the right to sever in two cases only : 1. Where the trial is put off by some of 'the defendants j and 2. Where a default is obtained against some of the defendants. In either case, the plaintiff is to pro- ceed in respect to the other parties as if the suit had been com- menced against them alone. S. J. Cowen, contra, cited Bank of Genesee v. Field, (19 Wend, 643.) By the Courlj COWEN, J. It is not denied that judgment by default was properly taken against Bigelow. By the second alternative of the second section of the statute, (Sess. L. 1835, p. 248,) on his suffering a default, the plaintiff was entitled to go on against him alone ; in other words, to sever, and go to a trial as to the other parties that is, all of such parties. Then the other alternative is, that if the trial be put off" by any of the parties, the plaintiff may try as to the others. The cause was not so put off. There is no third alternative on which the plaintiff could sever at the trial, as he did in this case. He was irregular. ^ Motion granted. Ex parte KETCHUM, Public Adm'r of the City of New- York, Jn order to warrant this court in granting a rule against a person the disobedience to which would be a contempt, he must not only be an officer of the court or a party to a suit or proceeding therein, but he must be so in respect to the particu- lar wrong which he is ordered by the rule to repair. Per COWEN, J. Accordingly, where an attorney of the superior court of the city of New- York, who was also an attorney of this court, was retained to defend a suit pending in the former, and, in consequence of such retainer, received certain moneys be- longing to his client ; held, that this court had no power to grant a rule requir- ing the attorney to pay over the money, but that the matter belonged exclusively to the superior court. ALBANY, FEBRUARY, 1843. 5(55 Ex parte Kctchum. MOTION for a rule that Kursheedt, an attorney of this court, pay over to the relator certain moneys which were alleged to have been received by him as attorney for G. A. Humbert, deceased, the administration of whose estate belonged to the relator. Sometime before Humbert's death, he was arrested in the city of New-York, and held to bail in the sum of $4000 in an action of trover commenced in the superior court of that city. One Boker became his bail and Humbert left with him a note of $2000 as security. At the request of Humbert's agent, Boker deposited in a bank in the city $2613,54 in cash, belonging to Humbert, to the joint account of Boker and Kursheedt, who was retained and acted in the cause as Humbert's attorney on record. The mo- ney thus deposited was intended as a further'indemnity to Boker against his liability as bail. In the spring of 1841, this money was drawn out of the bank on the suggestion of Kursheedt, and $2000 invested by him in treasury notes, which he held in trust for Boker's indemnity. Humbert dying in Switzerland, where he resided, Kursheedt told Boker he was discharged as bail, and expressed an intention to send the money to Humbert's father. He got the treasury notes cashed, but declined to pay the money over to the relator unless certain charges were allowed to an amount which the relator thought too high. Jl. Taber, for the relator, cited Ex parte Staats, 4 Cowen, 76, and note ; Grah. Pr. 55 j 2 R. S. 440, 1, 2d. ed. G. R. J. Bowdoin, contra. By the Court, COWEN, J. It is difficult to see any reason against a rule that Kursheedt should pay the balance due from him to Humbert's estate out of the avails of the treasury notes. Nor do I understand that he refuses to do so. The dispute re- lates to the amount of his charges. The power to determine that dispute on motion belongs, I think, exclusively to the superior court, as an attorney of which Kursheedt was acting. It was in consequence of his retainer as an attorney of that 566 CASES IN THE SUPREME COURT. Ex parte Ketchum. court, and the confidence reposed in him as such by Humbert or his agent, that he was enabled to obtain the money. It makes no difference that he is also an attorney licensed by this court. The imputed default did not arise in the course of his practice here, or as a consequence of his license here. We cannot see that such license furnished any reason for the retain- er, beyond that of the superior court. I admit there may be cases where an attorney of this and other courts receiving money under an agency having no par- ticular reference to a suit here, might be attached by this court for non-payment, on the principle that he was retained in respect to his professional character. That would leave room for in- ferring that, had he not been an attorney of this court he would not have been so retained. But such an inference is excluded where the retainer was in a suit already brought and pending in another court. It is impossible then to say that he is in de- fault as an attorney of this court, which I take it we must see before we have authority to punish him by attachment. We might about as well attempt to punish a man for professional misbehavior in conducting a suit or defence in the court of a neighboring state, as to interfere on this motion. Suppose the attorney of a county court to be guilty of the plainest miscon- duct, the mutilation of a record for instance, no one would suppose that we could issue process of contempt because he happened at the same time to be an attorney of this court. To warrant a rule against a person, the disobedience to which would be a contempt, he must not only be a party or officer of the court, but he must be so in respect to the particular wrong which he is ordered by the rule to repair. Motion denied. ALBANY, FEBRUARY, 1843. 557 Vermilyea c. Rogers. VEHMILYEA vs. ROGERS. The second section of the act to prevent usury (Sen. L. of '37, p. 487) was in- tended to give the defendant the right to insist on a personal examination of the plaintiff at the trial ; and the latter ought not to be allowed, by absenting him self from the state, to compel the defendant to resort to a commission. Per COWEN J. Whether a commission .may issue for the purpose of examining the plaintiff, in such case, quere. Where the plaintiff was temporarily absent from the state, so that he could not be served with a subpoena, and neglected to attend the circuit at which the cause was set down for trial, notwithstanding a notice to his attorney requiring such attendance, held, that the circuit judge might, in his discretion, make a general order postponing the trial till the plaintiff should appear, especially as there was reason to suspect he remained absent with a view of evading a personal ex- amination. BROXSON, J. dissented. The granting or refusing of a motion for postponement at the circuit is within the discretion of the judge, and his decision ought not, in general, to bo interfered with. Per COWEN, J. STAYING proceedings till the plaintiff attend as a witness. In debt on bond, the defendant interposed and verified by affi- davit a plea of usury, giving notice to the plaintiff's attorney that he should require his (the plaintiff's) attendance as a wit- ness at the circuit in New- York in March 1841, where the venue was laid. The plaintiff not attending in pursuance of the notice, the judge put off the cause. It was afterwards no- ticed for trial at each successive circuit, but was postponed for the same cause ; and was reached on the calendar at the two circuits previous to the last. At this circuit, an order was made by the circuit judge delaying the trial till the plaintiff should personally appear, or until further order, &c. The plaintiff was all this time in London, and the judge made the order on the ground that the defendant was entitled to insist on the per- sonal attendance of the plaintiff at the trial ; though the plain- tiff 's counsel contended that the defendant had a right to ex- amine the plaintiff under a commission. The judge held that 568 CASES IN THE SUPREME COURT. Vermilyea . Rogers. a commission could not issue. The plaintiff also offered to show by certain proceedings in chancery, and other circumstan- ces, that the application to postpone was not with a reasonable expectation of obtaining material evidence from the examina- tion of the plaintiff; but the judge decided that he could not look into such proceedings. On the part of the defendant it was shown that the plaintiff did not reside in England, but in the city of New-York, and was only temporarily absent ; that the amount in controversy was large, and that the plaintiff was alone interested. It now appeared that the plaintiff was expected to return to his residence in New-York in a short time. A, Taber, for the plaintiff, moved to vacate the judge's or- der, citing Sess. Laws of 1837, p. 487, 2 ; 2 R. S. 315, 19, 2d ed. G. M. Speir, contra, cited Bosworth v. Perhamus, (20 Wend. 611.) He denied that the court had power to grant a com- mission. By the Court, COWEN, J. It is scarcely necessary to deny, in order to justify the judge's course, that a commission might have been issued. In authorizing the defendant to demand his adver- sary's oath, the statute intended effectually to enlarge his means of proof. We cannot impute to it a promise of the plaintiff's tes- timony ; and at the same time an intent that he may absent himself from the state at such convenient period as he shall choose to commence his suit, and put off the defendant with a commission. If he take one, of what value will it be ? On its reaching London, the plaintiff has perhaps gone to Paris, and on following him there, he has departed for Rome. The large amount here in controversy (more than $19,000) would defray the expense of such evasions through a large series and for a good while. But if he remain at London, what law is shown to us that would there compel him to testify ? He is a party j ALBANY, FEBRUARY, 1843. 559 Vermilyca t>. Rogers. but if otherwise, I know not of any process which would com- pel his attendance before commissioners ; or, if there be such, and it is no more efficient than our own, he could afford to pay the penalty of refusing to appear. In some of the European nations, the government, I believe, will not allow commission- ers to examine even a voluntary witness without our first ask- ing its permission. Suppose the plaintiff had gone into New- Jersey to remain while this suit was pending, the same argu- ments against delay would come with the same force. He controls the time of trial, and is most deeply interested, if the defendant's plea and oath be true, to evade testifying at all, and especially upon the stand where he can be cross-examined. It is not without some weight that the defendant may desire an appeal to the fear of temporal punishment if the plaintiff should testify falsely. This would be lost, perhaps entirely, by an examination abroad. Suppose the plaintiff had spirited away a material witness for the defendant, would the judge be bound to take for answer that the witness might be pursued by a commission ? Would he not rather be bound to postpone the trial, with costs to be paid by the plaintiff? I said in Bos- worth v. PerhamuSj (20 Wend. 611,) in respect to a case some- what similar to the present, that the judge has a discretion. It was no more than what has been said a thousand times of an application to put off a trial for want of testimony. He al* ways has a discretion in such a case, with which we ought not in general to interfere perhaps never in the case at bar ob- viously not. The cause has been repeatedly postponed, being as many times noticed for trial by the plaintiff, until we are now informed that the necessities of his business will probably bring him home in a short time, say this winter or next spring. Yet we find his counsel stoutly resisting a motion made last November circuit to put off the cause, on the ground that a commission should have gone. Very likely the judge felt a suspicion that the plaintiff was keeping away from his business because he was afraid of being subpoenaed if the cause should not be pressed through before his arrival. VOL. IV. 72 570 CASES IN THE SUPREME COURT. Culver v. Green. It is suggested, and a belief expressed in one of the affida- vits, that the plaintiff is sick. If a witness be so much indis- posed that he will probably be unable to attend at one circuit, it is always an excuse for putting off the trial till the next j and, on a strong and clear case like the present, it is by no means, an abuse of discretion to postpone the trial generally till he shall attend. BRONSON, J. dissented. Motion denied. (a) (a) See Rapelye v. Prince, (ante, p. 119.) CULVER vs. GREEN and others. The sureties in a bond given upon appeal from a justice's judgment, pursuant to 2 R. S. 259, 189, cannot be made liable beyond the amount of the penalty, though the judgment recovered by the appellee in the common pleas exceed that amount. In an action on such bond, proceedings against the sureties will be stayed on their paying into court the amount of the penalty with costs. THE plaintiff recovered judgment in a justice's court against McDonald, who appealed to the common pleas. The appeal bond was executed by McDonald as principal and by Green and Miles as sureties. Afterwards, this suit was commenced against all the obligors in the bond, the plaintiff declaring in debt for $300, and averring the rendition of a judgment in his favor, on the appeal, of $207,69. A motion was now made in behalf of the sureties for an order staying proceedings as against them on their paying into court $100 (the penalty of the bond) and costs. JV*. Hill, Jr. for the motion, insisted that the sureties could not be made liable for more than the penalty of the bond. He ALBANY, FEBRUARY, 1843. 571 Culver c. Green. cited 2 R. S. 187, 189, 2d ed.; id. 191, 223 ; Sess. Laws of 1824, p. 296, 39 ; Oshiel v. DeGraw, (6 CWen, 63 j) C/arA: v. .BtwA, (3 id. 151.) S. Stevens, contra, conceded that, as a general rule, no more than the penalty of a bond could be recovered against a sure- ty. He contended, however, that this case was an exception. The statute (2 R. S. 191, 223, 224, 2d ed.) provides that, on the execution being returned unsatisfied, the appellee may recover in an action on the appeal bond, as damages, the amount remaining due and unsatisfied on such execution. This differs from the language of the old act under which the case in 6 Cowen was decided. (Sess. Laws of 1824, ch. 238, $ 39.) That act gave the appellee the right to prosecute &c. for the recovery of the amount of such judgment and costs. It did not define what the plaintiff might recover ; whereas the pres- ent statute declares that he may recover as damages &c. the amount due. If the form of action adopted in this case be such as to pre- clude a recovery beyond the penalty of the bond, the court will allow the plaintiff to amend by declaring in covenant. By the Court, COWEN, J. The difference between the old and new statute lies in words which express the same thing in substance. The old act was, that the appellee might prosecute for the recovery of the amount. This would have been idle, if it did not mean he should in fact recover it. The revised statutes provide that he may recover as damages the amount remaining due fyc. The former act was taken with the quali- fication, as against the sureties, arising from the nature of the transaction, viz. with the proviso that the amount did not ex- ceed the penalty. The present statute must be read in the same way. Motion granted. 572 CASES IN THE SUPREME COURT. Ez parte Reed. Ex parte REED. The condition of a sheriff's bond docs not extend beyond nonfeasance or misfea. sance in respect to acts which he is required to perform officially. The party moving for leave to prosecute such bond must show affirmatively that the sheriff has been guilty of some default or misconduct in his office. Accordingly, where the papers on which the motion was made showed only that the sheriff had failed to satisfy a judgment recovered against him in trespass for seizing the relator's goods under a fi. fa., and that on the trial of the cause the sheriff attempted to justify under the writ ; held, that these facts were not evidence of the seizure having been made virtute officii, and the motion was therefore denied. Whether the motion would have been granted had it been shown that the original seizure was lawful, and that the judgment was recovered by reason of the sher-. iff having rendered himself a trespasser ab initio, Q.UERE. The cases of Carmack v. The Commonwealth, (5 Binn. 184,) and Commonwealth v. Stockton, (5 Monroe, 192,) commented on and questioned. i R. W. Peckham moved for leave to prosecute the official bond of M. B. Hart, sheriff of the city and county of New- York. The motion was founded on affidavits stating that a judgment in trespass had been recovered against Hart, for the seizure (by his deputy) of the relator's goods under a fi. fa. ; that the judgment had not been satisfied, and that, on the trial of the cause, Hart attempted to justify the seizure as sheriff. The bond was in the form prescribed by statute, (1 R. S. 378, ^ 67,) the condition being that Hart should "well and faithfully in all things perform and execute the office of sheriff of the said city &c., during his continuance in said office &c., without fraud, deceit or oppression." S. Stevens, contra, objected that the sureties were not lia- ble ; the wrong done by the sheriff not being within the words of the condition. By the Court, COWEN, J. The condition is, that Hart shall perform and execute the office &c. ; not that he shall avoid the commission of wrongs generally. The words cannot be ex- ALBANY, FEBRUARY, 1843. 573 Ex parte Reed. tended beyond nonfeasance or misfeasance in respect to acts which by law he is required to perform as sheriff. Here the sureties are sought to be fixed with the consequences of a trespass having no connection with his office, any more than an assault without a warrant of arrest. The charge of a trespass assumes that the act could not have been virtute offi- cii. It is no more the act of a sheriff because done colore ojfi- ciij than if he had been destitute of process. To allow a pros- ecution, would be equivalent to saying that the sureties of a sheriff are bound for his general good behaviour as a citizen. How it would be were the original seizure lawful, but the sheriff a trespasser ab initio by reason of subsequently abusing his authority, we are not called upon to enquire. (See per Gold- thwaite, /., in The Governor v. Hancock, 2 Alaba. Rep. 730.) It is the business of the relator on moving for leave to prose- ecute the bond, to show us that the sheriff has been guilty of some default or misconduct in his office. (2 R. S. 390, 1, 2d ed.) All the relator does show is, that the sheriff has been sued for a trespass which he attempted and failed to justify by virtue of a.fi.fa. For aught that appears, the act might have been a wanton or malicious wrong for which replevin or any other ac- tion would have lain against the sheriff. Applications like the present have, I presume, been uniformly denied. This was at least so of Ex parte Martin, lately moved before the chief jus- tice, (MS. Oct. Term, 1842 ;) and I have been induced farther to consider the present case for the single reason that a differ- ent doctrine was some years ago held by the supreme court of Pennsylvania, (Carmack v. The Commonwealth, 5 Binn. 184,) and perhaps also by the court of appeals in Kentucky j (Com- monwealth v. Stockton, 5 Monr. 192 ;) though, for aught that the latter case discloses, the decision might have turned on some- thing peculiar in the words of the condition. In Carmack v. The Commonwealth, the learned judges admitted the necessity of showing that the seizure of A.'s goods by a sheriff, under a fi.fa. against B., was an omission faithfully to execute and per- form the trust and duty to his office lawfully appertaining. 574 CASES IN THE SUPREME COURT. Ex parte Reed. For aught I know, other courts may, in the office of construing the words before us, have arrived at a similar conclusion. But I presume it is no where asserted that the words extend in their natural import to an act done under the mere pretence or color of authority, when there is in fact none. There being no authority, there is no office, and nothing official. This is a rule which ranges through all the gradations of legal power from the monarch to the constable. The statutes restricting venues and requiring notice before suit brought in cases of acts done by virtue of or in the execution of certain offices, have been extended to those done colore officii, upon consideration of that protection against harrassing litigation which is due to officers falling into mistakes while acting in good faith, Even that has been doubted with us. (See Seeley v. Birdsall, 15 John. 267,269, 270 ; but see 1 Chit. PI. 272, Jim. ed. of 1841, Tidffs Pr. 29, 9th Lond. ed., contra.} The courts say that, un- less the acts be thus extended, they would be nugatory. (Strait v. Gee, 2 Stark. R. 445, 448 ; Bird v. Gunston, 2 Chit. R. 459, 461.) All this, I admit, may well be said by way of enlarging such remedial statutes. Yet it is still going beyond the words. It is extending them by construction. The Pennsylvania statute, the Kentcky statute and our own, or the words of condition in bonds drawn up under them, might be equally extended, if the principle of the cases cited and others of a like character could be applied. It may be admitted that, so far as the bond is concerned, the respective liabilities of the sheriff and his sureties are co-extensive. I suppose they are ; but neither go beyond the obligation to perform and exe- cute the office well and faithfully. (1 R. S. 371, 78, 2d ed. ) The words are significant and operative for the purpose of obliging the sheriff to act properly in all those things which come within the scope of his power and duty. In their ut- most meaning, they import nothing beyond. Reasons of poli- cy were urged by the judges in Carmack v. The Commonwealth, and seem to have had some influence in TJie Commonwealth v. Stockton. Among others, the want of a property qualification in ALBANY, FEBRUARY, 1843. 575 Ez partc Reed. herifFs, the expense of the canvass for the office, their frequent poverty and ultimate insolvency. These may furnish an argu- ment for the legislature requiring another form of security j but they do not strike us as furnishing sufficient ground for im- puting an obligation beyond what the parties have expressed. If, as supposed by Ch. J. Tilghman, the act, though illegal, was done in the execution of the sheriff's office, we agree that the obligors would be liable. Our difficulty lies in predicating official conduct of an act for which the sheriff is held liable because he transcends the bounds of his office. A trespass is certainly not a faithful performance of the office, or any per- formance at all. It is the same thing as if he should cut wood on his neighbor's premises to repair his fences. Where is the limit of the argument, if it be extended to any kind of acts with which his office and process have no connection ? It seems to us that it may as well be carried to trespasses out of his county or out of the state. The learned court of Kentucky think the condition should embrace every act for which the sheriff would be answerable if done by his bailiff. The maxim of respondent superior has certainly been carried farther in such case than the general doctrine of principal and agent or master and servant will war- rant. We have here, however, another case in which policy gives a larger effect to the power or deputation than its exact language will warrant. No authority is given by the sheriff to commit a trespass ; and yet the arrest of a stranger or a seizure of his goods colore officii is imputed to the sheriff. It cannot be, however, that this is on the ground of omission faithfully to execute and perform his office. The case goes on the ad- mission that the wrong is a naked trespass, which it could not be if it lay in the line of official performance. The remedy for not faithfully performing is an action on the case j at any rate, not trespass for the original act. The late case of The Governor v. Hancock (2 Alabama Rep. 728,) held that on words like those before us the oblige tion of the sureties did not extend to a fraud by the sher- 576 CASES IN THE SUPREME COURT. Ex parto Rccd. iff, who, after he had attached property, induced the plaintiff to assign her judgment to him by a false representation as to the condition of the property. Yet here would seem to have been an act coming nearer to the violation of official duty than the one under consideration. The question is not free from difficulty ; but we think that, to warrant a recovery on the words of this condition, it is incumbent on the relator to show that his demand against the sheriff is for some default in a matter transacted by him in virtue of his office, or for the omission of some act which as sheriff it was his duty to perform. This the relator would have to show on the trial. It was held in Carmack v. The Commonwealth, that the record in the suit against the sheriff would not conclude in an action on the bond ; indeed, that the relator must show a good cause of action against the sheriff, independently of the recovery against him. With us, it would seem that this re- covery can be received as proving nothing beyond rem ipsam, if it be admissible at all. (See 2 R. S. 390, 2d. ed.) At any rate, we are not warranted by the statute in granting leave to prosecute the bond, unless the motion be sustained by proof of a subsisting and unsatisfied claim within the terms of the condi- tion. This proof, we are of opinion, has not been furnished; and that the motion must therefore be denied. The denial is, however, without costs. Rule accordingly. ALBANY, FEBRUARY, 1848. 577 Bertbelon c. BctU. BEBTHELON vs. BETTS. Where a debtor IB proceeded against by warrant under the third and subsequent sections of the non-imprisonment act, (Sew. L. of '31, p, 396,) and obtains a dis- charge pursuant to the seventeenth section, the assignment enures only to the benefit of the creditor on whose application the proceeding was instituted, and not to the benefit of creditors generally. Per COWEN, J. That part of the act authorizing a debtor to be thus proceeded against is not an in. solvent law, a.id therefore was not suspended by the act of congress in relation to bankruptcy passed August 19th, 1841. A decree of bankruptcy in cases of voluntary application does not relate back so as to affect a previous transfer of the bankrupt's property made in intitum to satisfy an individual debt ; and this, though the transfer took place after the filing of the petition. Accordingly, where the petition was filed on the 25th of August, 1842, and five days afterwards the petitioner was ordered to make an assignment under the seventeenth section of the non-imprisonment act, which he accordingly did on the same day, and obtained a decree for his discharge as a bankrupt in Septem- ber following ; held, that the creditor in the non-imprisonment proceeding was entitled to have his debt satisfied out of the proceeds of the property assigned therein, notwithstanding the claim of the assignee in bankruptcy. BANKRUPT act. On the 28th of July, 1842, the plaintiff instituted proceedings against the defendant, before the recor- der of the city of Albany, to obtain satisfaction of a judgment in the manner prescribed by the non-imprisonment act. (Sess. Laws of 1837, p. 396, 3 et seq.) An execution had been pre- viously issued and returned unsatisfied. After a hearing before the recorder, he directed a commitment of the defendant unless he complied with the provisions of the 10th sec- tion of the act ; and a bond was thereupon given, conditioned that the defendant would, within thirty days, apply for an as- signment of his property &c. A petition was afterwards (August 25th,) presented to the recorder, in conformity to the condition of the bond, and, on the 30th of August, 1842, a general assignment of all the defendant's estate was ordered to be made to one Valentine. An assignment was accordingly made on the same day, under which the assignee realized more VOL. IV. 73 578 CASES IN THE SUPREME COURT. Berthelon r. Belts. than sufficient to satisfy the plaintiff's judgment and the costs of the proceedings before the recorder. A motion was there- fore now made for an order that the assignee pay to the plain- tiff's attorney a sum sufficient to satisfy the said judgment and costs. In opposition to the motion it appeared that, on the 22d of August, 1842, the defendant signed and verified his petition for a discharge under the " act to establish a uniform system of bankruptcy throughout the United States," passed August 19th, 1841 ; that the petition was presented to the district judge on the 25th of August ; that a decree of bankruptcy was made on the 19th of September following ; and that a dis- charge was granted on the 6th of February, 1843. The as- signee in bankruptcy claimed that he was entitled to all the effects of the defendant at the time of presenting his petition to the district judge. P. Gansevoort, for the motion, cited Sess. Laws of 1831, p. 398, 10, subd. 4 ; id. p. 400, 18, 19 j 1 R. S. 789, 791, 15, 2d ed. ; Pract. Directions, fyc. under the JVbn Imp. Act, Pamph. p. 15 ; 2 R. S. 803, 36, sub. 4, 2d ed.; The People v. Mel, (3 Hill, 109.) A. Taber, for the assignee in bankruptcy, said the decree re- lated back to the time of filing the bankrupt's petition, and en- titled the assignee to all the property belonging to the bank- rupt at that time. (Dictum of Conkling, J. in Matter oj Rust-) MS. decided Dec. 1842.) The defendant had not, up to that time, any lien on the fund in question, admitting the existence of a right to proceed as the plaintiff has done since the bank- rupt act was passed. But this act suspended the right to pro- ceed under all state insolvent laws. (Earned case, 5 Law Re- porter, 117, and the cases there cited.} By the Court, COWEN, J. The bonajides of the proceedings before the recorder and the assignment of the 30th of August ALBANY, FEBRUARY, 1843. Bcrthclon r. Bette. are not questioned. Indeed, so far from these being intended as a fraud against the proceedings in bankruptcy, the inference would rather be that the main design of resorting to the latter was to defeat the plaintiff's remedy under the non-imprison- ment act. Therefore, if the law under which the plaintiff as- sumed to proceed be a subsisting one, and the doctrine of rela- tion does not apply, the motion should be granted. Whether the non-imprisonment act ( 10 subd. 4) be an insolvent law within the meaning of Earned case, (5 Law Re- porter, 117,) and other cases referred to on the argument, de- pends upon the purpose and object of the statute. When the learned judges of the United States say that the bankrupt law has effaced or suspended all state insolvent laws, they certainly cannot mean a statute for the more effectual appropriation of a debtor's property to satisfy an individual debt. Such a con- struction would subvert all judgments and executions for debts, which are always against insolvents, and are creatures of an insolvent law, if these words be taken in their broadest sense. ( Vide 2 Bell's Conim. 162.) Clearly, therefore, our insolvent laws are no farther suspended than they seek, upon notorious grounds, to seize and distribute the effects of the debtor among his creditors generally. Such is not the effect of that branch of the non-imprisonment law now in question. It refers to Art. 6th of the revised statutes concerning voluntary assignments by impjisoned debtors, following out, in the main, such details as are there prescribed, and finally, it is true, directing a dividend; but this cannot, in the nature of things, nor indeed by the pro- visions of the statute, be extended beyond the particular credi- tor or creditors by whom the debtor is pursued. We have always understood the provisions in question as no more than a statute execution against choses in action and> other effects not tangible by the ordinary fi. fa. The statute gives the creditor or creditors certain process by which he or they may coerce the payment of a debt or debts for which the debtor has been prosecuted. (The People ex rel. Noble v. Abel, 3 Hill, 109, 112 ; Pract. Directions, Sfc. under thtffon Imp. Act, 80 GASES IN THE SUPREME COURT. Berthelon v. Belts. Pamph. p. 15.) We accordingly, at the last January term, on a prisoner being brought up for discharge under the 6th article, granted the motion, notwithstanding the objection that our insolvent laws are all suspended. Looking at the United States statute as we should to a state insolvent law and, when applied to voluntary applicants, it is no more we then have a general cessio bonorum indeed j but one which, in its own nature, and according to the general, not to say universal rule of construction, can have no effect as of a time prior to the decree by which it was effected. Such a construction would leave the assignment to Valentine untouched. Nor do I per- ceive that the doctrine of relation declared in 13 Eliz. ch. 7, 2, and continued in the subsequent bankrupt laws of England, is expressly enacted by the U. S. bankrupt law. If applicable, however, whether by enactment or construction, it is decisive against the present motion. (See Balme v. Hutton, 1 Cromp. 4r Mees. 262, 269, 270 ; Cooper v. Chitty, 1 Burr. 20, 30, 31, 1 Keny. Rep. 395, 417, 418, S. C.- } Price v. Helyar, 1 Moore if Payne, 541, 552, 4 Bing. 597, S. C.) Here was neither a right of lien in the plaintiff, nor was the interest of the defendant divested until the assignment of the 30th of August made pursuant to the order of the recorder. Five days before, (August 25th,) the petition in bankruptcy was lodged in the U. S. district court. This was, no doubt, an act of bankruptcy ; perhaps the only act which can be re- cognized as such under the voluntary branch of the statute. (See St. 6 Geo. 4, ch. 16, 6.) Upon the best consideration, however, which I have been able to give the question, I have failed to discover any principle in our statute of bankruptcy, or in the nature of the case, by wlhich the legislature can be un- derstood to have intended a relation covering property of the bankrupt which he did not own at the time of the bankrupt assignment, excepting such as he might have fraudulently transferred contrary to the express provisions of the second section, or, at most, voluntarily transferred within the time there mentioned, the transfer being bona Jide. Independently of ALBANY, FEBRUARY, 1849. 581 Ex partc Fleming. these provisions, I understand the act as indicating quite clearly that the bankrupt assignment shall have no greater effect than any other general transfer. That it is a bankrupt act, certainly implies no relation. This is plain, not only from the necessity of expressly declaring the doctrine in the English statutes j but from the well known construction which has always been given to our insolvent laws. These are, effectually, but bank- rupt laws under another name. In this view of the matter too, I find myself confirmed by Mr. Bicknell, (Bickn. on Bankrupt- cy^ p. 38, 2d ed.) and the observations of Judge Battle. (Ex parte Ziegenfuss, 2 IredelPs JV. Car. Rep. 463, 468, 9.) No case was cited on the argument as holding the contrary. In the absence of a clear decision by the United States court de- claring that a transfer of a debtor's property in invitumj made to satisfy his debt and made bonafide, prior to a decree declar- ing the debtor a bankrupt, shall be overreached by such a de- cree, I feel no serious difficulty in saying that the former trans- fer should prevail. The result is that thfs motion must be granted. Ordered accordingly. Ex parte FLEMING and another. This court will not interfere by mandamus to compel a ministerial officer to diw bey an injunction, unless it appear to be plainly void for want of jurisdiction. Accordingly, where a judge, acting under the non-imprisonment act, (Sets. Laic* of '31, p- 396, 3 ft aeq.,) made out a warrant to commit the defendant pursu- ant to the 9th section, but, being afterwards served with an injunction from the district court of the United States restraining further proceedings in the matter, refused to deliver the warrant to be executed; held, that this court would not compel the delivery by mandamus, no want of jurisdiction in respect to the in- junction appearing. The court will not enquire, in such case, whether the injunction was issued im. providently. Semble, that an injunction to restrain the execution of a sentence for crime mmy be treated as a nullity. Per COWEN, J. 582 CASES IN THE SUPREME COURT. Ex parte Fleming. The proceeding contemplated by the 3d section of the non-imprisonment act is of a civil and not a criminal nature. Per COWEN, J. A mandamus is a prerogative writ which this court may issue or withhold in its discretion. Per COWEN, J. MOTION for mandamus. Proceedings were instituted against one Williams, by Fleming and Remington, Before G. Law- rence, first judge of the Onondaga C. P., to compel satisfac- tion of a judgment against Williams in the manner prescribed by the non-imprisonment act. (Sess. Laws of 1831, p. 396, 3 et seq.) After a hearing, the judge decided that Williams was guilty of fraud within the 2d and 3d subdivisions of the 4th section of the act, and determined to commit him in de- fault of a compliance with the terms of the 10th section. Williams refused to comply, and the judge drew up and sign- ed a warrant of commitment, which, however, he refused to deliver, on the ground that he had been served with an injunc- tion from the district court of the United States restraining further proceedings. The injunction was directed to " Robert Fleming," (one of the parties to the proceeding before the judge,) " and to his agents, counsellors, attorneys, and other officers acting under him or by his direction, and each and ev- ery of them." A motion was now made in behalf of Fleming and Remington for a mandamus commanding the judge to de- liver the warrant. JL. Fleming, for the motion, cited Townsend v. Monellj (10 Wend. 577,) and Spencer v. Hilton, (id. 608.) By the Court) COWEN, J. It is certainly impossible for me, on the case stated, to see expressly that this injunction was prop- erly issued ; but it is not my duty to enquire whether it was or not. I am not prepared to deny that, under circumstances, it might have been properly issued ; but if I were, it is enough to know that Judge Conkling has power to issue and enforce the process of injunction like any other chancellor. If it has im- providently issued, I am bound to suppose that he will set it ALBANY, FEBRUARY, 1843. Ex parte Fleming. aside on motion. He having jurisdiction, it is the same thing to me as if it had issued from the court of chancery of this state. Before I should be warranted in compelling a ministerial officer to disregard it, I must be satisfied, in the strong language of counsel, that the ordering of the writ was a mere act of usurpation ; in other words, that Judge Conkling wanted juris- diction over the subject matter ; for it is not made a question that he has it over the process and over every person residing in his district. The injunction recites that the proceeding be- fore Judge Lawrence is contrary to equity ; and if it did not, I am bound to presume in favor of a court having jurisdiction over matters of equity, that the judge has considered and act- ed on such a matter. I am therefore called upon to order the doing of an act by Judge Lawrence which would be in direct violation of a valid injunction, and subject him to punishment accordingly. It is true that courts of law do not hold themselves restrained by injunction from proceeding j(o) nor should any officer be thus restrained while acting as a judge. But no court ought to compel either parties or ministerial officers to put themselves in positive conflict with the order or writ of another court. (Burt v. Mapes, I Hill, 649, 651.) It is said that the proceeding before Judge Lawrence was to convict of a crime and punish it ; and that a court of equity has no jurisdiction over a criminal matter. It may be conce- ded that an injunction against an execution for a simple crime would be a nullity. But no one can doubt that the main ob- ject of the statute is the same as that of the old law in giving a ca. sa. It is to compel payment by means of property which a fi. fa. cannot reach. The great point is the civil remedy. (10 Wend. 611 ; Berthelon v. Belts, ante, p. 577.) Beside, the mandamus is a prerogative writ which we have power to issue or withhold according to our discretion ; and, (a) See Kelly T. Cowing, (ante, p. 266.) 584 CASES IN THE SUPREME COURT. Nelson v. Sharp. independently of other questions, it would be very indiscreet to place the judge between two fires, as we should do by grant- ing this motion. Motion denied. NELSON vs. SHARP. Evidence of a parol agreement is in general inadmissible to qualify a sealed in- * Etrument, or to show a defeasance different from that which the instrument itself expresses. Per COWEN, J. The practice in this state of receiving parol evidence that an absolute deed was in- tended as a mortgage, ought not to extended. Per COWEN, J. Where a defendant moved to set aside a judgment entered up on bond and warrant of attorney, on the ground that the latter were given hi consideration of a promise by the plaintiff to make certain advances of money thereafter, which he had wholly failed to do ; held, that the promise being a sufficient consideration to up- hold the judgment, the defendant's remedy was by action for a breach of it, and the motion was therefore denied. Even had the arrangement as to the advance of money been in the nature of a defea sance, yet, resting in parol merely, it could not have been set up as a ground for interfering with the judgment. Per COWEN, J. MOTION to set aside a judgment confessed on bond and war- rant of attorney ; or for a rule that satisfaction be entered. Judgment was perfected April 1st, 1840, on a bond in the penal- ty of $3000, conditioned for the payment of money. Neither the bond nor warrant of attorney, nor any writing between the parties, declared the purpose for which the bond was given or the judgment confessed to be other than for the payment of money. But the defendant made affidavit that, in fact, the ob- ject was to secure the plaintiff against moneys which he prom- ised to advance in order to redeem certain lands sold under ex- ecutions against the defendant ; but which he had wholly failed to do. The plaintiff's affidavit, on the contrary, stated that the object was to secure him against certain moneys thereto- fore advanced and then yet to be advanced for the board of the defendant and his wife, and for other objects. Various affida- ALBANY, FEBRUARY, 1843. 595 Nelson t. Sharp. vits were read on both sides tending to confirm or rebut the af- fidavits of the respective parties. It also appeared that, on the 4th of June, 1842, upon accounting, the defendant was found in- debted to the plaintiff in a balance of $766,22, for moneys had and received and advanced. This the defendant now admitted to be due ; but insisted that these moneys had no connection with the judgment. The plaintiff claimed a right to collect that sum by execution, besides costs. L. H. Sandford, for the defendant. 5. JV/. Woodruff", contra. By the Court, COWEN, J. It is impossible for me to reduce the claim of this plaintiff below the balance struck between the parties upon their accounting in 1842 j and I can do so much only because the plaintiff agrees that this is the sum due from the defendant. Independently of that, I know not of any principle on which I could cut down the sum below the amount in the sealed condition of the bond. No fraud, duress, infancy, usury or the like, is pretended as the reason why a money bond, with a warrant of attorney, was given without the usual precaution of qualifying it by a sealed declaration, in or out of the condition, that it was for a purpose other than that which the condition expresses. It is not necessary to enquire whether this be essential in order to affect the judgment on a bond and warrant of attorney, though I must not be considered as admitting that a bond becomes any weaker and more open to an attack by parol evidence, because it is carried into judg- ment. If not, it certainly follows that, in order to overcome the language of the instrument, there should be a writing of equal degree filed and made matter of record with the other papers which go into the clerk's office as a foundation for the judgment. This would seem to be especially important where an estoppel by judgment is added to that of the bond. The motion is not made by creditors, who, I admit, might complain VOL. IV. 74 586 CASES IN THE SUPREME COURT. Nelson v. Sharp. that they were defrauded, and claim to be let into an enquiry concerning the true consideration upon that ground. The ob- jection is made by the defendant, who comes to set up a parol defeasance of his bond and judgment, and to establish it by his own affidavit. I called on the argument for a case in which such a thing was ever allowed, None has been fur- nished. I do not deny that a cotemporaneous writing, sealed by the parties, though not filed, might have done ; as the courts formerly received a deed to lead the uses of a fine. But even this, I apprehend, must be. set down as an exception. I am reminded of the anomalous practice in this state of receiving parol evidence that an absolute deed was intended as a mort- gage. This too is an exception, which should not be extended. There is difficulty enough in its standing alone. I know oi neither principle nor practice to take the present case out of the general rule, which is, that, to qualify a sealed instrument or show a defeasance different from what the instrument itself contains, the party shall be put to show another writing be- tween the same parties also under seal. In short, the defea- sance must be of equal dignity with the principal paper. I have looked through the cases for setting aside warrants of attorney in Bingham on Judgments. They are all either of personal disability, or where the warrant was actually or con- structively involuntary, or where the consideration was im- peachable as being illegal or immoral ; in short, where the court saw that the bond might be effectually destroyed or va- ried in the regular course of an action. But who ever heard, in such case, of a court allowing the interpolation of a parol defeasance ; in other words, parol evidence to contradict the language of a specialty 1 Under the provisions of the revised statutes, we might now perhaps set aside the judgment to let in a defence founded upon a partial or total want of consideration. I mean the pro- visions which allow a defence on this ground upon its being pleaded, the same as if it were a simple contract. What I have said thus far, however, I desire should be ta- ALBANY, FEBRUARY, 1843. 5557 Nelson r. Sharp. ken for no more than a refusal to concede what appeared to me on the argument, and still appears, from the degree of ex- amination I have bestowed upon the question, to have been the assumption of a facility of attack on judgments confessed, be- yond what is warranted either by principle or authority. The motion must, I think, be denied on other grounds. Were I to receive the opposing evidence, and were I convinced that the balance between the conflicting affidavits and proofs is in favor of the defendant's version of the matter, to what would it amount ? To no more than that, in consideration of a judgment, the plaintiff promised to do a certain thing, which he has omitted. He has broken his parol promise, to which I am required to give the effect of a defeasance, without its being in its own nature any such thing. The obvious legal remedy is an action. Here is neither condition nor fraud j but only a breach of promise. Why set aside the judgment 1 To let in a trial upon the bond. Why do that when the defendant himself admits there was a consideration the plaintiff's prom- ise by which the bond must be maintained. No other reason can be imagined than a wish to deprive the plaintiff of his agreed means of indemnity against his promise. If that was not fulfilled by redeeming the land, the plaintiff was doubtless considered, at the time, able to answer the damages. The very reason why he took the judgment as a security, if the defen- dant's affidavits be correct, was probably to guard against the consequence of the defendant's insolvency. Suppose the plain- tiff had given his written obligation, the case would have been the same. It is like an exchange of acceptances or notes one being a consideration for the other, and so both of them bind- ing. The effect of the motion, if granted, will be to violate the implied understanding of the parties, even on the defen- dant's own showing. I will not deny that, in the war of affidavits opened by the case, the defendant may have succeeded both as to number and weight on the question of what was the real consideration. It is enough, however, that there was a real consideration of any 588 CASES IN THE SUPREME COURT. Webb v. Bulger. kind, even though I may think it was inadequate. Of this the parties were the judges. That there was lately the relation of guardian and ward sub- sisting between the plaintiff and defendant, and so, perhaps, a constructive fraud, was not put forward in the papers as a ground of the motion. It is merely alluded to as an incident in the account of the transaction. Neither party could have thought of such a ground being brought into question by this motion till it was incidentally suggested towards the close of the argument. Motion denied. WEBB vs. BULGER & BULGER. In general, there can be but one judgment record in the same cause. Where, however, in an action of assault and battery against two defendants, a verdict was rendered in favor of one and against the other, whereupon the latter made a bill of exceptions, and the former perfected judgment for his costs, the court permitted the judgment to stand on condition that the costs of entering it up should be deducted, though the cause was still pending on the bill of excep. tions. ASSAULT and battery, A verdict having been rendered in this case against one of the defendants, and in favor of the other, the latter perfected judgment against the plaintiff for costs, including the costs of the judgment, and the other defen- dant made a bill of exceptions. E. JL. Doolittle, for the plaintiff, moved to set aside the judgment, on the ground that the cause was still pending and undetermined, and that but one judgment record could be made and filed in the same cause. R. W. Peckham, contra, cited Hallock v. Powell, (2 Caines, 216, 218 ;) Day v. Hanks, (3 T. R. 654, 656 ;) Canfield v. ALBANY, APRIL, 1843. 5gg Ex parte Newell. Gaylord, (12 Wend. 236 ;) 2 R. 8. 617, 26 ; Cutler v. Goodwin, (1 Str. 420;) Kirk v. JYown/7, (1 T. R. 266 $) Braithwaite v. Bradford, (6 T. fl. 599.) JBy Me Cowrt, NELSON, Ch. J. The defendant who obtained a verdict is entitled to his judgment for costs ; but there should be but one record. This is, however, mere matter of form ; and if the costs of entering up judgment be deducted, the plain- tiff cannot be prejudiced. On making such deduction, the judgment may stand. Ordered accordingly. Ex parle NEWELL, receiver &c. Where, after one creditor had redeemed lands sold under af.fa., a second credi- tor, with a view of redeeming from the first, paid unconditionally to the sheriff the requisite amount, but immediately thereafter served an injunction in his own favor restraining the sheriff from paying it over ; held, nevertheless, that he was entitled to the sheriff's deed. REDEMPTION of lands sold on execution. On the 4th of De- cember, 1841, the sheriff of Erie sold certain lands in Buffalo on two judgments against Elisha C. Hickcox, one in favor of Samuel Stevens, and the other in favor of James Brisbane ; and Brisbane became the purchaser at $1950. On the 23d of February, 1843, Samuel H. Addington, having three judg- ments against Hickcox amounting to about $4800, redeemed and became the purchaser of 'the land, by presenting the ne- cessary papers and paying to the sheriff the amount of Bris- bane's bid with interest, amounting to $2116,50. There was a judgment against Hickcox in favor of the City Bank of Buf- falo which was older than either of those on which Addington redeemed ; and, on the 1st of March, 1843, George Newell, re- ceiver of the City Bank, redeemed from the sale by presenting the necessary papers and paying to the sheriff the amount of 590 CASES IN THE SUPREME COURT. Ex parte Newell. Brisbane's bid with interest $2120,63. On the third day of the same month, Addington again went to the sheriff for the purpose of redeeming from Newell, and paid to the sheriff the amount claimed to be due on the judgment in favor of the City Bank, being $1642. Previous to paying the money, Adding- ton had filed a bill against Newell in the court of chancery, al- leging that the bank judgment had been satisfied, and obtained an injunction forbidding the sheriff to pay over to Newell the money which Addington might pay to redeem, until the fur- ther order of the court of chancery. Addington first paid the money to the sheriff and took his receipt for the same, and im- mediately thereafter served the injunction on the sheriff, for- bidding his paying over the money to Newell. The sheriff, being of opinion that Addington had properly redeemed, exe- cuted a deed to him on the sixth of March. Newell had pre- viously given notice to the sheriff and to Addington that he should claim the deed, on the ground that Addington had not redeemed. E. F. Smith fy T. Burwell now moved for a mandamus to the sheriff, commanding him to execute a deed to Newell as receiver. They insisted that, in consequence of the service of the injunction, there was no redemption by Addington. It was like a conditional or qualified tender, or offering money with one hand, and then snatching it away with the other. E. G. Spalding fy D. Cady opposed the motion. By t/ie Court, BRONSON, J. Whether the injunction was properly issued or not, is a question for the court of chancery. Assuming that it was regular, and that the money is stayed in the hands of the sheriff, we are still of opinion that there was a good redemption by Addington. He made an unconditional payment of the amount of the bank judgment, and the sheriff received and receipted the money before the injunction was served. The redemption was then complete, and the subse- ALBANY, APRIL, 1843. 591 9. Aflun. quent service of process to stay the money in the hands of the sheriff could not undo what had already been well done. It is not like the case of a tender trammelled with conditions, or an offer of payment without parting with the money. Addington put the money entirely beyond his own control. The sheriff received and now holds it for Newell, and is answerable for its safe keeping in the same manner as though the injunction had not been served. Should the chancery suit be decided in favor of the defendant, or the injunction be dissolved, Newell will then receive the full amount of his judgment ; and he can only fail of obtaining the money because a court having cogni- zance of the matter may decide that the judgment had been satisfied prior to the redemption. The money which Newell paid on redeeming from Brisbane is in the sheriff's hands, ready for Newell whenever he chooses to ask for it. The sheriff also has the money to pay the bank judgment, which Newell will receive in due time , unless it should be found that the judgment had been satisfied, and so was not a lien on the land. Motion denied. LARMON vs. AIKEN and another. Where a writ of error to the common pleas was brought after Jane let, 1840, though the judgment sought to be reversed was rendered before, held, that the costs upon the writ must bo taxed according to the rates established by the act of May 14th, 1840. COSTS. Aiken and another sued Larmon before a justice, and recovered a judgment. On appeal to the C. P., judgment was again recovered against Larmon prior to June 1st, 1840. After that day, Larmon brought a writ of error in this court, where the judgment was affirmed. The defendants in error taxed their costs on the writ of error at the rates given by the old fee bill. 592 CASES IN THE SUPREME COURT. Park v. Moore. JV*. Hill, Jr., moved for a relaxation on the ground that costs should have been taxed at the rates established by the act of 1840. (Stat. '40, p. 327.) H. Z. Hayner, contra, said a writ of error was for some purposes a continuation of the original action, and as that was commenced prior to June 1st, 1840, the case was saved from the operation of the act of 1840 by the 38th section. By the Court, BRONSON, J. We think the costs of the writ of error should have been charged and taxed according to the rates established by the act of 1840. Motion granted. and another vs. MOORE and another. Where a defendant, after suit brought, obtained a decree for his discharge as a bankrupt, the court permitted the plaintiff to discontinue without costs, though a certificate of the defendant's discharge had not yet been granted. H. Everts moved that the plaintiffs have leave to discontinue without costs. After this suit was commenced, the defendants made application for discharge under the bankrupt act, and both of them were decreed and declared bankrupts by the dis- trict court of the U. S., but neither had yet obtained his certifi- cate of discharge. H. H. Martin, contra. By the, Court, BRONSON, J. When the defendant, after suit brought, obtains a discharge under an insolvent law, the plain- tiff will be allowed to discontinue without costs. (1 John. R. 143 ; 2 id. 294 ; 18 id. 252 ; 2 Cowen, 503 ; 8 id. 121 j 1 ALBANY, APRIL, 1848. 593 The People r. Sly. Wend. 91,2; 1 Caines, 116.) But the motion will not be granted unless the defendant has obtained his discharge. (Col- lins v. Evans, 6 John. 333.) The reason for this I take to be, that the court will not try the question of insolvency on affida- vits. The plaintiff is not relieved on the ground that the de- fendant may defeat the action by pleading the discharge ; but on the ground that the discharge affords conclusive evidence of the defendant's inability to pay. (Honnewell v. Burns, 8 Cowen, 121 ; Merritt ads. Men, 1 Wend. 91.) Here, both of the defendants have solemnly declared themselves bankrupts, and we have besides conclusive evidence of the fact in the decree of a court of competent jurisdiction. Although the defendants have not obtained their certificates, the case falls within the principle of those in which the plaintiff has been allowed to discontinue without costs. Motion granted. THE PEOPLE ex rel. SEWARD vs. SLY and others. Where a road district was formed from parts of two districts, and was afterwards ordered to be discontinued by the commissioners of highways ; held, that the or. der was valid, though it did not expressly provide for embracing the territory to which it related within any other road district, the effect being to restore the two districts to their original limits. ROAD district number 83 in the town of Warwick, Orange county, was formed from parts of road districts number 37 and 64. At a meeting of the commissioners of highways of the town in March, 1840, held for the purpose of deciding upon applications to alter the districts, they made an order that dis- trict number 83 be discontinued. After the annual town meet- ing in 1842, the relator applied to the justices to appoint an overseer of highways for district number 83, on the ground that the town had neglected to appoint one. (1 JR. S. 347, VOL. IV. 75 594 CASES IN THE COURT OF ERRORS. The People . Sly. 31.) The justices refused to appoint, for the reason, among others, that there was no such district. These facts appeared on the return to an alternative mandamus directed to the jus- tices requiring them to appoint or show cause, &c. Ji. Taber, for the relator, now moved for a peremptory writ. He insisted that although the commissioners had power to alter the districts, they were bound to district the whole town, and could not leave a particular road out of the limits of any dis- trict. (1 R. S. 501, 1, sub. 5.) R. J. Hilton, contra. By the Court, BRONSON, J. The effect of discontinuing dis- trict number 83 was, I think, to restore the original limits of the two districts out of which number 83 was carved j and if this be so, the power of the commissioners to make the order cannot be doubted. The justices were therefore right in re- fusing to appoint an overseer for number 83, as there was no such district. There has been a great deal of controversy about the " Qua- ker creek road," and it may be that the town officers have dealt hardly with the relator : but I do not see that he has any remedy in this form. Motion denied. ALBANY, APRIL, 1843. 595 Ehlc t>. Bingham. EHLE vs. BINGIIAM. An affidavit of the travel and attendance of witnesses is defective unless it state the name and place of residence of each witness, the distance travelled by him and the number of days that he actually attended. A cause having been noticed for trial at the New- York circuit, was placed upon the day calendar, where it remained but one day ; held, that witnesses residing in the city were entitled to fees for one day's attendance only. Fees paid to witnesses who do not attend in obedience to a subpoena, cannot be taxed as a part of the costs in the cause ; the remedy of the 'party being by a suit to recover back the money paid. WITNESSES' fees. On taxation of costs for the New- York eircuit, the plaintiff made affidavit that the following persons were subpoenaed as witnesses, " and probably travelled the dis- tance, and actually attended as witnesses the number of days as hereinafter stated, viz. : S. Wolcott &c. [naming nine indi- viduals jj that two of said witnesses reside two hundred and thirty miles from court, and attended court twenty days each ; that one of said witnesses resides two hundred and thirty miles from court and was duly subpoenaed, and five dollars paid towards his fees to him, and five dollars additional fees paid on account of witness' travelling expenses home by deponent on his way to New -York as a witness in this cause ; that one of said witnesses resides one hundred and twenty miles from court, and was duly subpoenaed as a witness in this cause and his fees as such witness to said city paid, as appears by the admission of said witness duly endorsed in his own handwriting upon the subpoena hereto annexed ; that four of said wit- nesses attended court twenty-six days each, and one of said witnesses attended eighteen days at said circuit." The five last mentioned witnesses resided in the city of New- York, and it appeared that the cause was on the day calendar for said cir- cuit for one day only. The defendant objected to the sufficien- cy of the affidavit. The taxing officer allowed for the travel of two witnesses, two hundred and thirty miles eech, $36,80, 596 CASES IN THE SUPREME COURT. Ehle v. Bingham. and for the attendance of those witnesses, twenty days each, $20. For the five witnesses residing in New-York, he allowed only one day's attendance each ; and he rejected the claim for fees paid to the witnesses who did not attend the circuit. Both parties moved for a re-taxation of the costs. j2. Taber, for the plaintiff. T. B. Mitchell $ JV. Hill, Jr. for the defendant. By the Court, BRONSON, J. Charges for witnesses cannot be taxed, without an affidavit stating the distance they respec- tively travelled, and the days they actually attended. (2 R. S. 653, 7.) For the purpose of satisfying this requirement, and detecting any false swearing, the affidavit should state the name and place of residence of each witness, the distance he had to travel to reach court, and the number of days that he actually attended as a witness in the particular cause. No other rule will effectually guard against over charges. This affidavit was insufficient, and the charges for the travel and attendance of the two witnesses, amounting to $36,80, were improperly al- lowed. Only one day's attendance was allowed for each of the city witnesses. That was right, both on the ground that the affi- davit was defective, and because the cause was only on the day calendar for a single day. The fees paid to witnesses who did not attend were properly disallowed. (Booth v. Smith, 5 Wend. 107 ; Anon. 3 Hill, 457.) The plaintiff can recover back the money from the wit- nesses, and a penalty besides, unless there was some good ex- cuse for not attending. The plaintiff's motion for a re-taxation must be denied, and that of the defendant granted. Ordered accordingly. ALBANY, APRIL, 1843. 597 Anonymota. ANONYMOUS. An affidavit of service of papers on a deputy of one of the clerks of this court, in tha clerk's office, is good, without adding that the clerk was absent. So, of an affidavit stating service on a clerk of one of the clerks of the court, in his office. Note (a). M. T, Reynolds moved, in this case, upon papers which were sworn to have been served on a deputy of one of the clerks of the supreme court (naming the deputy and clerk) in the clerk's office j whereupon A. Sheldon^ contra, objected that the proof of service was insufficient, it not appearing that the clerk was absent. But BRONSON, J. held the proof sufficient. Motion granted. (a) (a) IN ANOTHER CASK, decided at this term, the affidavit stated that the papers were served on a clerk of J. K. P., one of the clerks of the supreme court, in his office: Held sufficient ANONYMOUS. Where the papers for a motion are properly entitled, an affidavit of service imme- diately following, or endorsed upon them, though not itself entitled, is sufficient IN this case, the papers for the motion were properly enti- tled, and immediately following was an affidavit of service, which, however, was not entitled. P. Cagger, for the motion, was about to state the contents of the papers ; whereupon 598 CASES IN THE SUPREME COURT. Matter of Faulkner. 0. S. Srighamj contra, objected that they could not be used, by reason of the above defect in the affidavit of service. But BRONSON, J., overruled the objection, observing that where, as in this case, the affidavit immediately follows the papers for the motion, or where it is endorsed upon them, they being properly entitled, it is sufficient, though not itself entitled. It is good by relation to the entitling of the principal papers. Motion granted. Matter of FAULKNER, an absconding or concealed debtor. The appointment of trustees in a proceeding against an absconding or concealed debtor, under 2 R. S. p. 2 et seq., does not preclude him from raising the ques- tion whether the affidavits upon which the attachment issued were sufficient to give the officer jurisdiction. Nor will the debtor be precluded even though he have previously applied for and had a hearing in the common pleas, pursuant to 2 R. S. p. 9, 43. The case of Hubbell v. Ames (15 Wend. 372) explained, and the reporter's abstract of it corrected. In order to confer jurisdiction, the affidavits of the two witnesses required by 2 R. S. p. 3, 5 must state the facts and circumstances to establish the grounds of the application ; mere information and belief will not answer. Per BRON- SON, J. If, however, facts and circumstances be stated tending to establish the grounds of the application and fairly calling on the officer for an exercise of his judgment upon the weight of the evidence, though he err in his estimate of it, the proceed- ing will not be void for lack of jurisdiction. ON the 16th of April, 1842, an attachment was issued against Faulkner, as an absconding or concealed debtor, on the application of Thomas J. Smith, by the circuit judge of the first circuit. On the 26th of May following, Faulkner pre- sented a petition to the judge stating that he was not an ab- sconding or concealed debtor, and had the matter referred to the determination of the New- York C. P. The court decided against him on the 5th of September. On the 13th of October ALBANY, APRIL, 1843. 599 Matter of Faulkner. the circuit judge appointed trustees, and on the 3d of Novem ber he reported his proceedings to this court. In December the debtor made a motion, upon special grounds, to set aside the appointment of trustees, and a motion was made against him for the purpose of placing certain moneys within the reach of the trustees. (See ante, p. 30.) The debtor now moved that the attachment and all subse- quent proceedings be set aside and annulled for want of juris- diction in the circuit judge, and for irregularity and insufficien- cy in the affidavits on which the attachment issued. In case this should not be granted, he then asked for a rehearing in the court of C. P. He swore that the affidavits on which the attachment issued were not reported to the C. P. by the circuit judge, nor were they filed in this court j that although enqui- ry and search were repeatedly made for them, they could not be found until the 20th of February last, when they were found in the office of the circuit judge. The grounds on which the question of jurisdiction is made are sufficiently stated in the opinion of the court. J. Rhoadesj for the debtor. JV. Hilly Jr. contra. By the Court, BBONSON, J. It is said there was not sufficient evidence before the circuit judge that Faulkner was an absconding or concealed debtor, and consequently that the officer did not acquire jurisdiction to issue the attachment. The statute declares that the appointment of trustees shall be conclusive evidence that the person was a concealed or abscond- ing debtor within the meaning of the act, and that the appoint- ment and all the previous proceedings were regular. (2 R. S. 12 , 62.) Strong and comprehensive as this language un- doubtedly is, it is settled that it does not preclude an enquiry into the fact whether a prima facie case was made out before the officer who issued the attachment. (Matter of Hurd, 9 600 CASES IN THE SUPREME COURT. Matter of Faulkner. Wend. 465.) There, the proceedings were against administra- tors in their representative character, who were adjudged not to be within the statute ; and on that ground the attachment and all subsequent proceedings were set aside by this court, although trustees had been appointed. In Hubbdl v. Jlmes^ (15 Wend. 372,) the question came up collaterally, and it was held that the appointment of trustees was sufficient to show that the officer had jurisdiction ; but it was not held to be con- clusive, as is erroneously stated in the reporter's head note. The decision in the Matter of Hurd necessarily affirms that the estoppel created by the 62d section has a limit, and that it does not extend to the question whether a pnma facie case was made out before the officer in the first instance. This limita- tion may, I think, be successfully maintained, without over- throwing the estoppel altogether. Assuming that the attach- ment was properly issued, the statute goes on to provide, that the debtor may come in at any time before the appointment of trustees, and allege that he was not an absconding or concealed debtor ; and the matter is then to be tried by this or some other court. The debtor thus has an opportunity to produce rebut- ting evidence for the purpose of overthrowing the prima facie case on which the attachment issued. If the decision is in his favor, the warrant is discharged j otherwise the proceedings go on. ( 43 to 50.) If the debtor does not come. in and deny the allegations on which the warrant issued, or if he appears and the matter is adjudged against him, trustees are to be appointed. ( 58.) And then, having either produced his rebutting evi- dence, or having neglected the proper opportunity for doing so he is afterwards precluded from adducing evidence to show that he was not an absconding or concealed debtor. So far the estoppel created by the 62d section goes, and there it ends It does not touch the question whether the proceeding was not utterly groundless at the first, taking the case as it appeared on the ex parte application of the creditor. That question, for aught that 'I can see, must always remain open to the debtor ; ALBANY, APRIL, 1843. Matter of Faulkner. for if the officer had no jurisdiction) the whole proceeding is coram non judice. It is said that the debtor is concluded from raising this ques- tion in consequence of having applied to the judge for a hear- ing in the common pleas, and having had that hearing. ( 43.) But this was not a proceeding in personam, or an action where a voluntary appearance would be sufficient to confer jurisdiction over the person although not regularly served with process. It was a proceeding in rem, and the debtor only came in to save his property. It was not a case where there could be any such thing as a technical appearance. (See per Parsons, C. J. in Bissell v. Briggs, 9 Mass. R. 469 j Pawling v. Bird, 13 John. 192, 207 ; Cowen $ HUPs Notes to Phil. Ev. 908, 1024.) He undertook to prove that he was not an absconding or concealed debtor, for the purpose of having the warrant discharged. (^ 43 to 48.) But I do not see how that could confer jurisdiction on the judge who had previously issued the warrant. This brings us to the question whether such a prima facie case was made out before the circuit judge as to give him ju- risdiction. No exception is taken to the application and affi- davit made by the creditor ; (3, 4 j) but it is insisted that the affidavit of the two witnesses was insufficient. They must state the facts and circumstances to establish the grounds on which the application is made. (5.) It is not enough for them to say they are informed and believe that the debtor has secretly departed from the state, or keeps himself conceale. therein, with intent to defraud his creditors or to avoid the ser- vice of civil process. They must give the facts and circum- stances which induce the belief, to the end that the officer may judge of the evidence. (Ex parte Haynes, 18 Wend. 611, and cases cited ; and see Ex parte Robinson, 21 Wend. 672 ; John- son v. Moss, 20 id. 145.) But these witnesses did state facts and circumstances tending to prove that Faulkner had depart- ed from the state, or kept concealed in it with intent &c. They state that they were acquainted with him ; that he had been the proprietor of a line of stages kept at a specified place VOL. IV. 76 602 CASES IN THE SUPREME COURT. Matter of Faulkner, in the city ; that about six weeks before, he sold out his stages and horses and suddenly broke up his business, and thereafter departed from or kept concealed in the city ; and that after he sold out, his goods were sold by his landlord for the pay- ment of rent. Before the sale by Faulkner they saw him fre- quently ; but since that time they had not seen him at all. And they add, that it was generally understood and believed that Faulkner was keeping out of the way to avoid his credit- ors, and that he was concealed within this state or had abscond- ed from it, for the purpose of defrauding his creditors. Now, although the evidence was far from being conclusive, still it had a legal tendency to make out a case, in all its parts, for the issuing of an attachment. Enough was proved to call upon the officer for the exercise of his judgment upon the weight and importance of the evidence ; and if he erred in the decision of a question thus fairly presented, the error would not be fatal to the proceedings. It is only when there is a to- tal want of evidence upon some essential point, that the officer will fail to acquire jurisdiction. (a) The motion for a re-hearing in the C. P. comes quite too late ; and besides, I do not see thai we have any power to or- der it. Motion denied. (a) See Council v. Lassells, (20 Wend. 77,) and the dissenting opinion of Cow- en J. in that case. ALBANY, APRIL, 1849. Anonymous. ANONYMOUS. Where the plaintiff intended to bring replevin in the detintt, but, by mistake of his attorney, the charge of detaining was preceded in the writ. by words imputing an unlawful taking also, he was allowed to amend on terms by striking oat those words, even after the writ had been executed. AMENDMENT of writ of replevin. The complaint in the writ was, that the defendant " has taken and does unjustly detain" the property in question. It had been executed, but nothing further done in the cause j and now M. T. Reynolds, for the plaintiff, moved for leave to amend by striking out the words " has taken and." He read an affi- davit showing that the plaintiff intended to bring replevin in the detinetj and that the words imputing an unlawful taking were inserted through a mere oversight or mistake of his at- torney. A. L. Brovm, contra. BRONSON, J. allowed the amendment to be made, on the plaintiff paying the costs of the motion, giving a new replevin bond nunc pro tune, and the sureties therein justifying. Rule accordingly. 604 CASES IN THE SUPREME COURT. Millard . Robinson. MILLARD vs. ROBINSON. A notice of rent being due, given by a landlord to an officer pursuant to 1 R. S, 746, 12, is in the nature of process, and should state facts enough to show that the landlord is entitled to a preference over the execution creditor. Per BRONSON, J. Accordingly, where the goods of R. were taken in execution, and the notice showed, among other tilings, that the premises on which the seizure was made were in the occupation of R. and others, and that a specified amount was duo to L., the landlord, for a balance of one year's rent of said premises &o., but did not show R. to be the tenant of L. ; held, that the notice was defective, and that the officer might therefore disregard it. LANDLORD and sheriff. Jacob L. Lane leased a brick store in Troy to Henry A. Benton for one year from May 1, 1842, at the annual rent of $500, payable quarterly. On the 1st of August, 1842, Benton sold his goods to the defendant Robin- son, who entered and occupied the store. Other persons oc- cupied parts of the building, but upon what terms did not ap- pear. The sheriff having levied the execution in this cause upon the goods of the defendant in the store, Lane, on the 3d of March, 1843, gave notice to the sheriff, as follows : " Take notice that there is due and payable to me as landlord of that certain brick store, situate &c., and now in the occupation of Robert C. Robinson and others, the sum of $401,64 for a bal- ance of one year's rent of said premises, commencing &c. ; and you will further take notice that the above sum is claimed by me as landlord to be due, and that you are required to pay and satisfy the same out of the goods and chattels seized or levied upon by you on said premises." The sheriff sold the goods for more than enough to pay the rent, but not for enough to satisfy the execution ; and Lane now moved that the sheriff pay to him the amount of the rent due. The mo- tion was resisted on the ground, among others, that the notice was insufficient because the tenant was not named. ALBANY, APRIL, 1843. (JQ5 Millard r. Robinaon. M. T. Reynolds, for the landlord. J. A. Millard & JV. Bill, Jr. contra. By the Court, BROXSOX, J. By the notice given to the sheriff, Lane claimed as landlord, and stated that the store was in the occupation of Robinson and others ; but he did not state that Robinson was his tenant. So far as appears by the notice, Robinson may have come in as under-tenant, or even in hostil- ity to Lane's title j and in either of those cases there was no remedy by notice. The landlord can only gain a preference over an execution creditor by either distraining before the exe- cution is levied, when, with few exceptions, the goods of any person found on the demised premises may be taken j or by giving notice after a levy, where the defendant in the execu- tion is his tenant. (Brown v. Fay, 6 Wend. 392 ; and see Frisbey v. Tkayer, 25 id. 396 ; Coles v. Marquand, 2 Hill, 447 ;(a) Slocum v. Clark, id. 475.) The notice is in the na- ture of legal process, under which the goods are to be sold to pay the rent, as well as the judgment ; (1 R. S. 746, 12 to 16 ;) and the landlord should state facts enough, assuming them to be true, to show that he is entitled to a preference over the execution creditor. We think the notice was insuffi- cient, and that the landlord's claim must fail upon that ground It is of course unnecessary to examine the other questions made on the argument. Motion denied. (a) In connection with Colea v. Marquand, BCC the case of Acker, theriff J*. r. WilhfreU, (ante, p. 112.) 606 CASES IN THE SUPREME COURT. The People v. Akin. THE PEOPLE ex rel. LODOWICK vs. AKIN, judge of Dutchess C. P. An order being made for the commitment of a debtor under the 9th section of the non-imprisonment act, he presented to the officer making it an inventory of his estate &c. pursuant to the third subdivision of the 10th section, for the purpose of obtaining a discharge. The application was opposed by the creditor and de- nied, on the ground that the debtor's proceedings were not just and fair and that he was chargeable with actual fraud. The debtor was then committed to jail and afterwards applied for a discharge to another officer under the 12th section of the act. Held, that the debtor was estopped from trying the same matter over again so long as the first decision remained unreversed, and that the offi- cer's order dismissing the second application for that reason, was right. MANDAMUS. Dolson & Keyes commenced a suit in this court against Lodowick, the relator, for a demand due upon contract, and afterwards applied to John Brush, a supreme eourt commissioner, for a warrant to arrest Lodowick pursuant to the non-imprisonment act, (Stat. 1831, p. 396,) alleging that he had property or rights in action which he fraudulently concealed ; or had assigned, removed or disposed of his proper- ty with intent to defraud his creditors j ( 4, sub. 2, 3 ;) and they produced affidavits in support of the allegations. A war- rant issued, and Lodowick was brought before the commis- sioner on the 23d of December, 1842. He neglected and refused to controvert the facts and circumstances on which the war- rant issued, and the commissioner thereupon decided that he should be committed to prison. To prevent the commitment, Lodowick proposed to make an assignment of his proper- ty, and he presented an inventory and account pursuant to 10, sub. 3. Dolson and Keyes opposed the application, and after hearing the proofs and allegations of the parties, the commissioner, on the 23d of January, 1843, decided that the proceedings of Lodowick, on his application for a discharge, were not just and fair, and that he had concealed, removed, and disposed of a portion of his property with intent to defraud his creditors. The commissioner therefore refused to order an ALBANY, APRIL, 1843. The People . Akin. assignment, and issued a warrant committing Lodowick to the jail of the county until he should be discharged according to law. On the 15th of February following, Lodowick presented to Judge Akin a petition, account of creditors and inventory, and applied for a discharge from imprisonment. Dolson and Keyes, having had fourteen days previous notice, appeared and opposed the application ; and on their motion the judge dis missed the application, on the ground that the same matter had been adjudicated by the commissioner, and his decision remain- ed in full force. An alternative mandamus thereupon issued requiring the judge to proceed and adjudicate upon the appli- cation, or show cause &c. On a return stating the foregoing facts, L. Maisonj for the relator, now moved for a peremptory mandamus. A. Taberj contra. By the Court, BRONSON, J. After a commitment had been ordered in pursuance of the ninth section of the non-imprison- ment act, Lodowick applied to the commissioner for a dis- charge in pursuance of the third subdivision of the tenth sec- tion. After a full investigation, the application was denied on the ground that the proceedings on the part of the petitioner were not just and fair, and that he was chargeable with actual fraud. ( 12, 16.) I see no reason why this should not have the same effect as it would if the debtor had been first committed to jail, and had then applied for a discharge under the 12th section. This brings us to the question whether the debtor can repeat his application for a discharge at pleasure, or whether, when the matter has been once decided against him, it is to be con- sidered as res adjudicata so long as the first determination re- mains in force. It does not appear that there was any substan- tial difference between the papers presented to the judge, and those which had previously been before the commissioner j and 608 CASES IN THE SUPREME COURT. we think the relator is estopped from trying the same matter a second time, so long as the first decision remains unreversed. (Mercein v. The People, 25 Wend. 64. And see The People v. Mercein,) 3 Hill) 399.) If the decision of the commissioner was erroneous, the remedy was by certiorari. (Townsend v. Morrell, 10 Wend. 577.) If the debtor can make a second application after being defeated in the first, there can be no limit to the applications, and the creditor may better abandon his claim at once than think of opposing a discharge. It is asked, how can the debtor get out of jail 1 That is a question which we are not now called upon to decide. Motion denied. Ex parte NEWELL, receiver, &c. Where a junior creditor complied with the requisites for redeeming from the purchaser by reimbursing the amount of the bid, &c., and, on the same day, a senior creditor who had previously become assignee of the original certificate of sale, presented to the sheriff the proper evidence of that fact and of his right as creditor ; held, that he was entitled to the sheriff's deed without paying any money. The affidavit of a redeeming creditor as to the amount due on his judgment, though made five days before presenting the papers to the sheriff, is sufficient. Where such creditor is an assignee of the judgment in virtue of which he seeks to redeem, though the statute in terms requires him to present to the sheriff a copy of his assignment &c., (2 R. S. 373, 6, subd. 2,) it is sufficient if the original be presented. Semble. An acknowledgment of the assignment, certified by an officer authorized to take acknowledgments of deeds, is not a sufficient verification of it for the pur. pose of redeeming. Where a copy of an assignment was verified by affidavit as follows : " This de. ponent is the assignee and owner, according to the annexed copy of the transfer thereof by &c., [naming the assignor,] in good faith, of the said judgment ;" held, a sufficient verification, though unskilfully drawn. REDEMPTION of lands sold on execution. On the 23d of April, 1841, the sheriff of Erie sold certain lands in that county on ALBANY, APRIL, 1848. 609 Ex parte Newell. a judgment against Isaac S. Smith and others, docketed May 5, 1837 ; and William D. Taber became the purchaser at the sum of $133,76. On the 8th of March, 1838, Smith mortgaged the lands to the City Bank of Buffalo, for securing the pay- ment of $15,120. On the 23d of July, 1842, Newell, as re- ceiver of the City Bank of Buffalo, redeemed in virtue of the mortgage, by presenting the necessary papers and paying the proper sum to the sheriff. On the same day (23d of July, 1842) Stephen Smith, by his agent, delivered to the sheriff the certificate of sale to Taber, with an assignment thereof, duly acknowledged, from Taber to said Smith. (Stat. 1835, ch. 189.) Between the time that the judgment was recovered on which the land was sold, and the giving of the mortgage to the City Bank, five several judgments were recovered either against Isaac S. Smith alone, or against him and others, all of which judgments the said Stephen Smith, on the said 23d of July, claimed to own as assignee thereof. He presented to, and left with the sheriff, a copy of the docket of each of the judgments duly certified, and his own affidavits of the amount due on each of the judgments. As to four of the judgments, he produced what purported to be the original assignments to him from the judgment creditors, severally acknowledged before an officer authorized to take the acknowledgment of deeds, but without any other verification. In some of the affidavits of the amount due, he stated " that this deponent is the assignee and owner in good faith of said judgment." He did not produce a copy of any of those assignments. The fifth judgment was in favor of the Onondaga County Bank, and as to that, Smith produced what purported to be copies of two assignments of the judgment from the bank to himself, with his own affidavit of the amount due on the judgment, which contained the following words : " that this deponent is the assignee and owner, according to the annexed copies of the transfer thereof by the Onondaga County Bank, in good faith, of the said judgment, and that the amount of the sum now due upon said judgment for principal and interest is $17,150,88, according to the best of this de- VOL. IV. 77 610 CASES IN THE SUPREME COURT. Ex parte Newell. ponent's knowledge and belief." Smith paid no money to the sheriff claiming that the redemption was complete without it, as he was the owner of the certificate of sale. He resided at Syracuse, and his affidavits of the amounts due on the judg- ments were made five days before his agent presented the pa- pers to the sheriff at Buffalo. T. Burwell fy E. F. Smith now moved for a mandamus to the sheriff, requiring him to execute a deed to Newell as re- ceiver. They insisted that Stephen Smith had not redeemed, for the following reasons, viz : 1st. As to four of the judg- ments he had not produced copies of the assignments ; 2d. As to the fifth judgment there was no sufficient verification of the papers presented as copies of the assignments ; 3d. He paid no money j and 4th. The affidavits of the amount due on the judgments respectively were made five days before he claimed to redeem. 8. H. Hammona, contra, after answering these objections, in- sisted that Newell had not redeemed, 1st. Because he had not shown that he was duly appointed receiver, as the bond was given to the register in chancery when it should have been given to the people ; and 2d. Because as receiver he had no power to redeem. By the Court, BRONSON, J. In the view which we have taken of the case, it will be assumed that there was a good re- demption by Newell as receiver, but without deciding the question. As the five judgments under which Stephen Smith claimed to redeem were all older than the mortgage, he had no occa- sion for redeeming from Newell. He had purchased and taken an assignment of the original certificate of sale to Taber, and presented the proper evidence of that fact to the sheriff when he attempted to redeem. (Stat. 1835, p. 210, 1,2.) It was not necessary for him to pay the original purchase money to the sheriff, for the reason that, as owner of the certificate, he ALBANY, APRIL, 1843. Ex parte Newell. stood in the place of Taber, and was himself entitled to the money. If he had laid it down, he might have taken it up again the next moment, and the law will not require that he should go through with so idle a ceremony. This point was involved in The People v. Ransom, (2 Hilly 51.) That case also disposes of the objection, that the affidavits stating the amount due on the several judgments were made five days be- fore the papers were presented to the sheriff. As all of the judgments were older than the mortgage, it was enough to defeat the redemption by Newell if the papers presented by Smith were right as to any one of the judgments. As to four of them, he presented what purported to be original assignments from the several judgment creditors, when the statute only provides for copies. (2 R. S. 373, 60.) Al- though an original instrument is generally deemed higher evi- dence than a copy, the legislature has thought proper in this instance to give a different rifle j and, within the principle deci- ded by the court of errors in Waller v. Harris, (20 Wend. 655,) there is some difficulty in getting over the objection that copies of the assignments should have been produced. (a) But the doctrine of that case was somewhat shaken by the subse- quent decision of this court, that the affidavit of the amount due may be made before the time has arrived when the creditor has a right to redeem. (The People v. Ransom, 2 Hill ,51.) My brethren are inclined to the opinion that the papers were suffi- cient, if it were not for the further difficulty that there was no verification of the papers purporting to be original assign- ments. The acknowledgments of those papers certified by public officers proved nothing, for the reason that the statute re- quires a different mode of verification. In some of the affida- vits of the amount due, Smith deposed that he was "the as- signee and owner in good faith of the judgment j" but he said nothing about the execution or authenticity of the papers which were delivered to the sheriff. There was no evidence (a) Sec Miller v. Woodworth, (3 HOI, 529.) 612 CASES IN THE SUPREME COURT. Ex parte Newell. upon that subject, and without it the redemption could not be made. The remaining judgment was recovered by the Onondaga County Bank, and as to that, Smith presented what purported to be copies of two assignments of the judgment to him by the bank ; and the only question is on the verification. The stat- ute requires the redeeming creditor to present " a true copy of all the assignments &c., verified by his affidavit, or by the affi- davit of some witness to the assignment. " This language can- not be satisfied without proof, either by the party or witness, that the paper produced is a copy of an original instrument which was duly executed ; and there is some difficulty in say- ing that this affidavit proves so much. But I am inclined to think it is sufficient. The words are, " that this deponent is the assignee and owner according to the annexed copies of the transfer thereof by the Onondaga County Bank, in good faith, of the said judgment. " The affidavit was not very skilfully drawn, and a slight transposition of the different members of the sentence, without the addition or omission of a single word, will make it express more clearly what I think the party in- tended to affirm. It will then read, " that this deponent is the assignee and owner, in good faith, of the said judgment, accord- ing to the annexed copies of the transfer thereof by the On- ondaga County Bank. " The party swears positively that he is " the assignee and owner " of the judgment, and if it had not been duly assigned, he may be convicted of perjury. And fur- ther, that he is the assignee and owner of the judgment, " accord- ing to the annexed copies of the transfer thereof by the Onon- daga County Bank. " This cannot well mean less, than that the papers annexed are " copies of the transfer " by which he became " the assignee and owner " of the judgment. Al- though the question is not entirely free from difficulty, we think the affidavit sufficient ; and as there was a good redemp- tion under this judgment, Stephen Smith, and not the relator, is entitled to the sheriff's deed. As the case is one of some importance, and the relator may ALBANY, APRIL, 1843. 613 Ex partc Becker. wish to review our decision, he may, if he shall so elect within thirty days, have an alternative mandamus for the purpose of putting the matter on record. Otherwise, the motion is denied. Ordered accordingly. Ex partc BECKER. Where, for the purpoec of redeeming land sold on execution, a judgment creditor paid to the sheriff certain foreign coin, which was received by him at its current value without objection, but which turned out to be legally worth a few cent* less ; yet held, a valid payment So, where the payment was made partly in current foreign coin which was not a legal tender. Judgments and decrees entered after the act of 1840 (Sets. L. 40, p. 327) took effect, though recovered in suits commenced before that time, arc net liens on real ectate unless docketed in the counties where tb.3 lands are situated. That part of the act relating to the fees of counsellors, attorneys &c., does not ap- ply to suite commenced before the act went into effect Per BRO.NSON , J. REDEMPTION of lands sold on execution. On the 1.1th of December, 1841, the sheriff of Erie sold certain lands in Buffalo on executions against Peyton Harris ; Augustus C. Moore becoming the purchaser at the sum of $147,55. On the 7th of June, 1841, another judgment against Harris waa recovered in this court by George L. Record for 8111,37, which was on that day docketed in the clerk's office of this court at Geneva, but was never docketed in the county of Erie. The suit in which this judgment was recovered was commenc- ed in the year 1837. On the 1 1th of March, 1843, Becker, the relator, having previously become the owner of Record's judg- ment by assignment, presented the necessary papers and made the proper payment to the sheriff for the purpose of redeeming from Moore, the purchaser. On the same day Milo W. Hill, who had a judgment against Harris in the Erie C. P., docketed 614 CASES IN THE SUPREME COURT. Ex parte Becker. on the 24th of February, 1843, presented the necessary papers, and paid to the sheriff the proper sum ($160,46) for the pur- pose of redeeming from Moore, the original purchaser ; but he paid nothing for, nor did he attempt to redeem from the rela- tor insisting that the judgment under which the latter redeem- ed was not a lien on the lands, because it had not been dock- eted in the clerk's office of Erie county. Hill, on redeeming, made the necessary payment in specie, and the sheriff received the money by count, without weighing. Among other coins, there were sixteen English sovereigns paid and received at $4,84 each, amounting to $77,44 ; three French five-franc pieces, at 7s. 6d., $2,81 ; eleven Spanish quarter dollars, at 25 cents each ; two Mexican quarter dollars at the same rate ; and four Spanish six-penny pieces at 6| cents each. Twelve days afterwards the relator caused the sovereigns to be weighed, when, as the witness testified, they were found to fall short in value of the gross sum at which they were received, nearly ten cents, taking the standard estab- lished by the act of congress of March 3, 1843. A few days afterwards, Hill caused the sovereigns to be weighed by other scales, and the witness testified that they exceeded in value the gross sum at which they were received, by one cent. The re- lator now insisted that Hill did not pay enough, because the sovereigns were received at two great a sum by ten cents ; the five-franc pieces at too much by three cents j and that the quarter dollars and six-penny pieces were not legal coins by virtue of any act of congress. On the 25th of March, 1843, the relator purchased and took an assignment of the sheriff's certificate of sale, duly acknowl- edged, and presented the same to the sheriff, and demanded a deed both on account of his redemption, and as the owner of the certificate, which the sheriff declined executing without the order of this court. T. Burwellj now moved for a mandamus to the sheriff, re- quiring him to execute a deed to the relator. ALBANY, APRIL, 1843. 615 Ez parte Booker. M. T. Reynolds j on behalf of Hill, opposed the motion. By the Court, BRONSON, J. The relator, either as a re- deeming creditor, or as the assignee of the certificate of sale, (Stat. 1835, p. 210, ^ 1, 2,) is clearly entitled to the deed, unless there was a good redemption by Hill. And whether Hill redeemed or not depends upon two questions : first, wheth- er he paid money enough to redeem from the original pur- chaser ; and second, whether the judgment under which the relator claims was a lien on the lands ; for if it was a lien, Hill should have paid the amount of that judgment, which was older than his own, as well as the original purchase money. 1. Did Hill make a sufficient payment to effect a redemption as against the original purchaser ? As to the sovereigns, the evidence is balanced, and it is impossible for us to say that the sheriff received them at more than their legal value. But if the relator's proof was undisputed, and the sovereigns were in truth paid at a few cents beyond their legal value, yet as they were accepted by the sheriff at their current value, without ob- jection, it was a good payment. The five-franc pieces were paid and received by tale at their current value, amounting in the gross to $2,81, when their legal value was two cents less than that sum. This payment stands on nearly the same foot- ing as that in relation to the sovereigns, and the maxim de minimis non curat lex may be applied to both. As to the other foreign coins, being Spanish and Mexican quarters of a dollar and six-penny pieces, it was conceded on the argument that they were not a legal tender, and without stopping to examine the acts of congress, I shall assume the fact to be correctly stated. Although not a legal tender, they were current coins, such as are usually received by tale, and were accepted by the sheriff, without objection, at their cur- rent value in the community. This was a good payment. The case does not fall within the principle of Dickinson v. Gil- liland, (1 Cotcen, 481,) where the redeeming creditor, through a mistake of the law, paid only seven per cent, interest, when 616 CASES IN THE SUPREME COURT. Ex parte Becker. he should have paid ten. Nor is it like the case of The Peru Iron Company, (7 Cowen, 540,) where, in consequence of erroneous information, the creditor did not pay half so much money as should have been paid. It is like the case of a pay- ment in current bank bills, which, though not a legal tender, if accepted by the sheriff, without objection, would be a good payment for the purpose of redeeming. 2. Hill did all that was necessary for the purpose of redeem- ing from the original purchaser, and the only remaining ques- tion is, whether he should have also paid the Record judgment which was older than his, and under which the relator had re- deemed as assignee. That depends on the question whether this judgment was a lien on the debtor's lands in the coun- ty of Erie, where it had not been docketed. The suit was commenced before and the judgment was recovered after the reform act of 1840 (Stat. 1840, p. 327) took effect as a law. The 38th section of the act of 1840 is in the following words : " This act shall not affect any suit or proceeding, nor the fees or costs therein, which shall be commenced before the same shall take effect." It is settled that this governs the form and time of issuing writs of fieri facias, as provided for by the 24th section. (The JV. F. and Shawangunk Mining Company, 22 Wend. 636 ; Commercial Bank of Oswego v. IveSj 2 Hill, 355 ; Stone v. Green, 3 id. 469.) So, too, it has often been held that the first thirteen sections, which relate to costs, do not affect the costs in suits commenced before the act took effect, though I do not recollect that any case upon that point has been reported, (a) There are other sections relat- ing to costs, and various provisions on other subjects, which are undoubtedly governed by the 38th section. But the several sections relating to the docketing and lien (a) See Larmon v. Aikcn, (ante, p. 591,) as to costs upon writs of error brought since the statute, for the purpose of reversing judgments rendered before. ALBANY, APRIL, 1843. 617 Ex partc Becker. of judgments and decrees are peculiar in their phraseology, and, by express words, apply to all judgments which are recov- ered or perfected after the act took effect, without any reference to the time when the suit was commenced. " No judgment or decree which shall be entered after this act takes effect^ shall be a lien upon real estate, unless the same shall be docketed 5 ' in the clerk's office of the county " where the lands are situate." (^ 25.) "After this act takes effect, when a judgment shall be perfected in the supreme court," the clerk shall furnish transcripts for the purpose of having the same docketed by the county clerk. ( 26.) Sections 27 and 28 carry out these provisions in relation to decrees in chancery, the judgments of the superior court of the city of New-York, and the several mayors' courts^ The 29th section provides, that "the judg- ments of the superior court of the city of New- York, and of any court of common pleas, recovered after this act takes ef- fect" may be docketed in other counties. And by the 31st section, " the lien of every judgment or decree to be docketed after this act takes effect^ shall cease to have preference &c. at the expiration of five years from the day when the judgment was perfected, or the decree entered." Nothing can be more clear than that the legislature intended this statute, when it came into operation, should apply to and control the docketing and lien of all subsequent judgments and decrees, without any reference to the time when the suit was commenced. It is true that the 38th section is broad enough in its terms to cover every provision in the act j but it must be read with such a qualification as will not bring it into direct conflict with other portions of the same statute. Although the language extends to every suit and proceeding previously commenced, an excep- tion must be understood and implied as to those sections in which the legislature had specially provided for the applica- tion of a different rule. This is the only way in which the different parts of the act can have effect, without being brought into direct and necessary conflict with each other. So far as arguments ab inconvenienti may be regarded, they VOL. IV. 78 618 CASES IN THE SUPREME COURT. Ex parte Becker. tend strongly in favor of this construction. The primary ob- ject of the sections relating to the docketing of judgments and decrees was, to make the clerk's office of the county the only place where a search need be made for the purpose of ascer- taining what liens and charges existed upon any lands in that county. It is a most important provision for the saving of time and expense , and is highly beneficial to the whole com- munity. But if we adopt the relator's construction we shall defeat one of the great ends for which the statute was passed. It may be many years before all the suits at law and in equity which were commenced prior to June 1st, 1840, will be final- ly determined and the judgments and decrees therein perfect- ed j and no one can safely purchase or take a mortgage upon lands until he has searched all the clerk's offices of this court, in the same manner as would have been necessary if the ac. of 1840 had not been passed. I am unwilling to adopt a con- struction which will conflict thus directly with the policy of the law. We are of opinion that the relator's judgment was not a. lien on the land, and his motion must consequently be denied. But as the question is an important one, he may, if he shall so elect within thirty days, have an alternative mandamus for the purpose of putting the question on record with the view to a writ of error. Ordered accordingly. CASES ARGUED AND DETERMINED Of TBS S t? 3P I IE EC IE @tJ3 or THK STATE OF NEW-YORK, IN MAT TERM, 1813. TAYLOR and others vs. RANNEY and GROVE, impleaded &c. A mere levy upon real estate in virtue of a fi. fa., never amounts to a satisfac- tion. Per BRO.SSOX, J. Where, in scire facial to revive a judgment, the tcrre-tcnant pleaded that the plaintiff issued &fi. fa. upon the judgment, and that in virtue thereof the sheriff caused to be levied " the damages &c. on the goods and chattels, lands and ten- ement*" of the defendant ; held, not sufficient to show the judgment satisfied, and that the plea was therefore bad. Otherwise, had the allegation in the plea been that the damages &c. were levied of the goods and chattels, lands and tenements &c. Per BROXSO.V, J. It is a general principle that transactions between A. and B., whether in or out of court, shall not have such an effect as will take away the previously acquired rights of third persons. Per BRONSOX, J. A fi. fa. having been returned satisfied, an entry was made in the docket of the judgment pursuant to 2 R. S. 362, $ 26, and the return was afterwards vacated by order of the court : Held, that lands sold by the execution debtor to a bona fide purchaser, after the entry in the docket and before the vacatur, could not be affected by the judgment As against the judgment debtor, however, his heirs &.C., such order will operate restrospectively, and carry back the lien of the judgment to the date of the ori- ginal docket Per BRONSON, J. Where, in scire facias to revive a judgment, the tcrrc-tcnant pleaded the return of an execution satisfied, an entry upon the docket pursuant to the above statute, 619 620 CASES IN THE SUPREME COURT. Taylor v. Ranney. and that after such entry he purchased the lands in question in good faith, for a valuable consideration ; held, that the plea was bad, inasmuch as it did not set forth a purchase from or under the judgment debtor. SCIRE FACIAS to revive a judgment for $873,58, which the plaintiffs recovered in this court against John Cronkhite and Henry Springsteen on the 2d day of May, 1835. Ranney and Grove were summoned as terre-tenants of certain lands, and they pleaded, sccondj that the plaintiffs ought not to have exe- cution &c., because they say, that, on the 21st of October, 1835, the plaintiffs issued a fieri facias on the judgment to the sher- iff of Niagara, by virtue of which writ the sheriff on the same day, the damages, costs and charges aforesaid on the goods and chattels, lands and tenements of Cronkhite and Springsteen, caused to be levied j and this they are ready to verify &c. The plaintiffs replied, and the terre-tenants demurred to the replication. Plea fourth, a fieri facias issued as in the 2d plea, and that afterwards, to wit, on the 18th of April, 1836 3 the sheriff return- ed the said writ offi.fa., endorsed by the said sheriff satisfied, to the clerk of this court at Geneva, where the same was duly filed, and the said clerk entered in the docket of the said judg- ment the satisfaction of the same j and afterwards and before the issuing of the scire facias, to wit, on the first of May, 1838, the said Wells, Ranney and Henry Grove made a bonafide pur- chase, and became possessed in fee simple, and for a valuable consideration by them in good faith paid therefor, of the lands and tenements in the scire facias mentioned whereof they were returned tenants. Verification. Replication to said fourth plea, that after the making of the said return to the fi. fa., to wit, on the 8th of Au- gust, 1838, the said supreme court, by a certain order made in the original action, ordered and granted to the sheriff leave to strike out his return of satisfied endorsed on the fi. fa. then on file, or to alter or amend his said return, or to file a new re- turn to said writ ; and under and in pursuance of the order and leave so granted, the sheriff afterwards, to wit, on the 12th of October 1838, did strike out his return of satisfied on ihefi.fa., NEW-YORK, MAY, 1843. Taylor t>. Ranney. and did make return thereto that the said writof/./a. was re- turned by him unsatisfied by the order and direction of the plaintiffs. Verification. Demurrer and joinder. J. Edwards, for the terre-tenants. E. F. Smith, for the plaintiffs. By the Court, BRONSON, J. The second plea does not show a satisfaction of the judgment. The allegation is, that by vir- tue of the Jieri facias the damages were levied on the goods and chattels, land and tenements of the judgment debtors. It should have been, that the damages were levied of the goods &c. A mere levy upon lands never amounts to satisfaction. (Shepard v. Rowe, 14 Wend.' 260.) Nor does a levy upon goods, even where they are of sufficient value to pay the debt, necessarily amount to a satisfaction. (Green v. Burke, 23 Wend. 490.) Here the levy was upon lands as well as goods, and there is no averment that either or both of them were of sufficient value to pay the debt, or that any sale or satisfaction has followed. The plea is clearly bad. The fourth plea and the replication to it present questions of more difficulty. A new provision was made in 1830, that "when an execution issued upon any judgment shall be re- turned satisfied in whole or in part, such judgment shall be deemed satisfied to the extent of the amount so returned as having been collected on such execution, unless such return be vacated by the court. And upon any execution being so re- turned, the clerk of the court shall enter in the docket of such judgment, the fact that the amount stated in such return to have been levied, has been collected. " (2 R. S. 362, 26.) In April, 1836, the sheriff returned the execution satisfied, and the clerk entered the satisfaction in the docket of the judg- ment. Two years afterwards, Ranney & Grove made a bona fide purchase of the lands of which they are returned tenants. Three months after that, an order was made by this court al- 622 CASES IN THE SUPREME COURT. Taylor v. Ranney. lowing the sheriff to strike out his return upon the execution and make a new one. The sheriff struck out the original re- turn and made a new one, that the execution was returned un- satisfied by direction of the plaintiffs. Upon this state of facts, and assuming that the plea is well pleaded, we are of opinion that the plaintiffs cannot reach the lands in the hands of these terre-tenants. They purchased at a time when the judg- ment had ceased to be a lien, and it would be a great hardship upon them to give such a retroactive effect to the amendment which the sheriff was afterwards allowed to make in his return as would overreach and defeat their title. If it was the fault of the plaintiffs that the original return was wrong, they ought to bear the burden instead of casting it off upon bond fide pur- chasers. If the sheriff made a false return, the plaintiffs may have an action against him ; and it is much more reasonable to confine them to that remedy, than it would be to allow them to visit the fault of the officer upon innocent third persons. In Lownds v. Reinsert) (7 Wend. 35,) the sheriff was sued for the escape of a prisoner from the jail limits, and he produced a forged satisfaction piece which had been filed with the clerk, and upon the authority of which the clerk had entered satisfac- tion in the docket of the judgment. This was held to be no justification of the sheriff. But how it would have been had the sheriff acted upon the supposed satisfaction, as by discharging the debtor from actual custody or delivering up the limit bond, was not decided. Here the terre-tenants have acted and part- ed with their money upon the faith of the satisfaction. And besides, the satisfaction was not based upon a forgery, but upon the official act of a high public officer. It is true that the statute, in providing that the court may vacate the sheriff's return, has not saved the rights of pur- chasers who may have acted upon the faith of the return. But I think the principle established in Jackson v. Benedict, (13 John. 533,) covers the case. The statute for the relief of im- prisoned debtors gave a new execution against the goods and lands of the discharged debtor, in the same manner and form NEW-YORK, MAY, 1843. 623 Taylor r. Ranney. as though he had never been taken in execution, and did not save the rights which any third person might have acquired prior to the discharge. (1 R. L. 349, 3, 7.) And yet, in the case cited, such rights were protected. It was an action of ejectmeni, and both parties claimed the land under sales upon judgments against the same debtor. The plaintiff's judgment was the oldest, and on that the debtor was taken in execution. Pending his imprisonment, another creditor obtained a judg- ment and sold the land to the defendant. The debtor was then discharged, and the plaintiff thereupon issu'ed execution and sold the same land. Although the plaintiff had the oldest lien, the defendant's title prevailed. The court said, " taking the body in execution is a discharge of the judgment, except where otherwise provided by statute, and the imprisonment of the person must be a suspension of the lien. The defendant in such a case would have a right to sell his property, either real or personal ; and the execution allowed by the statute to be taken out after the discharge, against his property, cannot claim priority to a lien created or right acquired by others during the imprisonment of the defendant. " That is a stronger case than the one now before us. There, the second creditor knew that the first had nothing more than a nominal satisfac- tion by the imprisonment of the debtor, and he knew also that the first creditor would be entitled to a new execution in case the debtor should obtain a discharge. Here, the terre-tenants had record evidence that the plaintiffs had obtained actual sat- isfaction of their judgment, and they had no reason to suppose that there had been any mistake on the part of the plaintiffs or wrong on the part of the sheriff, which would authorize the vacating of his return. It is a general principle, that transactions between A. and B. whether in or out of court, shall not have such an effect as will take away the previously acquired rights of third persons ; and this statute should be so construed as not to revive the lien of the judgment, as against a bona fide purchaser. As against 624 CASES IN THE SUPREME COURT. Taylor v. Ramiey. the debtor, his heirs and devisees, and others who will sustain no legal injury, the lien may be revived and carried back to the date of the original docket. But although the principle of the plea is well enough, it does not state all the necessary facts to make out a good an- swer. The terre-tenants say they are bona fide purchasers for a valuable consideration ; but they do not state from whom they purchased. It may be that the purchase was made from one who was an utter stranger to the title of Cronkhite and Spring- steen ; and then the plea is bad, because it does not show that the title under which the tenants hold is paramount to the title of the judgment debtors. If the tenants were aiming at such a defence, they should, perhaps, have said directly that the judgment debtors were not seised of the lands at the time the judgment was docketed, or at any time afterwards. (See Com. Dig. Pleader, (3 L. 14).) But I presume they meant to admit that the judgment was once a lien on the land, and then to set up a purchase from the judgment debtors, or from some per- son who had acquired their title, intermediate the satisfaction of the judgment and the amendment of the sheriff's return. The fact of a purchase from or under the judgment debtors is not stated in the plea \ and without that fact, or a denial of the seisin of the judgment debtors, the plea cannot be supported. Judgment for the plaintiffs. NEW-YORK, MAY, 1843. 625 Gary t. Groman. GARY vs. GBUMAK. The proper measure of damages for the breach of a warranty of wnmdncsi on the ealc of a horse, is the difference between the value of the hone at the time of the sale, considering him as sound, and his value w:th the defect complained of. Accordingly, where the court below rejected evidence of what would have been th real value of the horse at the time of sole if sound, and instructed the jury that the proper measure of damages was the difference between the price paid fa him, and his value with the defect ; held erroneous, and the judgment was there, fore reversed. The price paid, however, is, in such case, strong evidence of what the hone would have been worth if sound, and should always control unless it be clear that the actual value was cither greater or less. Per COWCN, J. The case of Conceit v. Coare, (1 Taunt. 566,) cited and explained. If a horse be sold with warranty of soundness, though he turn out to have been unsound at the time, the vendee has no right to return him and recover back the price paid, unless there bo either an agreement to that effect or fraud on the part of the vendor. Per COWEN. J ON error from the Oneida C. P. Gruman sued Gary in a justice's court for the breach of a warranty of soundness on the sale of a horse ; and, after a trial before the justice, he ren- dered judgment in favor of Gruman, from which Gary appealed to the common pleas. The price paid for the horse was $90, and the breach complained of was a disease in the horse's eyes. On the trial in the common pleas, after Gruman, the plaintiff, had given evidence tending to prove the warranty and the disease, the defendant, in the course of cross-examining one of the plaintiff's witnesses, enquired what the horse would have been worth at the time of the sale, if he had been sound j declaring that one object of the question was, to show the amount of the plaintiff's damages, if entitled to any, under the following rule, which he contended to be the true one, viz. " that the proper measure of damages was the difference between the real value of the horse if sound, and his real value with the defect com- plained of." The court, though they received the answer for another purpose, overruled it for the purpose proposed as above, holding the true measure of damages to be, the difference be- VOL. IV. 79 626 CASES IN THE SUPREME COURT. Gary . Gruman. tween the pnce paid, and the value with the defects. The trial proceeded accordingly ; and the jury were charged to govern themselves by this rule. The defendant below took exceptions to the decision and charge ; and, the verdict and judgment being for the plaintiff below, the defendant brought error to this court on the above and other grounds. J. W. Jenkins, for the plaintiff in error. 0. S. Williams, for the defendant in error. By the Court, COWEN, J. It is unnecessary to enquire whether various exceptions taken in the case, mainly of a formal character, are well founded ; for we think the court be- low erred in laying down the rule of damages. A warranty on the sale of a chattel is, in legal effect, a promise that the subject of sale corresponds with the warranty, in title, sound- ness or other quality to which it relates ; and is always so stated in the declaration when this is technically framed. It naturally follows that if the subject prove defective within the meaning of the warranty, the stipulation can be satisfied in no other way than by making it good. That cannot be done except by paying to the vendee such sum as, together with the cash value of the defective article, shall amount to what it would have been worth if the defect had not existed. There is no right in the vendee to return the article and recover the price paid, unless there be fraud, or an express agreement for a re- turn. (Voorhees v. Earl, 2 Hill, 288.) Nor does it add to or detract any from the force or compass of the stipulation that the vendee may have paid a greater or less price. The very highest or the very lowest and most trifling consideration is sufficient. A promise in consideration of one dollar, that a horse which, if sound, would be worth $100, is so, will oblige the promisor to pay $100 if the horse shall prove totally worth- less by reason of unsoundness, and $50 if his real value be less by half, and so in proportion. Nor could the claim be en- hanced by reason that the vendee had paid $1000. NEW-YORK, MAY, 1843. 627 Cary c. Grammn. The rule undoubtedly is, that the agreed price is strong evi- dence of the actual value ; and this should never be departed from, unless it be clear that such value was more or less than the sum at which the parties fixed it. It is sometimes the value of the article as between them, rather than its general worth, that is primarily to be looked to a value which very likely depended on considerations which they alone could appreciate. Things are, however, very often purchased on account of their cheapness. In the common language of vendors, they are offered at a great bargain, and when taken at that offer on a warranty, it would be contrary to the express intention of the parties, and perhaps defeat the warranty altogether, should the price be made the inflexible standard of value. A man sells a bin of wheat at fifty cents per bushel, warranted to be of good quality. It is worth one dollar if the warranty be true ; but it turns out to be so foul that it is worth no more than seventy- five cents per bushel. The purchaser is as much entitled to his twenty-five cents per bushel in damages as he would have been by paying his dollar, and if he had given two dollars per bushel he could recover no more. So, a horse six years old is sold for fifty dollars with warranty of soundness. If sound, he would be worth $100. He wants eyesight, and thus his real value is reduced one half. The vendee is entitled to fifty dollars as damages ; and could recover no more had he paid $200. The tests of real value or the falling off in that value be- cause the warranty proves to be false is one thing. The price agreed for the horse, said Lord Denman, C. J., in Clare v. Maynard, (7 Carr. fy Payne, 741,) is, I think, " not conclu- sive as to its value, though I think it very strong evidence." Again, " my view of it is, that the fair value of the horse, if sound, is the measure of damages, and that the sum the plain- tiff gave is only the evidence of value." The plaintiff gave 45/. for the horse, and had sold him for 551. with warranty, but was obliged to take him back. This per se was not allowed as a ground for recovering the 10/. difference ; the court saying it was the mere loss of an accidental bargain. But the \alue brought by the horse, on being sold as unsound at a common 628 CASES IN THE SUPREME COURT. Gary v. Gruman. horse market, was received as evidence of the loss ; and the difference between the price thus obtained, and the price paid, seems to have been taken as the measure of damages, there being no proof of the value of the horse as a sound one, inde- pendently of the price. Some items of special damage were claimed in the declaration over and above the difference of value, part of which were allowed and part disallowed. The only point decided) on the case coming before the whole court, was, that the accidental loss of a good bargain, on the. re-sale, did not form a proper item of claim, it being demanded in the declaration as the loss of a bargain. It was there admitted, however, that the jury might otherwise have considered the price obtained on the re-sale as evidence of the real value. Lord Denman cited the case of Cox v. Walker, where a horse was sold to the plaintiff for 100/., with warranty of soundness, and the plaintiff was soon after offered 140/. for him. The horse proved unsound and the plaintiff was obliged to sell him for 4:91. Is. The chief justice left the offer of 140/. to the jury as evidence of the real value j and they found a verdict for the difference between 140/. and 491. Is. ; viz. 90/. 13s. This went on the express direction of Lord Denman, that the plain- tiff was entitled to recover the actual value of the horse as a sound one at the time, after deducting what he brought as an unsound one. That direction was approved by him, after the case had been argued at the bar, and his attention had been again recalled to the point by the argument in Clare v. May- nardj (6 Jldolph. fy Ellis , 519.) In the nisi prius report of this case, Curtis v. Hannay (3 Esp. R. 82) appears to have been mentioned by Lord Denman as bearing in favor of his rule. That action was for the price of a horse, at a time when the notion, now exploded, prevailed, viz. that the buyer might return the horse, and sue for the money paid. The de- fendant accordingly had offered to return him, but the plaintiff refused to receive him, because he had been improperly treated. Lord Eldon thought the refusal proper under the circumstan- ces ; and, contrary to another rule now settled, he refused to NEW-YORK, MAY, 1843. 629 Gary . Gruman. allow a recoupment. But he said, " he took it to be clear Jaw, that if a person purchase a horse which is warranted, and it afterwards turn out that the horse was unsound at the time of the warranty, the buyer might, if he pleased, keep the horse, and bring an action on the warranty, in which he would have a right to recover the difference between the value of a sound horse and one with such defects as existed at the time of the warranty." Bridge \. Wain, (1 Stark. Rep. 504,) \\asa war- ranty that "certain pieces of scarlet cloth, taken by the plaintiff with a view to a sale in the" Chinese market, were scarlet cut- tings. Turning out not to be so, Lord Ellenborough charged the jury that the plaintiff was entitled to recover such a sum as he would have received had the warranty been true ; and he directed the jury to allow the value of the goods in the Chinese market. The case was moved at the bar on the question, and a new trial refused. The rule has certainly been laid down without express quali- fication, that the measure of damages is the difference between the real value of the horse and the price given. (Caswell v. Coarej 1 Taunt. 566.) This was right in the particular case. No evidence of actual value, independently of the price paid, was given or offered. Voorhees v. Ear/, before cited, was a warranty that 60 barrels of flour were superfine. They proved to be of inferior quality ; and, after looking at the cases, we thought they gave the measure of damages as it should stand on principle, viz. " the difference between the value of the 60 barrels, at the time of the sale, considered as superfine flour, and the value of the inferior article sold." (See 2 Hill, 291.) In 2 Phil. Ev. 105, Jim. ed. of 1839^ the rule is laid down thus : " If he (the purchaser) keep the horse, he may recover the difference between the value of such horse perfectly sound, and the value of the identical horse at the time of the warranty." The author adds several cases of enhancement arising from spe- cial damage, and illustrating a class of exceptions which we admitted to exist in Voorhees v. Earl. Restricting the rule in Caswell v. Coare to the case as it stood on the evidence 630 CASES IN THE SUPREME COURT. Adsit v. Brady. and so it should clearly be restricted there is no discrepancy in the English cases. It is impossible to say, nor have we the right to enquire, whether the real value of the horse in question, supposing him to have been sound, would have turned out to be more or less than the $90 paid. Suppose the jury thought, with one wit- ness whom the court allowed to state such value for another purpose, that it was not more than $80 j the plaintiff then re- covered ten dollars, not on account of the defect, but because he had been deficient in care or sourtd judgment as a purchaser. On the other hand, had the horse been actually worth $100, the defendant would have been relieved from the payment of the ten dollars because he had made a mistake of value against himself. The cause might thus have turned on a question en- tirely collateral to the truth of the warranty. In confining the defendant to the rule of Caswell v. Coare, as an unqualified one, we think the court below erred ; and that for this reason the judgment must be reversed. We di- rect that a venire de novo issue from that court ; and that the costs shall abide the event. Rule accordingly. ADSIT and others vs. BRADY. When an individual sustains an injury by the misfeasance or nonfeasance of a public officer who acts or omits to act contrary to his duty, the law gives redress to the injured party by action adapted to the nature of his case. Per BR.ONSON, J. It is the duty of a superintendent of repairs on the canal, when he finds a break in it or a sunken boat obstructing the navigation, to stop the breach or remove the ob. etruction without waiting for orders from the commissioners ; and by omitting to do so he will render himself liable to persons sustaining damage thereby. Otherwise, if the omission to repair resulted from obedience to orders given by the commissioners. Per BRONSON, J. The fact of such orders having been given, however, will not be presumed, but must be shown affirmatively. Per BRONSON, J. NEW-YORK, MAY, 1843. 53 j f Adsit r>. Brady. Where a declaration against a superintendent stated, in subfUnce, that a boat which had been sunk in the canal rendered the navigation unsafe and dangerous, and, that though the defendant had notice &c., he negligently suffered the boat to remain, whereby the plaintiff's boat in parasing along the canal was injured; held, sufficient to show the defendant liable, notwithstanding the want of an averment that he had public money in his hands for the purpose of making re. pairs. Held, further, that the declaration need not aver the neglect of the defendant to have been wilful and malicious. Whether, in a civil action against commissioners of highways for non-repair of bridges &,c., the declaration must aver that the defendants had fundu, quere. The cases of Bartlett v. Crazier, (17 John. Rep. 439,) The People v. The Com. missioner* d>c. of Hudson, (7 Wend. 474,) and The People v. Adrit, (2 Hill, 619,) commented on. -nrjl ACTION on the case against the defendant for neglecting his duty as superintendent of repairs on the Erie canal, in con- sequence of which the plaintiffs sustained an injury. The first count alleged that the defendant, on the 29th of April, 1842, was, and ever since has been, a superintendent of repairs of the Erie canal, having section number one of the canal com- mitted to his charge ; and as such superintendent of repairs it was his duty to keep said section of the canal in good repair, and to remove therefrom all obstructions to the convenient and safe navigation thereof, so that boats and vessels usually navigating the canal might safely and conveniently, and with- out damage, pass upon and navigate the section. That the plaintiffs were the owners of the canal boat named Angelica, used in navigating the canal for the transportation of goods &c. That a certain other canal boat was, on the said 29th of April, sunk in the waters of the canal in the section thereof under the defendant's charge, to wit, at Watervliet, in such a position and in such a manner as to obstruct the navigation of the ca- nal, and render the navigation unsafe and dangerous, of all which the defendant had notice ; and thereupon it became and was the duty of the defendant, as such superintendent, to re- move the sunken boat. Yet the defendant, not regarding his duty &c., did not remove the sunken boat, but negligently and carelessly, and contrary to his duty in that behalf, suffered the 632 CASES IN THE SUPREME COURT. Adsit v. Brady. boat to remain and continue sunk in the canal from the said 29th of April until the 15th of May in the year aforesaid, ob- structing and rendering dangerous the navigation &c. By rea- son whereof the plaintiffs' boat Angelica, on the 6th of May in the year aforesaid, the boat being then laden with goods, wares &c., of great value, in navigating and passing along the canal at the place aforesaid, ran against and upon the sunken boat and was thereby greatly damaged, as were also the goods with which the plaintiffs' boat was laden, and the plaintiffs' boat and goods were sunk in the waters of the canal. By reason whereof &c. The second count was substantially like the first. The defendant demurred to the declaration, assigning the fol- lowing causes : 1. It is not alleged that the defendant was di- rected by the canal commissioners, or either of them, to make repairs on his section, or to remove the sunken boat ; 2. It is not alleged that the defendant had any moneys in his hands for the purpose of making repairs or removing obstructions ; 3. It is not alleged that the plaintiffs' loss was occasioned by the malicious or wilful neglect of the defendant ; 4. The defendant, being an agent of the stale, is not personally liable to the plaintiffs ; and 5. The defendant being a sub-officer and bound to act under the direction of the canal commissioners, or one of them, he is not liable to the plaintiffs in this action. The plaintiffs joined in demurrer. S. Stevens, for the defendant. S. H. Hammond^ for the plaintiffs. By the Court, BRONSON, J. When an individual sustains an injury by the misfeasance or nonfeasance of a public offi- cer, who acts or omits to act contrary to his duty, the law gives redress to the injured party by an action adapted to the nature of the case. This principle is so well settled that it is only necessary to enquire whether there be any thing in this case to take it out of the operation of the general rule. Superintendents of repairs on the canals are appointed by the canal board, (1 R. S. 229, 69,) and give bond for the NEW YORK, MAY, 1841 533 Adsit v. Brady. faithful execution of their trust, (Id. p. 236, 99.) The statute further provides, that " it shall be the duty of each superin- tendent, under the direction of the canal commissioners, to keep in repair such sections of the canals and works connected there- with, as shall be committed to his charge j to make all necessary contracts for that purpose, and faithfully to expend all such moneys as shall be placed in his hands by the canal commis- sioners, or the commissioners of the canal fund." (Id. 100.) The next section repeats, that the superintendent " shall be un- der the direction of the canal commissioners, and especially of the acting commissioner having charge of the line of the canal on which such superintendent is employed." This means no more than that the superintendent shall be under the general direction of the commissioners, and shall follow their instructions, if any are given, as to the extent and manner of making repairs and the mode of discharging his other duties. It does not mean that the superintendent, when he finds a break in the canal or a sunken boat obstructing the navigation, shall wait a month for the next visit of the commissioner, or send a messenger for orders, before he stops the breach or removes the obstruction. The thing is preposterous. (Shepherd \. Lin- coln, 17 Wend. 250. )(a) The declaration states that the sunken boat obstructed and rendered the navigation of the canal un- safe and dangerous, and that the defendant knew it. That it was his duty to remove the obstruction cannot be doubted. It was said at the bar that an action will not lie against a deputy of the sheriff for nonfeasance. But the defendant, al- though subject to the direction, is not a deputy of the commis- sioners ; and before he can justify this apparent neglect of du- ty, he must show that the omission resulted from obedience to orders. It will not be presumed that the commissioners, or any other public officer, gave an illegal or unjustifiable com- mand. The want of an averment that the defendant had public (a) See JfFadden v. Kingtbury, (11 Wend. 667.) VOL. IV. 80 (534 CASES IN THE SUPREME COURT. Adsit v . Brady. money in his hands for the purpose of making repairs, was much relied on, and we are referred to cases to prove such an averment necessary. In Bartlett v.' Crazier, (17 John. 439,) the action was against an overseer of highways for not repair- ing a bridge, in consequence of which the plaintiff had sustain- ed an injury. It was said by one member of the court, that means to make the repair should have been averred j but the case turned mainly on the ground that the action, if it could be maintained against any one, should have been brought against the commissioners, instead of the overseer of highways. In The People v. The Commissioners fyc. of Hudson, (7 Wend. 474,) we refused to compel the commissioners, by mandamus, to re-build a bridge which would cost $700, when they could not, by law, have funds to more than $250, and when in fact they had none at all. In The People v. Adsit, (2 Hill, 619,) we held that the commissioners of highways were not answerable criminally for the non-repair of bridges without an averment in the indictment that they had funds. It has not yet been decided that an individual pursuing a civil remedy must make such an averment ; and as an original question I should think it enough to show that the law imposed the duty of repairing, and then leave it to the officer to excuse himself, if he can, by showing the want of funds. But we need not settle that ques- tion. For the purpose of enabling superintendents of repairs to discharge their duties, they have been authorized by law to make contracts binding the state ; (1 R. S. 236, 99 ) and if the defendant had no public money, he might have contract- ed for the removal of this obstruction. And besides, he either had, or might have had, funds in his hands. It is expressly provided, that the commissioners of the canal fund shall ad- vance money in sums not exceeding $5000 to each superinten- dent, for which an account is to be rendered as often as once in sixty days. (Id. 194, 6 ; Id. 236, 100 to 103. And see Stat. 1837, p. 518, $ 7, 8.) The defendant either had funds or he was in fault for not having them ; and where that ap- pears, it clearly cannot be necessary for the plaintiff to make NEW-YORK, MAY, 1843. 535 MuiwcJ r. Lewi.. any averment on the subject. If some of these provisions had not been overlooked by the counsel, this objection would, I presume, have been abandoned. It is said that the defendant had a discretion as to what re- pairs were needed, and consequently that his neglect should have been charged to be wilful and malicious. (Tompkins v. Sands, 8 Wend. 462.) But clearly the defendant had no dis- cretion to leave this dangerous obstruction in the canal. On the facts stated in the declaration, it was his duty to remove the nuisance without any unnecessary delay. Judgment for the plaintiffs. MUXSELL vs. LEWIS. &. mere jta prccarium, or right resting in courtesy e. g. an anticipated donation bom government is not assignable. Per COWEN, J. L. and W., having contracted with the canal commissioners to construct certain bridges on the Chcnango canal by the 15th of October, 1836, and having com- mcnccd the work, agreed with M. that he should go on and complete it at his own expense, and be entitled to receive from the canal commissioners the com- pensation provided for in the original contract The work was accordingly completed by M., and he received his pay. Afterwards, an award was made in favor of L. and W. on account of the original contract, pnmiant to an act passed in April, 1836, providing for extra allowances to contractors on tho Chcnango canal, (Sets. L. '36, p. 201,) and one half the sum awarded was paid over to L. Held, in an action against him by M. to recover the money thus re- ccived, that the letter had no right to it. NELSON, Ch. J. dissented. Even in the cam of a chose in possession, a sale carries no more than the legal right which the vendor had at the time. Per GOTTEN, J. ASSUMPSIT for money had and received, tried at the Broome circuit, in August, 1842, before MOKELL, C. Judge. The case was this : Lewis (the defendant) and one Weed agreed in writing with the canal commissioners to construct certain bridges on the southern division of the Chenango canal. The 636 CASES IN THE SUPREME COURT. Munsell t. Lewis. contract was dated in November, 1834, and the work was to be completed by the 15th of October, 1836. On the 29th of January, 1836, after the work had been commenced, Lewis and Weed assigned their interest in the contract to the plain- tiff. It was stipulated in the contract of assignment that the plaintiff should complete and fulfil the original contract at his own cost and expense and save Lewis and Weed harmless therefrom, he to have the benefit of what they had previously done, and to pay such expenditures as they had made for tools and quarrying stone. It was also stipulated that the plaintiff should " receive the pay from the canal commissioners for building and completing said bridges according to the [original] contract above mentioned, except $130 received by Lewis which is to be retained by him as a compensation for" certain sawed timber, " and except $70 received by Weed, which he is to retain as a compensation for" certain hewed timber. The plaintiff executed the work to the satisfaction of the canal commissioners and received his pay. On the first of March, 1837, one of the canal commissioners paid to the defendant $300, being the half of a sum awarded in favor of the defendant and Weed on account of their contract with the state, under the act of April 16th, 1836, providing for extra allowances to contractors on the Chenango canal. (Sess. Laws of 1836, p. 201.) The plaintiff claimed that, in virtue of the arrange- ment between him, Lewis and Weed, he was entitled, to the money thus awarded, and asked a verdict for the amount re- ceived by the defendant, with interest. The circuit judge was of opinion that the money belonged to the original contractors, and directed a nonsuit. The plaintiff's counsel excepted, and now moved for a new trial on a bill of exceptions. J. A. Spencer , for the plaintiff! J. A. Collier, for the defendants. NEW-YORK, MAY, 1843. 537 Munscll r. Lewis. By the Court, COWEN, J. The question is, whether the assign- ment of the compensation to come from the slate carried a right not only to the moneys the state had agreed to pay, but what it might afterwards award as a gratuity. By the terms of the sub-contract the plaintiff was to receive his pay from the canal commissioners according to the contract of the state. He was, on his part, to perform the stipulations in the contract, and pay to Lewis and Weed the price agrcul upon as the value of the bargain made between himself and them. After their bargain was made, a statute passed authorizing extra allowances to the contractors on the Chenango canal, under which sfn award was made in favor of Lewis and Weed of $600. One half of this having been paid to Weed, the plaintiff sues for the money as belonging to him. The statute authorized the extra allowance to contractors. The words are, " Those contractors who entered into contracts for the construction of any part of the Chenango canal &c., shall be entitled to receive, on the completion of their respec- tive jobs," the extra allowance deemed just and equitable by the canal board. Under this act the canal board awarded the moneys in question to Lewis and Weed ; and it was paid to them by one of the canal commissioners according to the terms of the award. (See Sess. Laws of 1836, ch. 149, p. 201 ; and Ass. Doc. 121, on which the statute was founded.) The plaintiff was neither the contractor with the state, nor was there any privity between him and the state. He paid Lewis and Weed nothing on account of what the state might afterwards give them, but took a stipulation for the right to receive the contract price. His obligation was to them. It was to furnish the residue of the materials and do the work which was wanting to finish the job. The whole was a mere sub-contract. Any one agreeing with him to assist him in his job would be in one sense a canal contractor, and come as much within the statute as himself. The compensation did not consist of all the moneys which should be paid to Lewis and 638 CASES IN THE SUPREME COURT. Munsell v. Lewis. Weed ; but the pay according to the contract with the state. The extra allowance is not only out of the words, but was evidently awarded to Lewis and Weed on account of the sacrifices personal to themselves which obliged them sell out their interest in the best way they could ; and we are called on to do the office of snatching a charitable donation from the man for whom it was intended, and giving it to another who has suffered nothing. (See Assembly Doc. of 1836, JVb. 121.) But if the real suffering was on the side of the plaintiff, which the form of the gift and the report on which it was founded forbid us to suppose, what rule of law transfers a gift from an unworthy donee to another, because his wants may be more obvious 1 That the extra allowance was a mere gratuity, admits of no dispute. No one will pretend that the sum allowed was due from the state. The case is the same as if the money had been presented to^ny man who had never dealt with the plaintiff. It is like a pension given for sacrifices in the public service, or an accidental loss by fire. Being entirely independent of the con- tract, in contemplation of law, it cannot therefore be claimed that it passed as an incident to the stipulated wages due from the state ' f nor can it be supposed that it entered into the intent of the bargain between the defendant and the plaintiff. All that passed was an equitable right in the legal interest of the defendant at the time. The defendant and his co-contractor held the whole legal interest. That and that only was trans- ferred. Even in case of a chose in possession, a sale carries no more than the legal right at the time. A man sells and quit claims all right in a farm to the grantee in fee, the former having no title, or but an estate for years. Though the absolute estate afterwards come to him by descent or purchase, this shall not enure to the grantee's benefit. (a) For this there are two rea- (o) See McCarty v. Leggett, (3 Hill, 134.) NEW-YORK, MAY, 1843. 539 *. Lewfc. sons ; one that the intent to pass more than his right is not to be supposed. Both parties look to that as the measure of com- pensation. Another is, that the right which the grantor after- wards acquires is a mere possibility, and therefore incapable of being sold. (Co. Litt. 446, p. 265 a.) The same rule pre- vails and is still more fully illustrated by the books in relation to personal property. (Long on Sales, 4, Boston ed. of 1839, and the cases there died.) The last point of view is of itself decisive. Assume that here was an intent to transfer a right to all the compensation to be paid by the canal commissioners in virtue of the contract, and moreover of any interest or gratuity afterwards to be grant- ed by the state in respect to the contract. We are met at the outset by the words of Littleton. (Co. Litt. 446.) "Also these words .which are commonly put in such releases, scilicet, (quaequovumodoinfuturumhaberepotero,) are as voide in law : for no right passeth by a release but the right which the releasor hath at the time of the release made." The same rule is laid down by all the cases, in regard to personal property. " If the subject of the intended sale have no existence actually or potentially, there can be no valid sale." (Long on Sales, 3 ed. before cited.) Again ; " A mere possibility or contingency not coupled with an interest in, adhering to, or growing out of property, cannot be the subject of a valid sale. A grant of the wool of all the sheep the grantor shall ever have is void." (Id. 4 ; Hob. 132 ; Carleton \. Leighton, 3 Meriv. 667, 671.) An assignment of the freight, earnings and profits of a whaling- ship, will not carry the oil collected by her in a subsequent voy- age. (Robinton v. Macdonnell, 5 Mavle $' Selw. 228, 236.) Lord Ellenborough, C. J. said, " At the time of this assign- ment, C. & P. [the owners of the ship,] had no property actual or potential in this oil ; it was altogether matter of chance whether any of it would have been obtained ; and evrn the voyage in which it was obtained does not appear to have been in contemplation." A case and argument more in point with the present could scarcely have been framed. Who could 640 CASES IN THE SUPREME COURT. Munsell v. Lewis. have contemplated with any degree of confidence that the agents of the state would volunteer in giving away moneys to to the contractors or any body else 1 I shall not, however, go much into a question which has been successively considered and illustrated by Sir Thomas Plumer in Campbell v. Mullettj (2 Swanst. 551, 571, 576 to 579,) by Washington, J. in Vasse v. Comegysj (4 Wash. C. C. Rep. 570, 573, 4,) and by Story, J., in the same case on error. (1 Pet. 193, 213.) All agreed, that a future voluntary donation or bounty from a government, is not property, and cannot be assigned in advance. The first rase held that even a claim against a government for the wrong- ful seizure of property was not assignable. So held Mr. Jus- tice Washington in deciding Vasse v. Comegys at the circuit j and the judgment was reversed on the sole ground that the sub- ject assigned was not obtained under an award bestowing it as a bounty, but as a debt due from the government. (a) Randal v. Cockran, (1 Ves. sen. 98,) related to the assignment of prop- erly captured under letters of marque, for the benefit of the assignors ; and it was held that, in such a case, the award of the commissioners for distribution enured to the benefit of the as- signees. No case goes farther. If the property in the subse- quent donation did not here pass to the plaintiff, the action for money had and received does not lie. To warrant such an ac- tion the defendant must have received moneys to which the plaintiff is entitled as actual proprietor under a contract exe- cuted. He must have jus in re. Even if Lewis and Weed may be considered as having agreed to pay over the moneys on receiving them, the contract is but executory, and the action should have been brought against both. At the utmost, the plaintiff had but jus ad rem. (a) As to the assignability of pay and pensions -accruing under grants from gov- ernment, sec Law Magazine (London) Vol. 26, p. 350, ct seq. Sec also Browning v. Bettis, (8 Paige, 568,) where it was held that the salary or compensation of a public officer, to become due at a future time for services yet to be completed, could not be reached by a creditor's bill in chancery. NEW-YORK, MAY, 1843. 54 J Munsell t. Lewi*. I admit that a man may bind himself to pay over moneys to be recovered even for a personal tort. He cannot pass them by assignment eo nomine, but he may bind himself by promise to pay them when received by him. (Tke People ex rel. Stanton v. Tioga C. P., 17 Wend. 73, and cases there cited.) I agree that a man may contract to sell lands or goods yet to be purchased by him in market. (Hibblewhite v. JU'JMoriwe, 5 Mees. tip Welsh. 462, overruling Bryan Y. Lewis, 1 Ry. 4r Mood. JV. P. Rep. 386.) But I deny that a man may traffick even to that extent in the charity of his neighbors, or the pros- pective bounty of his government. It is enough to say here that no such thing was attempted ; at least no intent of that kind is apparent on the face of this contract. But suppose it otherwise. A contract in prasenti to sell goods of which the vendor is not owner at the time, and has no other means of ob- taining but by going into the market and purchasing them, has been holden void as a wager, and contrary to public polii y. (Bryan v. Lewis, ubi supra.) That has been overruled ; and the contract enforced, not as a sale, but as a promise to deliver the goods at a future day. But would such a decision have been overruled if it had related to moneys yet to be received on charity, or as the bounty of the government ? A man's house and goods are lost by fire ; can he trade in the pro of his misfortune ? Or, to put the case in the words of Sir Thomas Plumer : " If a partnership sustained an accidental loss by fire, and an individual were to make a donation to two of the partners, in compensation of their loss, would that be part- nership property 1" (2 Swanst. 571.) To follow the hypo- thesis into the consequences contended for here, suppose the firm had made an assignment of their effects ; could the as- signees claim it ? The supposition would be scandalous, even if the assignment had stipulated for such a consequence. \Vhat rule or what case ever extenden the doctrine of assignment to matters of imperfect obligation, or, above all, sanctioned a traffick in the charities of life begging for the benefit of as- signees ? The impolicy and wickedness of such a thing is m VOL. IV. 81 642 CASES IN THE SUPREME COURT. Munsell . Lewis. sufficient answer. If community have been plundered by such bargains, the law has not yet lent itself to aid the conspiracy. To authorize similar practices upon the government, would be, if possible, still more scandalous. I have heard, to be sure, that contractors considered themselves as holding a sort of property in these extra allowances, from the facilities of ob- taining them on the faith of united representations. That, how- ever, does not change their legal character from mere naked donations. Allowing them to be made a subject of trade, therefore, is equally objectionable on considerations applicable to private charity, but more so, as multiplying individuals who may have an interest in deceiving the public agents. Independently, however, of public policy, I am of opinion that a simple expectancy in which the assignor has no interest, and which is unpurchaseable, can neither be assigned, nor would a contract for future assignment be valid. A mere jus precariuin,) a right resting in courtesy, is no more a matter of bargain than the virtue from which it emanates. It is not necessary to go so far in order to see that this case is with the defendant. It is enough to see that* the subject could not have passed by an assignment containing words of present transfer, even to the defendant's assignees in bankrupt- cy or under the insolvent act ; (Carleton v. Leighton^ Me-riv. 667, 671 ) a fortiori by an assignment which could in no view carry any thing bevond an equitable interest. In any view, I think the nonsuit was right ; and that the motion for a new trial should be denied. BRONSON, J. concurred NELSON, Ch. J. dissented. New trial denied. NEW- YORK MAY, 1843. 543 Greonvault P. Davit. GREENVAULT vs. DAVIS. In order to maintain an action on a covenant of warranty or for quiet enjoyment in a deed of lands, a lawful eviction in some form must be shown. The eviction, however, need not be by proccst of lam ; but it i enough that, on ft valid claim being made by a third person under title paramount, the plaintiff voluntarily yielded up the possession. Where the plaintiff thus surrenders possession without a legal contest, he as. sumcs the burden of proving that the person entering had title paramount. As a general rule, the consideration clause in a deed of lands is open to explana- tion by parol proof. But in an action on a covenant of warranty brought by one to whom the grantee in the deed had conveyed ; held, that the grantor was not at liberty to show the consideration paid for the land to be less than the sum expressed in the deed. Otherwise, however, had the action been between the immediate parties to the deed. Scmble, per NELSON, Ch. J., and COWEN, J. ; BROXSOX, J. contra. COVENANT, tried at the Niagara circuit, in September, 1841, before DAYTON, C. Judge. The action was on a covenant of warranty contained in a deed of certain lands, dated April 5th, 1836, executed by the defendant to one Daniel Price. The declaration stated that the defendant, in consideration of five hundred dollars to him paid, conveyed to Price in fee, with covenant, &c. ; that Price entered and was possessed, and, being seised, he, on the 6th of June, 1836, in consideration of $500, conveyed the property to the plaintiff in fee, who enter- ed, &c. It was then averred, that, before the defendant con- veyed to Price, the land was incumbered by a mortgage to one Lewis Blodget, which had been given by David Eddy while he was seised of the land j that after default in paying the mortgage debt, the land was sold to Blodget on the 26th of October, 1839, by virtue of the power of sale contained in the mortgage ; and that Blodget thereupon entered and took pos- session of the land, and expelled and dispossessed the plaintiff. The defendant pleaded, 1. non estfactum, and 2. that Blodget did not enter and expel the plaintiff, concluding to the country. On the trial, the defendant's deed to Price was proved and (J44 CASES IN THE SUPREME COURT. Grccavault . Davis. given in evidence, and Blodget testified, that after he purchased on the foreclosure of the mortgage, and on the first day of April, 1840, he put one John Gill in possession of the land as his tenant, and that Gill was still in possession and paid rent to the witness. The defendant moved for a nonsuit, on the ground that no eviction had been proved. The motion was denied, and the defendant excepted. The defendant then of- fered to prove that the consideration money paid by Price (the plaintiffs grantor) to the defendant, was less than the amount expressed in the deed. The judge excluded the evidence, and the defendant excepted. Verdict in favor of the plaintiff for the consideration money expressed in the deed, with interest. The defendant now moved for a new trial on a bill of exceptions. S. Stevens, for the defendant. H. R. Selden 4* E. J. Chase, for the plaintiff. By the Court, BRONSON, J. As the premises were at the time unoccupied, the defendant's deed of bargain and sale to Price carried the legal seisin of the land, which subsequently passed by the deed of Price to the plaintiff. And besides, the pleadings admit that the two grantees respectively entered and were seised of the land. The only ques.tion is upon the ous- ter of the plaintiff. Blodget, having a paramount title, enter- ed and put Gill in possession as his tenant, who still holds the land. Was that such an eviction as would give the plaintiff an action on the defendant's covenant ? On an express cove- nant of warranty or for quiet enjoyment in a deed, it is settled that there must be a lawful eviction in some form before an ac- tion can be maintained. ( Waldron v. McCarty, 2 John. 471 ; Kortz v. Carpenter j 5 John. 120 ; Kent v. Welch, 7 John. 258; Vahderkarrv. Vanderkarr, 11 John. 122 ; Kerr v. Shaw, 13 John. 236 ; Webb v. Alexander , 7 Wend. 281 ; and see Rickert v. Snyder, 9 Wend. 416.) But the rule is otherwise on the covenant implied from the word demise in a lease for years, and the lessee may have an action if he has been kept out of possession by one having a title superior to that of the NEW YORK, MAY, 1843. 545 Greenvault t. D*v- lessor, although there has been no eviction. (Holder v. Joy/or, #06. 12 ; Grannis v. C/ar/c, 8 Cote. 36.) But as covenants can no longer be implied in any conveyance of real estate, (1 R. S. 738, 140,) the distinction which has been mentioned be- tween cases upon express and those upon implied covenants has ceased to be of any importance in this state. There are some dicta in the books which favor the opinion that there must be an eviction by process of law, but I have met with no case where the point was so adjudged. In Green* by \. Wilcocks, (2 John. 1,) the fact was mentioned by Spen- cer, J. that there was no averment in the declaration of an eviction by process of law ; but, so far as related to the cove- nant of warranty, the decision turned upon the want of an alle- gation " that the ouster was committed by any person having right, or superior title." Both of those facts should have been alleged. (Kelly v. The Dutch Church, 2 Mil, 105.) In Lan- sing vt Van Jllstine, (2 Wend. 563, note,) Savage, C. J. said, " that, to constitute an eviction by a stranger, there must be a disturbance of the possession under a paramount title by pro- cess 'of law" But that remark was not necessary to the decis- ion of the cause. It was an action of covenant for the non- payment of rent, and the defendant pleaded in bar an eviction from three-eighths of the premises by a stranger. This made out a case for an apportionment of the rent, but not a good bar to the whole action j and that was the point decided. And besides, the pleas stated an eviction by due process of law. to wit, by a judgment and writ of habere facias possessionern in ejectment. It is evident, therefore, that the question under consideration did not arise in that case. There are some other cases where an expulsion by legal process is roentioned,(o) and some of the precedents in pleading are that way, but the point seems never to have been adjudged. Upon principle, I can see no reason for requiring an eviction by legal process. Whenever the grantee is ousted of the pos- (a) See the dictum of Walworth, chancellor, to that effect in Hunt T. (ante. 345. 348.) 646 CASES IN THE SUPREME COURT. Greenvault v. Davis. session- by one having a lawful right to the property, paramount to the title of the grantor, the covenants of warranty and for quiet enjoyment are broken, and the grantee may sue. In Foster v. Pierson, (4 T. R. 617,) the declaration was upon the covenant for quiet enjoyment in a lease, and it was alleged for breach that a third person, having lawful right &c., entered and expelled the plaintiff. The defendant demurred on the ground, among others, that the declaration did not show an eviction " by, or in pursuance of, or under any legal process of law ;" but that point was abandoned on the argument, and judgment was rendered for the plaintiff. (See also 2 Saund. 181 6. note 10 j Ludwell v. Newman, 6 T. R. 458 ; Hodg- son v. The E. 1. Company, 8 T. R. 278.) In Hamilton v. Cutts, (4 Mass. R. 349,) the grantee voluntarily surrendered the possession to the rightful owner without suit, and this was held a sufficient ouster to entitle him to an action on the cove- nant of warranty. That decision was approved by thi court in Stone v. Hooker, (9 Cowen, 154.) When the grantee sur- renders, or suffers the possession to pass from him without a legal contest, he takes upon himself the burden of showing that the person who entered had a title paramount to that of his grantor. But there is no reason why such surrender, without the trouble and expense of a law suit, should deprive him of a remedy on the covenant. The grantor is not injured by such an amicable ouster. On the contrary, it is a benefit to him ; for he thus saves the expenses of an action against the grantee to recover the possession. It may be inferred in this case that the premises were unoc- cupied ; but the legal seisin was in the plaintiff. Blodget then entered and still holds the land by virtue of his paramount title. This was an ouster or disseisin of the plaintiff, and he is well entitled to an action on the defendant's covenant, Was the defendant at liberty to show that the consideration paid for the land by Price was less than the sum expressed in the deed 1 I think not. That the consideration clause in a deed is, as a general rule, open to explanation by parol proof, NEW-YORK, MAY, 1843. 347 Greenvault r. Davis. has been fully settled in this and most of the other states. The cases on this subject were elaborately reviewed inJH'Crea v. Purmortj (16 Wend. 460.) (6) But there are exceptions to the general rule, and this case is, I think, among the number. In Garrett v. Stuart, (1 McCord, 514,) Johnson, J. said, he was inclined to the conclusion that evidence might be received to show that the consideration was either greater or less than that expressed in the deed ; and a similar remark was made by Parker, C. J. in Bullard v. Briggs, (7 Pick. 533.) But the point decided in those cases has no direct bearing upon the question now before us. In Morse v. IS/iattuck, (4 N. Hamp. R. 229,) the action was upon the covenant of seisin in a deed which expressed a consideration of $900, and, for the purpose of reducing the damages, the defendant was allowed to prove that the consideration actually paid was only $100. And in a like action where the consideration expressed in the deed was only $1800, the plaintiff was allowed to enhance the damages by proving that the consideration actually paid was $2800. (Belden v. Seymour, 8 Conn. R. 304.) This was held by three judges, Bissell, J. giving no opinion, and Hosmer, C. J. dis- senting. There is one view of the question involved in these two cases and I have met with no other decision to the like effect which was not noticed by either of the learned courts j but which is, I think, entitled to a good deal of weight. What- ever he the price actually paid for the land, the parties may enter into such stipulations in relation to the title as they think proper. Covenants may be wholly omitted, or they may be so framed as to entitle the grantee to recover either more or less than he paid, in case he shall be evicted. When the deed contains no covenant but that of seisin or general warranty, the consideration is not inserted as a mere matter of form, nor for the sole purpose of giving effect and operation to the deed ; but it is inserted for the further purpose of fixing the amount (&) Sea Coven $ Hilft Notet to PUl. Ev. p. 1441 rt f . 648 CASES IN THE SUPREME COURT. Greenvault v. Davis. of damages TO which the grantee will be entitled in case he is evicted Taking the consideration clause and the covenant together, we find the agreement to be, that, in case the title fails, the grantor will pay and the grantee receive the particular sum specified in the deed ; and the one party cannot be re- quired to pay more, nor the other to receive less than that sum, without a palpable violation of the contract. At least, such are my present impressions, though my brethren are inclined to a different conclusion. But it is not now necessary to de- cide the question. In both of the cases which have been mentioned, the ques- tion arose between the original parties to the contract. The grantee sued his immediate grantor. But here the defendant's grantee has conveyed to the plaintiff, who has been evicted, and he sues as assignee on a covenant running with the land. And whatever the rule might be if the question were between the original parties to the deed, the defendant is not at liberty to set up this defence against the plaintiff. The original par- ties knew of course what was the true consideration for the grant ; but it is not so with third persons. They have no means of knowing what consideration was paid but from what the parties have said by the conveyance. The defendant cove- nanted with Price and his assigns. When he inserted the con- sideration and covenant in the deed, he virtually said to any one who might afterwards come in as assignee, that he had re- ceived the whole five hundred dollars, and would stand bound to that extent that the title should not fail. The plaintiff acted upon that assurance and parted with his money, and the de- fendant should not now be heard to gainsay the admission. It is against good conscience and honest dealing to set up this defence, and the defendant is estopped from doing it. (Wei- land Canal v. Hathaway, S Wend. 480 ; Dezell v. Odell, 3 Hill, 221, per Bronson, /.) This point was virtually de- cided in Suydam v. Jones, (10 Wend. 180.) In that case the the plaintiff sued as assignee on the covenants of warranty and for quiet enjoyment in the defendant's deed to one Sandford . NEW-YORK, MAY, 1843. 549 Grecnvault . Davis. the consideration expressed in the deed being $2500 and the plaintiff had been evicted by virtue of a mortgage for $2000, which was paramount to the title which the defendant convey- ed. The defendant pleaded an agreement between himself and Sandford at the time the conveyance was executed, that Sandford should pay the mortgage a* a part of the considera- tion money for the land, and that the covenants in the deed should not be considered as extending to the mortgage. This was in effect saying that only $500 of the consideration ex- pressed in the deed had in truth been paid, and the plea was held bad. Sutherland, J., who delivered the opinion of the court, said, " if the covenant passes to the assignee with the land, it cannot be affected by the equities existing between the original parties, any more than the title to the land itself." And again, " to allow a secret agreement in opposition to the plain import of a covenant running with the land, to control and annul it in the hands of a bonajide assignee, would be a fraud upon suoh assignee which the law will not tolerate/' Although the plea was also thought bad upon other grounds, I see no reason for questioning the principle which has just been stated. Many titles have been received upon the strength of cove- nants running with the land, and whatever may be the rule as between the immediate parties to the deed, it would work the grossest injustice to allow the covenantor to go into the ques- tion of how much was actually paid for the land when the title has failed in the hands of an assignee New trial denied. VOL. IV. 82 (550 CASES IN THE SUPREME COURT. Herrick v. Borst. HERRICK vs. BORST & WARNICK. Though a creditor neglect to prosecute for his debt after being notified to do so by the surety, this will not discharge the surety if the principal was insolvent at the time. Otherwise, if the principal be solvent at the time, and tho neglect to prosecute is followed by subsequent insolvency on his part. Per COWEN, J. A surety, however, in order to avail himself of this rule at law, must bring his case strictly within it. Semble ; per COWEN, J. The cases of Pain \. Packard, (13 John. Rep. 174,) and King v. Baldwin, (17 id. 384,) commented on and disapproved. Per COWEN, J. Semble, that the principal is not to be deemed solvent at the time of the notice to prosecute, unless he be then able to pay all his debts according to the ordinary usage of trade. Per COWEN, J. Where the circuit judge charged that the term solvent, in such case, meant that the principal was able to pay all his debts from his own means, or that his property was so situated that all his debts might have been collected out of it by legal process : Held, that the charge was sufficiently favorable to the surety, and a motion for a new trial made in his behalf was therefore denied. Held further, that mere probable solvency of the principal in reference to the debt in question, at the time of giving notice to prosecute, would not bring the case within the rule. The meaning of the terms solvent and insolvent, as applied to various other cases, discussed. Per COWEN, J. ASSUMPSIT, tried at the Montgomery circuit on the 14th of May, 1840, before WILLARD, C. Judge. The action was by Herrick against Warnick and Borst, on the following note : " Port Jackson, Nov. 9th, 1835. Four months after date, for value rec'd, we or either of us promise to pay to Palmer Rowland or bearer^ eight hundred and fifty dollars, with interest. MARTIN I. BORST. GEORGE WARNICK." The defendants pleaded the general issue, and gave notice of special matter. On the trial, the defence relied on was this : The note was given for money lent by Rowland, the payee, to Borst, and Warnick signed it merely as Borst's sure- ty. In the fall of 1837, Warnick called on Rowland, who NEW-YORK, MAY, 1843. 651 Herriek t>. Bont was still the holder and owner of the note, and requested him to collect it ; adding, that he (Warnick) could not consent to stand any longer as surety upon it. Rowland made no effort to collect the note, and, on the 12th of September, 1839, he transferred it to Herriek, the plaintiff. Shortly after the trans- fer, and previous to the commencement of this suit, Borst as- signed all his property for the benefit of creditors. There was no doubt that Borst, when he made this assign- ment, was utterly insolvent. The question was, whether he had become insolvent before Warnick requested Rowland to prosecute the note. On this point much evidence was adduced by the respective parties, tending to show the amount Borst owed in 1837, the state of his property, the value of it, &c. The circuit judge charged the jury that, if Borst was insol- vent when the request to prosecute was made in 1837, then the defence had failed ; but if he was solvent at that time, and had since become insolvent, the plaintiff could not recover. The judge further charged that, " the term solvent, in law, meant that a man was able to pay all Ms debts from his own means, or that his property was in such a situation that ail hit debts might be collected out of it by legal process." The de- fendants' counsel excepted, and requested the judge to charge that, should the jury find Borst to have been in such a situation, when the notice to prosecute was given, that the note might and would, in all probability, have been collected by due course of law out of his ' property, Warnick was not liable. The judge refused so to charge, and the defendants' counsel again excepted. Verdict in favor of the plaintiff for $814,95 the balance due upon the note. The defendants now moved for a new trial on a bill of exceptions. A. C. Paige, for the defendants, insisted that the circuit judge erred in charging the jury as he did, and in refusing to charge as requested. He cited and commented on King v. Baldwin, (17 John. Rep. 384 j) Pain v. Packard, (13 id. 174 ;) The People v. Jansen, (7 id. 332 j) Ruggles v. Holden, (3 Wend. 652 CASES IN THE SUPREME COURT. Herrick c. Borst. 216 ;) Peel v. Tatlock, (1 Bos. & Pull. 419 ;) Speiglemyer v. Crawford, (6 Paige, 254, 260 ;) Fulton v. Matthews, (15 Jo^n. . 433, 4 ;) T/te Manchester Iron Man. Co. v. Sweeting, (10 . 162 ;) Huffman v. Hulbert, (13 id. 377, 8 ;) Thelusson \. Smith, (2 W 7 Aca#. 396 ;) United States v. Hooe, (3 Cranch, 73, 91 ;) Prince v. Bartlett, (8 id. 431.) D. Wright Sf jY. fli//, Jr., for the plaintiff, reviewed the cases referred to by the defendants' counsel, and cited the fol- lowing additional authorities : Shone v. Lucas, (3 Dowl. fy Ryl. 218 ;) Baley v. Schofield, (1 JWim/e # &?/. 338 ;) Warner v. Beardsley, (8 Wend. 194 ;) 2 Star A:. Ev. 777, note (1), 6/A ,/im. ed., and the cases there cited; The People v. Russell, ! ( Wend. 570 ;) Ingr. on Insolv. 9, last ed. By the Court, COWEN, J. The first exception was to the definition of the term solvency. The judge charged " that the term solvent, in law, meant that a man was able to pay all his debts from his own means, or that his property was in such a situation that all his debts might be collected out of it by legal process." He was requested to charge that, should the jury find Borst to have been in such a situation, when the notice to prosecute was given, that the note might and would, in all probability, have been collected by due course of law out of his property, the surety was not liable. The refusal so to charge is the object of the second exception. The meaning of the word solvency, is usually tested by its opposite, insolvency. Suppose a man unable to pay all his debts from his own means, or that all his debts cannot be col- lected out of those means by legal process ; is there any doubt that in the general sense of the word he is insolvent 1 Debts are paid with property -, and " in one sense," says Mr. Bell, by which he no doubt intends the primary and ordinary sense, " insolvency is the inadequacy of a man's funds to the payment of his debts." (2 BelPs Com. 162.) Notice of insolvency, by the 46 Geo. 3, ch. 135, 1, avoids transactions with a NEW-YORK, MAY, 1843. 553 Hcrrick r. Bant bankrupt, intermediate a secret act of bankruptcy and the coin mission issuing. This, says Lord Ellenborough, means tht bankrupt's general inability to answer his engagements. (Anonymous, 1 Camp. 492, note.) Other cases are satisfied with yet less, viz. " -when he is not in a condition to pay his debts in the ordinary course as persons carrying on trade usu- ally do." (Bayly v. Sckojield, 1 Maul. If Selw. 338 j Shone v. Lucas, 3 Dowl. & Ryl. 218.) The first of these definitions is most favorable for the defendant ; and I apprehend the charge of the circuit judge, viz. that a man's inability to pay his debts by his own means amounts to insolvency, will not be found materially variant. It is certainly possible that a man in such a condition, if pursued by an action, may be made ef- fectually responsible, though the event would not be very probable at least not for the whole debt. Enjoying an un- qualified exemption from imprisonment, having a right, and it being his duty, to distribute his property pro rata among his creditors, and laboring under the temptation to cover it up for the benefit of himself or his family, the ultimate collection could seldom be regarded as more than possible. The question to be decided is, whether under our rule for the protection of sureties a jury should be allowed to speculate on the event, and bar the creditor accordingly as they may guess that the suit against the principal would have been successful or not. I understand the rule to be, not that the jury can appraise the possibility, and relieve the surety in proportion to the value of the chance ; but that if the principal was solvent when the notice was given, and the neglect to sue be followed b> subsequent insolvency, the whole action is barred. The result is the same as if the creditor had given time to the principal debtor by positive contract. The latter is sufficiently severe, but it pro- ceeds on a logic peculiar to itself. The remedy of the surety is suspended. He cannot pay the debt and sue his principal ; or rather perhaps a new obligation has been fabricated to which he never assented. Neither has any application to the mere delay of the creditor. The surety may himself pay the debt, 654 CASES IN THE SUPREME COURT. Herrick v. Borst. and sue instantly, with all the chance which he complains that the creditor has neglected. In the event of a loss, his own neglect is as much the cause as that of the creditor. On the clearest solvency and greatest neglect of the creditor, therefore, the surety comes with very slight pretensions in foro consci- entia. Take the alternative in the charge, that a man is to be con- sidered as insolvent when his debts cannot be collected out of his property by legal process. This is the common case of which a man says " I can pay all my debts if my creditors will let me alone." Is that solvency 1 His creditors proba- bly will not let him alone ; or if they will, has he that general ability to pay of which we have been speaking 1 It depends on the forbearance of his creditors whether he shall go through. Such a man Mr. Bell considers as more particularly insolvent. The case he puts is, of a man who cannot proceed without some general arrangement with his creditors, some indulgence given in point of time, some consent that his payments shall be made in small portions. " A person in this state," says he, " is truly insolvent ; and it does not follow that he is not insolvent be- cause in the end his affairs may come round and he may ulti- mately have a surplus on winding them up." (2 Bellas Com. 162.) If his funds be not sufficient to meet collections by pro- cess, it follows that he cannot go on without the arrangement of which Mr. Bell speaks. This may be either negative or posi- tive, tacit or express ; the status of the debtor is effectually the same in either case. The definitions of insolvency cited to us from Cranch and Wheaton have no application. They were founded on the words or object of the statute declaring that the United States shall, as a creditor, have preference in case of its debtor's in- solvency. This was held to mean a state of legal insolvency, by which the debtor had parted with the control of his whoJe means. (Ingr. on Insolv. 4, 1st cd.) The word often varies in signification according to the several occasions of enquiring into it. Sometimes an estate is declared forfeitabie by insolvency, NEW-YORK, MAY, 1843. 655 Herrick c. Boot The object here is different from that of the rule which authorizes the vendor to stop goods t'n transitu because the vendee is insol- vent, and the definition of the word would vary accordingly. The insolvency which entitles you to discontinue an action without costs, must be technical. Yet no one would think of insisting that a man is to be deemed solvent until he comes to this, within the principle on which the surety may require a prosecution to be instituted. The question here is, whether the chance of col- lecting be equal in value to the debt. I say so, because the creditor forfeits the whole debt as the penalty of his neglect. The loss cannot be apportioned. His demand was valid as against the surety ; and I can conceive of no reason for his losing the whole, because of his neglect to prosecute another who was in fact good for little or nothing. The punishment is out of all proportion to the delinquency. The charge proposed, viz. that the note might and would, in all probability, have been collected, is narrowing the case down to a probable solvency in respect to the particular debt ; and, in terms, making the probability equal to moral certainty. If the jury had the right to graduate the value of the insol- vent's paper, and deduct or recoup the amount, there would be a show of propriety in the request. The poorest note may be considered worth something. But they had no discretion ; at any rate, the request to charge left them none. It was a re- quest to say that the loss of the probability, to be judged of by the fact that the man had, by successfully struggling, kept his head above* water, should bar the whole action. The view taken of the question in Huffman \. Hulbert, (13 Wend. 377,) the only case in this court where the kind or de- gree of insolvency on which the surety is to be discharged has been n< ticecl, is not inconsistent with the direction given at the circuit. Mr. Justice Nelson there said, the rule is founded on the assumption that the debt is clearly collectable by suit ; and upon this ground only can the rule be defended. Again, he says, there must be something more than an ability to pay at the option of the debtor. Among other reasons he mentions 656 CASES IN THE SUPREME COURT. Herrick v. Borst. the surety having a remedy of his own by payment and suit, a reason which, as I mentioned, would, in other cases, deprive the party complaining of all claim ; for in no other case that I am aware of can he demand compensation or raise a defence grounded on his own neglect. What principle such a defence should ever have found to stand upon in any court, it is diffi- cult to see. It introduces a new term into the creditor's con- tract. It came into this court without precedent, (Pain v. Packard, 13 John. 174,) was afterwards repudiated even by the court of chancery, (King v. Baldwin, 2 John. Ch. Rep. 554,) as it always has been both at law and equity in England ; but was restored on a tie in the court of errors, turned by the casting vote of a layman. (King v. Baldwin, 17 John. 384.) Platt, J. and Yates, J. took that occasion to acknowledge they had erred in Pain v. Packard, as Senator Van Vechten showed most conclusively that the whole court had done. The decision was obviously erroneous in an another respect, as was also shown by that learned senator. It overruled a previous decision of the same court in Le Guen v. Gouverneur, (1 John. Cas. 492,) on the question of res judicata ; necessarily so, unless it be conceded that the defence belongs exclusively to equity. I do not deny that the error has become inveterate ; though it has never been treated with much favor. A dictum was referred to on the argument, in The Manchester Iron Manufact. Co. v. Sweeting, (10 Wend. 162,) that the refusal to sue is tanta- mount to an agreement not to prosecute the surety. The re- mark meant, however, no more than that such a neglect as amounts to a defence is like the agreement not to sue in re- spect to being receivable under the general issue. The judge was speaking to the question whether the defence should not have been specially pleaded as it was in Pain v. Packard. On the other hand, it has often been said that the defence should not be encouraged, but rather discountenanced ; and several decisions will be found to have proceeded on this ground. ( Warner v. Beardsley, 8 Wend. 198 ; Fulton v. Matthews, 15 John. R. 433, 436 ; Ruggles v. Holden, 3 Wend. 216.) In NEW-YORK, MAY, 1848. 557 Hcrrick v. Bant Warner v. Beardsley, Chancellor Walworth says, the principal must be solvent when the request is made, and there must be delay without reasonable excuse till insolvency ensues. Even if we are bound to receive the defence at all, which he seems to doubt on reviewing the history of King v. Baldwin, he ex- pressed a decided repugnance to enlarging the operation of the rule. Were it necessary, we ought I think to say, that the principal shall not be deemed solvent so long as he comes with- in another definition which I cited, viz. if he be unable to pay his debts according to the ordinary usage of trade. (See M'CullocKs Com. Diet., " Insolvent? "Bankrupt;" 2 BeW Com. 162; 1 Maule ff Selw. 350, 353, 4, 5 ; 1 Dowl. tf Ryl. 218.) Of a man who is able thus to pay, it may in general be said that a suit, if not a pressing letter, would fetch the money ; and that a neglect till the decline of his affairs supervened would work a loss to his surety equal to the debt. It is not necessary, however, in the case before us, to go so far. The judge's charge put the case on the ordinary and more obvious meaning of the word. (John. Diet., Insolvency; Ingr. on Insolv. 4, 1st ed.) We think he was right. New trial denied. [Remainder of May term in next volume .' VOL. IV. 83 INDEX. A ABATEMENT. See PRACTICE, 24 to 26. ABSCONDING, CONCEALED AND NON-RESIDENT DEBTORS. See COMMISSION TO TAKE TESTIMONY. DEBTORS, ABSCONDING, CONCEALED AND NON-RESIDENT. LANDLORD AND TENANT, 4. ACCEPTOR. See BILLS OF EXCHANGE AND PROMIS- SORY NOTES, 7 to 12. ACKNOWLEDGMENT. See REDEMPTION or LANDS, 8. ACTION. See ASSUMPSIT. ATTACHMENT. BANKRUPT ACT, 3. BILLS OF EXCHANGE AND PROXIMO. *T NOTES, 7 to 12, 17, 20 to 22, 26 to 28. COMMON SCHOOLS, 3, 4. CONTRACT, 4, 5. CORPORATION, 3. COURT MARTIAL. COVENANT. DAMAGES. DEBTORS, ABSCONDING, CONCEALED AND NON-RESIDENT, 5, 6. [669) See DEED, 4. EJECTMENT. EXECUTORS AND ADMINISTRATORS. 1 to 3, 8. INSURANCE, 4 to 6. LIEN. MORTGAGE or CHATTELS, St, 3. MORTGAGE OF VESSEL*. OFFICE AND OFFICER. REPLEVIN. ROADS AND HIGHWAYS, 3, 4. TROVER. ADMINISTRATOR. See EXECUTORS AND ADMINISTRATORS. ADMISSION OR CONFESSION. See ADVERSE POSSESSION, 3. ADVERSE POSSESSION. 1. A court or equity will not relievo against a deed of lands on the sole ground that it was given while the complainant was in possession, claim- ing adversely to the grantor ; but will leave the former to his remedy at law. Per COWEN, J. Keneda, appellant, v. Gardner J- Gibbt, respondent*, 469 2. The statute declaring void a deed if lands held adversely to the grantor, was meant for the protection of the claimant ; and he may renounce UM benefit of it. Per COWKJJ, J. is! 660 INDEX. 3. Where the claimant, on being sued in ejectment, gives a cognovit, his subsequent possession cannot be re- garded as adverse to the plaintiff ; and hence, if the latter, intermediate the cognovit and the entry of judg. ment, convey to a third person, the conveyance will be upheld as valid, though executed while the claimant was still in possession. id See EJECTMENT, 1 to 4. AFFIDAVIT FOR COMMISSION. See PRACTICE, 27. AFFIDAVIT FOR JUDGMENT AS IN CASE OF NONSUIT. See PRACTICE, 3, 8, 9, 18, 19. AFFIDAVIT FOR REFERENCE. See PRACTICE 29, 30. AFFIDAVIT OF ATTENDANCE OF WITNESSES. -See COSTS, 13. AFFIDAVIT OF MERITS. General requisites of an affidavit of mer- its. Note, p. 64, 5. See PRACTICE, 27, 28. VENUE, 1. AFFIDAVIT OF REDEEMING CREDITOR. See REDEMPTION OF LANDS, 6 to 9. AFFIDAVIT OF SERVICE. See PRACTICE, 38 to 40. AFFIDAVIT TO CHANGE VENUE. See VENUE, 1, 5, 6, 18,19. AFFIDAVIT TO OBTAIN AT. TACHMENT. See DEBTORS, ABSCONDING, CONCEALED AND NON-RESIDENT, 7 to 11. AFFIDAVIT TO OPPOSE CHANGE OF VENUE. See VENUE, 14, 15, 18. AGENT. See ATTORNEY. BANKS AND BANKING ASSOCIATIONS, 1. DEED, 3 to 8. PRINCIPAL AND SURETY, 1. AGREEMENT. See CONTRACT. ALDERMEN. See CONSTITUTIONAL LAW, 7, 14. ALLEGATION AND PROOF. See BILL OF EXCEPTIONS, 3. CRIMINAL LAW, 3, 8. INFANCY. INSURANCE, 3. PRACTICE AT THE TRIAL, 2, 3. AMBIGUITY. See BAILMENT. BILLS OF EXCHANGE AND PROMIS- SORY NOTES, 13, 25. EVIDENCE, 1 to 7, 13 to 17, 19, 20. GUARANTY. AMENDMENT. See PRACTICED, 7, 31. REPLEVIN, 3. APPEAL BOND. See BOND, 1. 2. TNDKX APPOINTMENT TO OFFICE. See CONSTITUTIONAL LAW, 14. APPRAISEMENT. See CORPORATION, 24 to 28. ARBITRATION AND AWARD. Where a bond of submission to arbitra- tors contained a stipulation that, in case the award was not paid or ful- filled, judgment for the penalty of the bond might be forthwith entered up in the supreme court ; held, that the prevailing party was at liberty to per- fect judgment in vacation immediate- ly after the award, without a special motion to the court. Hughes v. By. water, y 551 ARREST. See WITNESS, 1 to 4. ARSON. See CRIMINAL LAW, 8. ASSESSMENT. See CORPORATION, 4 to 30. TAXES AND ASSESSMENTS. ASSETS. See EXECUTORS AND ADMINISTRATORS. WILL, 6. ASSIGNMENT OF BREACHES. See COVENANT, 2 to 9. ASSIGNOR AND ASSIGNEE. 1. In general, the assignee of a demand take* subject to every equitable defence existing against it in the hands of the assignor. Per COWEN, J. Miner v. Hoyt, 193 661 1 . Semlle. that this rale applies eren to ease* where the ssipmnnt fa abso- lute and operates a transfer of tht le- gal as well as equitable interest fa the demand. ^ 3. Otherwise, as to bilk of exchange and promissory notes, transferred to a bonafide holder. PerCown.J. id T See BANKRUPT ACT, 2. BILLS or EXCHANGE AND PROXIMO- SORT NOTES, 27. CONTRACT, 6, 7. EVIDENCE, 9 to 11. EXECUTORS AND ADMINISTRATORS, 4 to 7. INSURANCE, 3 to 6. LANDLORD AMD TENANT, 1 to 3. PAYMENT. SET-OFF. USURY, 13 to 15. ASSDMPSIT. 1. A, sold certain lands to W., who gave back a bond and mortgage, which the former assigned to one T. ; and after- ward, W. re-conveyed to A., taking from him an indemnity against Aft bond. A. then conveyed the lands to B., covenanting for quiet enjoyment; and B. conveyed them to H. by a quit- claim deed. T. thereupon {irooooitsd to a foreclosure of the mortgage in chancery, and, on the sale, H. be- came the purchaser. Held, that H. might recover against A. the purchase money paid on the mortgage sale, in an action of assumpsit as for money paid &.c. to A.'s use. Hunt don, 345 2. The decree of foreclosure, and the sale under it, amounted, in equity, to an eviction ; and the money paid by the plaintiff at the sale should be re- garded as a payment by coercion of legal process, for the use and benefit of the defendant Per WALWORTH, rhancellor. id I. Where one standing in the situation of a surety, whether he became so by actual contract or by operation of law, is compelled to pay the debt which his principal in equity and justice ought to have paid, the latter is liable for the amount in an action for money paid Ate. to his use. Per WALWORTB, chancellor. M 662 4. A verbal promise by a grantor, made contemporaneously with the execution of a deed containing a covenant for quiet enjoyment, that he would pay off an existing incumbrance upon the premises, is merged in the deed, and cannot be enforced. Per WALWORTH, chancellor. id ATTACHMENT. 1. Though an action against the sher- iff for not returning &jfi.fa. be barred by the statute of limitations, he may still be proceeded against by attach, ment in order to compel a return. The People ex rel. $c. v. Everest, late sheriff $c. 71 2. In such case, however, the court will not impose a fine for the benefit of the party instituting the proceeding, but will discharge the sheriff on his return- ing the fi. fa. and paying costs. id See ATTORNEY. DEBTORS, ABSCONDING, CONCEALED, AND NON-RESIDENT, 5 to 11. LANDLORD AND TENANT, 4. PRACTICE, 35. ATTEMPT TO COMMIT OF- FENCE. See CRIMINAL LAW, 7 to 9. ATTORNEY. 1. In order to give the right of proceed- ing summarily against an attorney to compel the payment over of money in his hands, it is not essential that he should have received the money in any suit or legal proceeding, or that he should have been employed to com- mence legal proceedings. Per BRON- SON, J. Matter of S, Dakin, an at- torney cfc., 42 2. It is enough if the money was re- ceived by the attorney in his profes- sional character; as, where the de- mand on which he received it was left with him under instructions to call for payment, or obtain better security, but without any directions to sue. Per BRONSON, J. id 3. Otherwise, if the circumstances be such as not to afford a presumption that he was entrusted in the transac- tion by reason of his professional char- acter, id 4. On an application for an order that D., an attorney, pay over moneys re- ceived by him for R., it appeared that L. who was a land-agent, took a bond and mortgage in favor of R. and sent him the bond but retained the mort- gage for the purpose of receiving pay- ments on it; that several years after- ward, L., with the assent of those for whom he acted, among whom was R., transferred his land agencies to D. who attended chiefly to that kind of business ; that D. never had the bond in his possession, nor had he instituted proceedings to collect the mortgage, or been instructed to do so ; but he re- ceived several sums of money on the mortgage and refused to pay them over, though demanded. Held, not a case for the summary interference of the court, and the motion was therefore denied. id 5. Wnere an attorney of the superior court of the city of New- York, who was also an attorney of this court, was retained to defend a suit pending in the former, and, in consequence of such retainer, received certain mon. eys belonging to his client ; held, that this court had no power to grant a rule requiring the attorney to pay over the money, but that the matter be- longed exclusively to the superior court. Ex parte Kctctium, public ad- ministrator of the city of New-York, 564 See CORPORATION, 1. COSTS, 2, 8, 10, 11, 16. DEED, 3 to 8. PRACTICE, 21), 30. WITNESS, 2. AUDITING TOWN AND COUN TY CHARGES. See SUPERINTENDENTS OF THE POOR. AWARD. See ARBITRATION AND AWARD. INDEX. BAIL. See BOND. DEBTORS, ABSCONDING, CONCEALED, AND NON-REBJDENT, 1 tO 4. BAILMENT. 1. A written instrument acknowledging the receipt of a quantity of wheat " in store," imports a bailment and not a tale. Goodyear v. Ogden wEN, J. id 12. But this liability must be evidenced by a written agreement ; a parol prom- ise would he void by the statute of frauds. Semble ; per COWEN, J. id 13. In general, where a person puts his name on negotiable paper, he will be deemed to have bound himself only according to the import of what he writes, and cannot be subjected to a different obligation by parol evidence. Per COWEN, J. id 14. A notarial certificate stating that notice of protest was served &.c. by putting the same in the poet office, di- rected &.C., is a sufficient compliance with the statute, (2 R. S 212, 46, 2d ed.) though it do not expressly state by whom the service was made. Ketchum v. Barber and others, 224 15. Since the act of 1835, (Seas. L. of '35, p. 152,) the certificate need not specify the reputed place of residence of the party notified, nor the post of. ficc nearest thereto. id 16. A statement of a particular fund in a draft or bill of exchange, if inserted merely as a direction to the drawee how to reimburse himself, will not vitiate it. KelUy v. The Mayor Ac. of the city of Brooklyn, 263 17. Accordingly, in an action against the city of Brooklyn by an endorsee of an instrument, signed by the mayor and countersigned by the clerk, in these words : " To the treasurer of the city of Brooklyn, at the Long Island Bank Pay A. L. or order, fif- teen hundred dollars for award No. 7, and charge to Bedford road assess- ment" &c. : Held that, not withstand, ing the latter clause, the instrument was a negotiable bill of exchange, id 18. A municipal corporation may MBUC negotiable paper for a debt contracted in the course of its proper business ; and no provision in its charter or else- where, merely directing a certain form, in affirmative words, should be construed as taking away this power. Per COWEX, J. id 19. The name rule applies to all corpo- rations, whether public or private. Per COWEX, ]. id 20. Where the charter of a municipal corporation provided that all moneys should be drawn from the treasury in pursuance of an order of the common council, signed by the mayor &.c. : Held, that a negotiable draft on the I VOL. IV. 84 INDEX 6 05 VBuuiy pico in toe i ed, bat famed on the basis of a note or memorandum in the corpora- tion minutes, without a formal order having been entered, was a sufficient compliance with the charter; it ap- pearing that this was the accustomed mode of drawing moneys. id 21. The corporation win not be dis- charged from bability on such draft by the omission of the holder to make presentment to the treasurer and give notice, provided it be shown that it neither has suffered nor can suffer from the omnaion. id 22. Where a note was drawn by E. and A., payable to W. or bearer, and, pre- vious to the delivery to the latter, P. guarantied the payment of it by an endorsement thereon, thus : " For value received I guaranty the pay. ment of the within note, and waive notice of non-payment :'* Held, in an action brought by a subsequent holder against P. and the makers jointly, that the plaintiff was entitled to recov- er ; he having declared upon the com- mon money counts and served a copy of the note and guaranty with his dec- laration. Prossrr, imp'leaded 4/c. v. Luqueer and other t, ; J ) 23. Such a guaranty constitutes the per. son making it an endorser within the statute (Seat. L. of '32, p. 489) regu- lating suits on bills of exchange and promissory notes. Per WAJ.WOKTU, chancellor. id 24. And rmll(, independently of the statute, the guarantor may be treated as a joint and teveral maker of the note id 25. Parol evidence prove that a party to a bill or : e. g. an endorser or guarantor a cd to contract a different obligation from that imported by his written < gagcment Per WALWORTH, 26. In an action on a promiwory note brought by one not entitled to be treated as a bona jide holder, the ma- ker may defend on the ground that the note was given in consideration of land sold for the purpose of de- frauding creditors; and this, thoofh 666 INDEX. he was himself a party to the fraud. Nellis v. Clark, 424 27. B. conveyed certain lands to C. for the purpose of defrauding creditors, and took back a bond and mortgage for a part of the purchase money. The bond and mortgage were after- wards cancelled in consideration of C.'s giving his note to one W. for a house and lot which the latter had contracted to sell to B. Before the time arrived for executing this con- tract, B. obtained a discharge under the insolvent act, whereupon his as- signee demanded the note of W. who delivered it up to him ; and, by a subsequent arrangement between B. and W., the contract between them was also given up to be can- celled. Held, in an action by one deriving title to the note under the assignee, with full knowledge of the circumstances under which it had been given, that C. was not liable, id 28. Where there is enough on the face of a negotiable note or bill of ex- change to create a suspicion that it was issued contrary to law, and to put the party who takes it upon enquiry, he is not entitled to be considered a bona fide holder. Semble. Safford v. Wyckoff, president be re. garded a* authoritative expo* tions of the law, and binding r< r<:ch upon other court* hi similar cases, discms. ed and considered. Per BKAPIXH, president, and Horcnn, ttnator. Hanfordv.Arteker, 271 676 INDEX. COURT MARTIAL. . fine imposed upon a commissioned officer by a, regimental or battalion court iiu:rlinl cannot be collected by an action of debt in the name of the people, but only in the manner point- ed out by 1 it. S. 315, 316, 13 et acq. i. c. under a warrant issued by tbc president of the corrt. The Peo- ple v. Hazard, 207 COVENANT. 1. A covenant was entered into between S. a'nd T. of the one part and B. of the other, wherein S., who owned certain lands, agreed to sell them to the best advantage he could obtain for them in cash between the date of the covenant and the first of October then next, and pay the proceeds to TB. within the lime mentioned, to apply on a mart- gage executed to him by S. ; after which followed this clause "Now therefore we agree that the said mo- neys so received as aforesaid shall be paid to said B. &c., and that said S. shall use all necessary care and dili- gence in the sale of said lots" HELD, an undertaking by S. and T. that, among other things, S. should use all necessary care and diligence to make sales within the time specified, and that he should use the like care and diligence to sell to the best advantage or for the best price which could be obtained within the same period. Brown v. Stebbins J- Thurber, 154 2. Where, in an action on such cove- nant, one of the breaches assigned was, that "the defendants or either of them did not pay the proceeds of the sale to the plaintiff" without allegin] that any sale had been made; hel bad on special demurrer. id 3. So of a breach that "S. did not sett and dispose of the lands to the best ad. vantage or for the most he could ob- tain," without showing whether the plaintiff meant to go for improperly omitting to sell at all, or for selling at too low a price. id 4. Otherwise, of a breach following and negating the words of the covenant ; *>. g. that S. did not use all necessary ct*re and diligence in the sale of the lands. id 5. As a general rule, it is sufficient, in assigning a breach, to follow and neg- ative the words of the covenant, id 6. An exception to the rule obtains where this mode of pleading docs not necessarily amount to a breach. Per BRONSON, J. id 7. When the pleader undertakes to as- sign a breach coming within the sub- stance, effect or intent of the cove- nant, he is held to a more strict rule than when he follows cither negative- ly or affirmatively, as the case may be, the words of the contract. Per BRON- SON, J. id 8. Where a declaration in covenant as- signs several distinct breaches, some of which are good, but others bad, and the defendant interposes a demur- rer going to the whole declaration, the plaintiff will be entitled to judgment on the demurrer. id 9. The defendant, under such circum- stances, should plead to the breaches which are well assigned, and demur to the others. id 10. A covenant for quiet enjoyment runs with the land, and passes by a quit- claim deed to a purchaser from the grantee. Per WALWORTH, chancellor. Hunt v. Amidon, 345 11. In order to maintain an action on a a covenant of warranty or for p,uiet enjoyment in a deed of lands, a law- fnl eviction in some form must be shown. Greenvault v. Davis, 643 12. The eviction, however, need not be by process of law ; but it is enough that, on a valid claim being made by a third person under title paramount, the plaintiff voluntarily yielded up the possession, id.; but see per WAL- WORTH, chancellor, contra, in Hunt v. Amidon, 345. 13. Where the plaintiff thus surrenders possession without a legal contest, he assumes the burden of proving that the person entering had title para- mount. Greeavault v. Davis, 643 14. As a general rule, the cons'deration clause in a deed of lands is open to explanation by parol proof. id 15. But in an action on a covenant of warranty, brought by one to whom the grantee in tho deed had con- voyed ; held, that the grantor wan not at liberty to ho\v the consideration paid for the land to be less than the sum expressed in the dn >i. id 16. Otherwise, however, had the action been between t!ic immediate parties to the deed. Sembie, per NELSON, Ch. J., and COWE.N, J. ; BRONSON, J. contra. id See ASSCMPSIT, 1 , 4. DEED, 3 to 8. EVIDENCE, 8 to 11. CRIMINAL LAW. 1. A representation, though false, is not within the statute against obtaining property otc. by false pretences, unless calculated to mislead persons of ordi. nary prudence and caution. The People \. Williams, 9 2. Accordingly, where an indictment charged the defendant with obtaining V.'s signature to a deed of land?, by falsely pretending that G., who held a bond and mortgage apun-t V., was about to sue him on the bond, fore- close the mortgage &c., and that G. had so told the defendant : Held, that the pretences set forth were not suffi- cient to warrant a conviction. id 3. To sustain a criminal prosecution for obtaining the signature of one to a mortgage by false pretences, the mere fact of the instrument having been signed is not enough ; a delivery must also be shown. Per NELSON, Ch. J. Fenton v. The People, 126 4. If the indictment, in such case, pur- sue the words of the statute by charg- ing that the defendant unlawfully &C. obtained the signature, it will be suf- ficient, though it do not aver a dp. livery in terms, M 5. The indictment need not describe the premises covered by the mortgage, id 6. The case of The People v. Wright, (9 Wend. 193,) commented on and explained. *& INDEX. 677 7. In an indictment outer 9 A. 5. 696, $3, for attemptmf to commit an of. fcaoe, the particular manner to wUeh the attempt was made immaterial, and need not be alleged. Tin 8. On the trial of an indictment i the above statute for an commit anon, it was shown thai the prisoner solicited one K. to eat fir* to a barn, and gave him uiatehab far the purpose ; held, sufficient to warrant a conviction, though the prisoner did not mean to be prevent at the cummia. ion of the offence, and K. never in- tended to conn: id 9. Semble, that merely roliciting one to commit a felony, without any other act being doue, is sufficient to war. rant a conviction under the statute, id See INJUNCTION, 5. NoN-IuraisoNMENT ACT, 3. CURRENCY. Ste BANKS AND BANKING ASSOCIATION*. REDEMFTION or LAND*, 10, II. CUSTOM. See BAILMENT. EVIDENCE, I to 7. D DAMAGES. The proper measure of damage* for the broach of a warranty of soundness on the sale of a homo, i the difference between the value of the bone at the time of the sale, considehnr him as sound, and his value with the defect complained ot Cerjr r. Gnus**, 2. Accordingly, where the - reiected evidence of what would he bin the real Tatoe of the hf" at the time of the jury that the proper^ ae damage* was the eifttenee 678 INDEX. the price paid for him, and his value with the defect ; he Id erroneous, and the judgment was therefore reversed id 3. The price paid, however, is, in such case, strong 1 evidence of what the horse would have been woilh if sound, and should always control unless it be clear that the actual value was either greater or less. Per COWEN, J. id 4. The cape of Caswell v. Coare, (1 Taunt. 566,) cited and explained, id 5. If a horse be sold with warranty of soundness, though he turn out to have been unsound at the time, the vendee has no right to return him and recover back the price paid, unless there be either an agreement to that effect or fraud on the part of the vendor. Per COWEN, J. id See BOND, 1, 2. COMMON SCHOOLS, 5. COVENANT, 14 to 16. EVIDENCE, 9, 10. USURY, 15. DEBTOR AND CRED[TOR. See BANKRUPT ACT. BILLS OF EXCHANGE AND PROMIS- SORY NOTES, 26, 27. DEBTORS, ABSCONDING, CONCEALED AND NON-RESIDENT. FRAUDULENT SALE OF CHATTELS. NON-IMPRISONMENT ACT. PRINCIPAL AND SURETY, 6 to 13. DEBTORS, ABSCONDING, CON- CEALED AND NON-RESIDENT. 1. Where one against whom process has been instituted as an absconding or concealed debtor, brings a certiorari pursuant to 2 R. 8. 620, 6T 1 , and accompanies the same by a bond in the form prescribed by 74, he must, within ten days after the filing of the certiorari, give notice of the names, additions &c. of the sureties in the bond ; and the creditors have 'then twenty days witlu'n which to except to the sureties. Matter of Faulkner, an absconding or concealed debtor, 30 2. If euch notice be not given, or if the sureties fail to justify en being ezccpt- cd to and new sureties be not substi- tuted, the certiorari will cease to ope- rate as a stay, and the creditors may proceed to the appointment of trustees as if no certiorari had been brought. id 3. An ex parle justification by the sure- ties at the time of giving the bond, cannot be made to answer as a sub- stitute for the above steps on the part of the debtor. Semble. id 4. If the debtor, after filing the bond, omit the steps necessary to perfect it, the certiorari ceases to operate as a etay of proceedings without obtaining a svpersedeas. ia, 5. The trustees of the estate of an ab. sconding, concealed or non-resident debtor, may maintain an action against the sheriff for suffering the goods attached by him to be lost through his negligence. Acker, sher- iff $c. v. Witherell and others, 112 6. Where, in such action, the declara- tion commenced by describing the plaintiffs as " trustees for all creditors of the estate, real and personal of M., iate of &c., an absconding or conceal- ed debtor," and then set forth the pro- ceedings against M. down to and in- cluding the seizure of the property by the sheriff in virtue of the warrant, but contained no direct averment that the plaintiffs had been appointed trus- tees in consequence of such proceed- ings ; held, nevertheless, that the dec- laration was sufficient in this respect on error, no special demurrer having been interposed. ta 7. The appointment of trustees in a pro- ceeding against an absconding or concealed debtor, under 2 R. S. p. 2 et seq., does not preclude him from raising the question whether the affi- davits upon which the attachment is- . sued were sufficient to give the officer jurisdiction. Matter of Faulkner, an absconding or concealed debtor, 598 8. Not will the debtor be precluded even though he have previously applied for and had a hearing in the common pleas, pursuant to 2 R. S. p. 9, 43. id 9. The case of Hubbell v. Ames (15 INDEX. Wend, 372) explained, and the re- porter's abstract of it corrected. id 10. In order to confer jurisdiction, the affidavits of 'the two witnesses requir. ed by 2 R. 8. p. 3, $ 5 must state the facts and circumstances to establish the grounds of the application ; mere information and belief will not an. wcr. Per BRO.NSO.N, J. id 11. If, however, facts and circumstances be stated tending to establish the grounds of the application and fairly calling on the officer for an exercise of his judgment upon the weight of the evidence, though he err in his estimate of it, the proceeding will not be void for lack of jurisdiction. id See COMMISSION TO TAKE TESTIMONY. LANDLORD AND TENANT, 4. DECLARATION. Ste COVENANT, 2 to 9. DEBTORS, ABSCONDING, CONCEALED AND NON.RESIDENT, 6. EXECUTORS AND ADMINISTRATORS^. OFFICE AND OFFICER, 8, 9. PLEADING. REPLEVIN, 2. ROADS AND HIGHWAYS, 3, 4. DECREE IN BANKRUPTCY. See BANKRUPT ACT. DECREE IN CHANCERY. See ASSOMPSIT, 1 , 2. DEED, 1, 2. EVIDENCE, 8 to 11. JUDGMENTS AND EXECUTIONS, 12. MORTGAGE OF LANDS. PRINCIPAL AND SURETY. 1 to 5. DEED. 1. A deed executed by a master under a decree of foreclosure in chancery, passes the title to the purchaser at the moment of delivery, though the report of sale be not made and confirmed on- til sometime afterward. Fuller v. Van Gee sen, 171 2. Even if it wwe othfltwiw, UM i quent onnnrmatinn of the sale would relate back to the delivery of & deed, and thus give it effect from thai tim* as against an intruder into the premi- se*. Per COWKN, J. i J 3. A sealed instrument, when by one acting as attorney, most be ex- ecuted in the name of the principal, and purport to be scaled with his seal. Tuirnttnd and other* v. Hubbard mud Orcutt, 351 4. Accordingly, where a covenant for the sale and purchase of land* was subscribed only with the names of B., H. and O., and commenced thus: " Articles, &c. made &c. between T. &c. by B. their attorney, of the first part, and H. and O. of the second part, witnesseth ;" and the concluding clause was thus : " In witness where, of the said B., at attorney of the par. ties of the first part, and the said par- ties of the second part, have hereunto set their hands and seals," Sue. : Held, that the covenant did not purport to have been executed by T. Ate., and that they could not maintain an ac- tion upon it id 5. The case of Magill T. Hintdale, (6 Conn. Rep. 464,) commented OB and disapproved. Per WALWORTH, chart- cellar. id 6. Less strictness is required where the instrument is not under seal ; it being sufficient, in such case, if the intent to bind the principal appear in any part of the instrument. Per WALWORTH. chancellor. id 7. No particular form of words is i sary to be observed by the attorney, even in executing a sealed instrument, provided the words used import the requisite facts. Per WALWORTH, ckan. re/W. id 8. Though a deed be executed by an t. torney for several principal*, it is not necessary to affix a separate seal for each, provided it appear that the veil affixed was intended to be adopted H the seal of all. SembU; per WAL- WORTH, ehametlltr. id See ADVKRRB P AMUMnrr. INDEX. See CORPORATION, 7 to 30. COVENANT. EVIDENCE, 8 to 11, 19, 20. REDEMPTION OF LANDS. ICivERS AND CREEKS. DEFAULT. Sec PRACTICE, 18 to 22. DEFEASANCE. Ste EVIDENCE, 19 20 JUDGMENTS AND EXECUTIONS, 10. .DELEGATION OF POWER, Sf( XtiTARV. DELIVERY OF CHATTELS. See FRAUDULENT SALE OF CHATTELS. DEMAND OF PAYMENT. See BILLS OF EXCHANGE AND PROMISSO- RY NOTES, 5, 21. EVIDENCE, 12, 13. DEMURRER. See COVENANT, 2 to 4, 8, 9. PRACTICE, 21, 22. DEPOSITION. See CHANCERY. WITNESS, 5, 6. + DESCENT. See WILL. DEVISE. Sec EXECUTORS AND ADMINISTRATORS, 4 WILL. DISCHARGE. See BANKRUPT ACT. NON-IMPRISONMENT ACT. DISCONTINUANCE. See BANKRUPT ACT, 3. COSTS, 4, 5. PRACTICE, 24, to 26. DISCOVERY. See CHANCERY, 1. CORPORATION, 3. DISCRETION. See BILL OF EXCEPTIONS. MANDAMUS. NEW TRIAL, 5, 7. PRACTICE AT THE TRIAL, 1, 4 to 7. USURY, 19. DISTRESS FOR RENT. See LANDLORD AND TENANT, 1 to 4 DOCKET OF JUDGMENT See JUDGMENTS AND EXECUTIONS, 12, 17 to 19. DOOR. See JUDGMENTS AND EXECUTIONS, 4 to 9 DOUBLE COSTS. See COSTS, 9. DRAFT. See BANKS AND BANKING ASSOCIATIONS. BILLS OF EXCHANGE AND PROMIS- SORY NOTES. CONTRACT. 2, 3. USURY. 3. INDEX. 681 DRAWER AND DRAWEE. See BILLS OF EXCHANGE AND PROMIS- SORT NOTES, 7 to 12, 17 to 21, 29. " DUE PROCESS OF LAW." See CONSTITUTIONAL LAW, 4. DWELLING-HOUSE. See JUDGMENTS AND EXECUTIONS, 4 to 9, E EJECTMENT. 1 . In ejectment, if possession by the de- fendant at the time of the commence- ment of the suit be shown, the pre- sumption will be, in the absence of evidence to the contrary, that lie en- tered and held in hostility to the plaintiff, and not in subordination to his right Sharp and others v. In graham, 116 2. Accordingly, in order to put the plaintiff to proof of an ouster, in such case, the defendant must show affirm- atively that either he, or one under whom he claims, is a joint-tenant or tenant in common with the plaintiff. id 3. The rule is tho same, though the plaintiff claim only an undivided in- terest in the premises in question, id 4. Where the plaintiff showed title to an undivided interest in a lot of land, and it appeared that the defendant entered into possession under one C., who for several years had exercised acts of ownership over the lot by leas- ing the same, but no evidence was given of any privity of estate or title between C. and the plaintiff; htld, that the latter was entitled to recover, without proving an ouster id 5. In ejectment, mere evidence of a former recovery against the plaintiff's tenant, and of" the defendant's entry under it shortly previous to the com- mencement of the present action, will VOL. IV. not rebut the presumption of title ark. ing from a prior uninterrupted pos- session by the plaintiff, unless it ap- pear that he had knowledge of the proceedings against the tenant and an opportunity to defend. Semblc. Wheeler v. Ryersa and others, 466 6. Where the defendant insisted at the trial that such former recovery was conclusive so as absolutely to bar the plaintiff, and the circuit judge ruled the contrary ; held that, under a gen. eral exception to the decision, the de- fendant could not raise the question whether the evidence was sufficient to overcome the presumption arisir 7. The case of Whitney v. Wright, (15 Wind. 171,) commented on, and the reporter's abstract of it corrected. Per VYALWORTH, chancellor. id See ADVERSE POSSESSION. CORPORATION, 9 to 14, 17 to 19. MORTGAGE OF LANDS, 2 to 5. ENDORSER AND ENDORSEE. See BANKS AND BANKING ASSOCIATIONS, 1,2. BILLS OF EXCHANGE AND PROMIS- SORY NOTES, 5 to 9, 13 to 15, 17, 20 to 25, 27, 28, 30. PARTNERSHIP. ENTITLING OF PAPERS. See PmAcnci, 1, 2, 40. EQUITABLE CONVERSION. See WILL, 3 to 8. EQUITY. See ADVERSE POSSESSION. ASSUMPSIT, 1 , 2. CORPORATION, 30. DEED, 1, 2. EVIDENCE, 8 to 11. INJUNCTION. LIMITATIONS, STATUTE op. MORTGAGE or LANDS. PAYMENT. 86 682 INDEX. See PRINCIPAL AND SURETY, 1 to 5. USURY, 13, 14. WILL, 3 to 8. ERROR. 1. In general, objections not made at the trial cannot be urged on a writ of error. Per WALWORTH, chancellor, and HOPKINS, senator. Hartford v. Artcher, 271 2. Quere, if this be so as to objections which could not have been obviated at the trial, had they been raised. Per WALWORTH, chancellor, id 3. A judgment will not be reversed on error, merely because the judge who pronounced it gave an erroneous or insufficient reason therefor. Per WAL- WORTH, chancellor. id See COSTS, 9, 12. DEBTORS, ABSCONDING, CONCEALED AND NON-RESIDENT, 1 to 4. FRAUDULENT SALE OF CHATTELS, 1 to 4. PRACTICE, 4, 5. ESTOPPEL BY DEED. See COVENANT, 14 to 16. ESTOPPEL BY JUDICIAL PRO- CEEDINGS. See DEBTORS, ABSCONDING, CONCEALED AND NON-RESIDENT, 11. EJECTMENT, 5 to 7. EVIDENCE, 8 to 11. MORTGAGE OF LANDS, 1 to 3. NON-IMPRISONMENT A.CT, 4. EVICTION. See ASSUMPSIT, 1, 2. COVENANT, 11 to 13. EVIDENCE. 1. A written instrument acknowledging the receipt of a quantity of wheat " in store," imports a bailment and not a tale. Goodyear v. Ogden Pearl, 104 2. Such instrument is in the nature of a contract, and therefore not open to contradiction in the sense of the rule applicable to receipts proper ; though its import may be explained by parol evidence of the usage among dealers in wheat. Per COWEN, J. id 3. Where parol evidence is given of a usage to treat such instruments as im- porting a sale, it is for the jury to say whether the usage be so universal and well known as to raise the presump- tion that it entered into and formed a part of the contract in question. id 4. A memorandum acknowledging the receipt of a quantity of grain " on freight," imports a bailment and not a sale. Dawson v. Kittle, 107 5. But the memorandum may be shown to mean a sale by evidence of usage among dealers in grain. Per NEL- SON, Ch. J. id 6. Such evidence, however, must be so full and explicit as to leave no doubt of the existence, extent and meaning of the usage, and that the parties con- tracted in reference to it. Per NEL- SON, Ch. J. id 7. In general, where evidence of usage is given to control the construction of a written instrument, the jury are to determine its effect. id 8. If a person covenant for the results or consequences of a suit between others, the decree of judgment in such suit will be evidence against him, though he was not a party. Rapelye $ Pur- dy v. Prince $ Prince, 119 9. Accordingly, where one assigned a mortgage, covenanting that it should produce and yield a given sum over and above the costs of foreclosing, and that if it did not, he would pay the de- ficiency : held, that the assignee hav- ing subsequently foreclosed the mort- gage in chancery and sold under the decree, without making the assignor a part}', these proceedings were evidence against the latter, in an action on the covenant, to show the amount of the deficiency. id 10. Held further, that the assignor was estopped by the decree from question. INDEX. 683 ing the amount found doe upon the mortgage, no fraud being alleged, id 11. The case of Douglata v. Rowland, (24 Wend. 35,) commented on and explained. *^ 12. The memorandum of a deceased teller of a bank made in the usual course of his employment, is compe- tent evidence in proving a demand by him on the maker of a note, and notice to the endorsers; and this, whether he attended to the business on the retainer of a notary, or as part of his duty to the bank. Sheldon, ex*r $c. v. Benham, imp'd them in their representative capacity, where the fund sought to be recovered will be assets ; and counts on such notes may, it seewt-f, be joined with counts on promises to the testator or intestate. Per NELSON, Ch. J. id See WILL, 6, 8. EXHIBIT. See CHANCERY, 2 to 7. CSS EXPERT. Bee EVIDENCE, 13 to 16. FALSE PRETENCES. See CRIMINAL LAW, 1 to 6. FEES. See Com. FIERI FACIAS. See ATTACHMENT. JUDGMENTS AND EXECUTIONS, 1 to 9, 13 to 15, 17 to ID. LANDLORD AND TENANT, 5, 6. MORTGAGE OF CHATTELS. FINE. See COURT MARTIAL. FORECLOSURE. See ASSUMPSIT, 1, 2. DEED, 1, "2. EVIDENCE, 8 to 11. MORTGAGE OF LANDS. FOREIGN CORPORATION. See CORPORATION, I to 3. FORMER RECOVERY. See EJECTMENT, 5 to 7. FOURTH OF JULY. See BILLS or EXCHANGE AND PROMTS- SOB v NOTES, 5. FRAUD. See CRIMINAL LAW. FRAUDCDENT SALE or Car LIEN, 2, 3. FRAUDS, STATUTE OF. 1 . The statute of frauds relating to prom, ises to answer for the dibt, default or miscarriage of another, (2 R. > \3J, $ 2, tubd. 2,) applies only . promisor stands in the relation of a surety for some third person who the principal debtor, Per B*OM>O\. J. Joknton v. Gilbert, 178 2. Accordingly, in on action on a writ, ten promise to guaranty the payment of a cliatu-1 note, it appearing that the dt-lVndant transferred the uot to the- j/amtiff and made I he guaranty in considered. .:i c.i motiovs piA by the plaintiff tor the diKiniiii.t at hi* request ; held, tha; the protu*M was valid, though it expressed ao coosid- oration. ( J See BILLS or EXCHANGE AND PROMIS- EORY NOTES I'.'. GUARANTY. FRAUDULENT CONVEYANCE OF LANDd. Sfe DILLS or Excir.iM.r AND Ptotto- SOKY NOTES, M, '21. FRAUDULENT >ALE OF CHAT- Tl I 1. The qnertion bci-i ^ whrthrr thr plain, tiff's title to goods in (Up he claiiiu >l ! . .:!; of an absolnto Fair, \wis I. vendor . .v. J3G, 5, it a; ;.< ariM^ t'i:it no chango of posBCtniuii !r judge told the jun .t' any good reason had I ten tHotcn. they COUtlt t' ;,]'!: (Oft*. tiou had it. \vljcrcuj)on a favor (> ft . Uwt tlic t-iiargu wai irroiituus an lii.u>ng mi Li- true posal of enquiry, vi/. tlo UIM fed** ol UM transaction ; and ill.*, thon^h UM dr. 686 cuit judge, in a previous part of his charge, had read the statute to the jury, telling them that the question of fraudulent intent was one of fact for their decision. Hanford v. Artcher, 271 2. WAIWORTH, chancellor, dissented, holding that the party claiming under an absolute sale must, in addition to other proof of the bona fides of the transaction, furnish a satisfactory ex- cuse to the court and jury for the want of a change of possession ; and that the charge in this respect was therefore proper. id 3. The circuit judge should have told the jury to enquire whether it had been shown on the part of the plain- tiff', that the sale was made in good faith, and without any intent to de- fraud creditors or subsequent pur- chasers. Per BRADISH, president, id 4. WAI.WORTH, chancellor, was of opin- ion that, upon the whole charge ta- ken together, the question of fraud or no fraud was fairly submitted to the jury. id 5. The statute has not undertaken to define what shall be sufficient to prove good faith or an absence of intent to defraud ; but has left this to be de- termined by the jury, under the di- rection of the court, from such com- petent and relevant testimony as is presented to them according to the ordinary and established rules of evi- dence. Per BRADISH, president, id 6. The power of the court to decide as to the competency and relevancy of the evidence offered in such case, has not been impaired by the statute. Per BRADISH, president. id 7. The court, however, must decide in view of the proper issue ; i. e. with ref- erence to the tendency of the evidence to show good faith and an absence of fraudulent intent, and not with refer- ence to the mere question whether de- livery was practicable. Per HOPKINS, senator; BRADISH, president, concur- ring, id 8. Proof of a valuable considerationw an honest debt is essential to show good faith; and if such proof be not given, the court may refuse to put the case to the jury, or may set aside the verdict where one has been given affirming the validity of the transaction. Per HOPKINS, senator. id 9. The proof of consideration must go beyond a mere paper acknowledgment of it, such as would be binding between the parties. Per HOPKINS, senator, id 10. Over and above evidence of consid- eration or an honest debt, the statute contemplates something further ; i. e. proof of circumstances showing ab- sence of an intent to defraud credit- ors &c. Per HOPKINS, senator. id 11. For this purpose, facts tending to characterize the transaction as having occurred in the ordinary course of fair dealing, are relevant ; e. g. circum- stances of publicity accompanying and following it, &c. Per HOPKINS, sen- ator, id 12. So, as to facts tending to show that the party leaving the possession un- changed was actuated by motives of humanity ; e. g. a laudable desire to contribute to the comfortable support of a near relative or friend, or to aid him in a lawful business &c. Per HOPKINS, senator ; WALWORTH, chan- cellor, contra. id 13. Proof that a sale or mortgage of chattels is founded on a sufficient con- sideration, will not of itself rebut the presumption of fraud arising from the want of a change of possession ; and unless more be proved, the judge is not required to submit the cause to the ju- ry. Per WALWORTH, chancellor, id 14. Evidence which will be sufficient to show good faith and an absence of in- tent to defraud, will also conclusively rebut the presumption of fraud which the statute raises from non-delivery of possession ; and therefore no addition- al evidence is necessary to account for such non-delivery. Per BRADISH, president, and HOPKINS, senator. id 15. A full and free power of disposal of chattels is, in general, an essential and inherent incident of ownership; and a vendee or assignee has the same right to leave them in the possession of the vendor, provided there be no want INDEX. 687 of good faith and no intent to defraud creditors &c., that he would have to take them into his own possession or to leave them w'th a third person. Per BHADISII, president. id 1 6. History of the law relating to con- veyances of chattels made to defraud creditors &c. ; and various English and American cases on that subject commented on. Per BRADISH, presi- dent, id 17. The case of Smith 4- Hot v. Arker, (23 Wend. 653,) reviewed, explained and approved. Per BRADISH, presi. dent, and HOPKINS, senator. id 18. The same case reviewed and fur. ther explained by WALWORTH, chan- cellor, and his reasons for the vote there given by him, stated. id 19. The case of Cole $ Thwrman v. White, (26 Wend. 511,) reviewed and commented on. Per WALWORTH, chancellor. id 20. The words " actual Ate. change of possession" in 2 R. S. 136, $ 5, are to be interpreted literally, and will not be satisfied by a mere legal or con- structive delivery. Per HOPKINS, sen- ator. id 21. Accordingly, though the vendor be suffered to remain in possession in good faith, as clerk of the vendee, this will not relieve the latter from the onus of proving good faith iu other respects. Per HOPKINS, senator. id 22. For the purpose of rebutting the pro- sumption which the statute raises from the want of a change of possession, it is not proper to a*k the vendor, in gen- eral terms, whether, so far as he is concerned, there was any actual fraud in the whole transaction. Per Hor- KINS, senator, and WALWORTH, chan- cellor, id FRIVOLOUS DEMURRER. See PRACTICE, 21, 22 G GENERAL BANK-LAW. See BANKS AND BANKING ASSOCIATIONS. TAXES AND ASSESSMENTS. GENESEE RIVER. Set Rivcu AMD CREEXB. GRANTOR AND GRANTEE. See ADVERSE POSSESSION. AMOMTSIT. GUARANTY. 1. A written guaranty is to be construed by the same rules and may be ex- plained by the sauie evidence a* other contracts. Per COWCN, J. Walratk v. Thompson, 200 i. Where the guaranty was in the form of a letter from the defendant to tlio plaintiff, thus : " As there was no time set for the payment of yoirr ac- count, and Mr. J. thought it would be an accommodation to him to have you wait until &c. ; if that will answer your purpose, I will be surety for the payment" &c. : Held, that the words your account were ambiguous, and that parol evidence was admissible for the purpose of applying them to an account of J. not existing when the letter was written, but contracted af- terwards on the faith of it. id 3. Had the guaranty related to a prece- dent account of J. with the plaintiff. it would have been within the statute of frauds, and void for not expressing a consideration. Per COWCN, J. id 4. Independently of oral the words of a guaranty ti | . strucd most strongly against the guar- antor. Per COWCN, J. id See BILLS or EXCHANGE AND PROMISSO- RY NOTES, 22 to 25. FRAUDS, STATUTE or. USVRT, 5 to 16. H HEIRS AND DEVISEES. Ste Wot. INDEX. HIGHWAYS. See RIVERS AND CREEKS, 5. ROADS AND HIGHWAYS. HOUSE. See JUDGMENTS AND EXECUTIONS, 4 to 9. IMPRISONMENT. See NON-IMPRISONMENT ACT. 'INCOME" AND "PROFITS.' jSee TAXES AND ASSESSMENTS. INDEMNITY. jSee ASSUMPSIT. INDICTMENT. See CRIMINAL LAW, 2 to 9. INFANCY. Where the plaintiff replies to a plea of infancy that the defendant ratified the several promises &c. after attaining to the age of 21 years, and the defendant rejoins, taking issue upon the allega- tion, the plaintiff is prima facie enti- tled to recover upon proof of a new promise, without showing that the de- fendant was of age at the time of making it. Bigelow and others v. Grannis, -206 INJUNCTION. 1. In general, courts of law will not lend their aid in enforcing injunctions from chancery ; nor will they ordinarily take any notice of such writs, in the course of proceedings at law. Per NELSON, Ch. J. Cowing, Kelley Marcy v. 266 2. This court will not interfere by manda- mus to compel a ministerial officer to disobey an injunction, unles it appear to be plainly void for want of jurisdic- tion. Ex parte Fleming and another, 581 3. Accordingly, where a judge, acting under the non-imprisonment act, (Sess. Laws of '31, p. 396, 3 et seq.,') made out a warrant to commit the defendant pursuant to the 9th section, but, being afterwards served with an injunction from the district court of the United Slates restraining further proceedings in the matter, refused to deliver the warrant to be executed ; held, that this court would not compel the deliv- ery by mandamus, no want of juris- diction in respect to the injunction appearing. id 4. The court will not enquire, in such case, whether the injunction was is- sued improvidently. id 5. Semble, that an injunction to restrain the execution of a sentence for crime may be treated as a nullity. Per COWEN, J. id See PAYMENT. INSANITY. See INSURANCE, 1, 2. INSOLVENT. See BANKRUPT ACT. PRINCPAL AND SURETY, 6 to 13. " INSOLVENT LAW." See NoN-lMTRisoNMENT ACT, 2. INSPECTION LAW. See CORPORATION, 31. 689 INSURANCE. consequence of which the building WM burned : Held, no defence to an action on the policv. Alston T. Tk Mrrhanic*' Mutual Int. Co. n tkt city of Troy, 329 8. The term representation, when used import an affirmation on the pan of the insured of some past or existing fact, material to the nsk ; not a rtate. mcnt as to matter* resting merely in intention or expectation. Per W At. WORTH, chanrellur. id 1 . A provision in a life-policy that it is to be deemed void in cane the assured shall "die by fits own hand," imports a death hy suicide; i. <. an act of mm. inal scif-di'struclion. Breasted and others, adm'rs JfC. v. The Farmers' Loan and Trust Co., 73 2. Accordingly, in an action on such policy the underwriters will be liable though it appear that the anurcd d row 11 fd himself, provided the act was done in a jit of insanity. id 3. In an action by the assignee of a poli- cy of insurance, brought in the name of the insured, qnerc, whether an alle- gation of notice of low &.C. signed by the plaintiff, will be supported by proof of notice &C. signed by the as. signee. Mann v. The Herkimtr Co. Int. Co., 187 4. At common law, the assignee of a policy of insurance cannot sue upon it in his own name. id 5. Where, however, the charter of an insurance company provided that, in case of an alienation of the property insured by sale or otherwise, the poli- cy should be void, but that the gran- tee or alienee, having the policy as- signed to him, might have the same ratified and confirmed for his use, by the consent of the company, within thirty days next after Mich alienation; and that this should entitle him to all the rights and privilege* of the party originally insured : Held, that a ratifi- cation and confirmation pursuant to the charter, gave the assignee the right to BUC upon the policy in his own name ; and that no action would lie in the name of the assignor. id 6. Whether, under such a charter, a rat- ification and confirmation by the company after the thirty days from the time of alienation, will render the policy valid, quert. id 7. .Where the insured, on applying for insurance upon a building against fire, promised the underwriters verbally that if they accepted the risk he would discontinue the use of a fire-place in the basement, and use a stove instead thereof; but, af^r obtaining the poli- cy, omitted to perform his promise, in VOL. IV. 9. The caw of ZfennufoMH T. Lillie, (3 Bligh's Rep. 202,) commented on and doubted. Per WALWORTH, ckanctL lor. id 10. A representation in the nature of a promise or stipulation for future coo. duct on the part of the insured, must, in general, be inserted in the policy, or the underwriters cannot avail them- selves of it. Per WALWOETH, ekan. cellar, and BOCKEE, senator. id 11. Parol evidence of what pawed be. twecn the insured and underwriter* at and previous to the delivery of the policy, is not admissible for the pur. pose of adding to or varying itt terms. Per WAI.WORTII, chancellor, and BOCKEE, senator. id 12. The general nature and cffoc tofa misrepresentation, properly so called, adverted to and considered. Per WAU WORTH, chancellor. id INTEREST. See USURY. INTEREST OF WITNESS. See LIEN, 4 to 6. WITNESS, 5, 6. JOINDER OF COUNTS. See EMCCTORS AND AomxiSTRATota, & 87 690 INDEX. JOINT TENANT. See EJECTMENT, 2 to 4. JOINT WRONG-DOERS. See PRACTICE, 36, 37, TROVER. JOURNALS OF THE LEGISLA- TURE. See CONSTITUTIONAL LAW, 1 1 . JUDGE'S CHARGE &c, ERROR, 3. FRAUDULENT SALE OF CHATTELS, 1 to 4. JUDGMENT AS IN CASE OF NON-SUIT. See PRACTICE, 3, 8, 9, 18, 19. JUDGMENTS AND EXECU- TIONS. 1. Where a sheriff seizes goods owned by two persons as tenants in common, upon a ./i fa. against one of them, and afterwards the latter purchases the share of his co-tenant, the sheriff may advertise and sell the entire interest or property in the goods, without making a new levy. Birdseye v. Ray, 158 2. Personal property transferred by a de- fendant in a Ji. Ja. before actual levy, though after the writ issued, is not lia- ble to seizure under the writ, provided the transferee be a bona fide purchaser for a valuable consideration, and took the property without notice of the writ. id 3. A mortgagee, though for a pre-exist- ing debt, is a purchaser pro tanto within the above rule. id 4. A man's dwelling house is his castle, not for his own personal protection merely, but also for the protection of his family and property therein. Per WALWORTH, chancellor. Hubbard, Curtit v. 487 5. A defendant in an execution, by clo- sing the outer doors of his dwelling house against the sheriff, may prevent the latter from entering to make a levy on his goods. Per WALWORTH, chan- cellar. id 6. As a general rule, no one can ac- quire, by his own illegal act, a right to the custody of another's person or property. Per WALWORTH, chan- cellor, id 7. The outer door of a dwelling-house being latched merely, the sheriff en- tered it contrary to the known will of the owner, and levied upon his goods therein by virtue of a fi fa.: HELD, illegal, though the owner was not in the house at the time ; and that the levy gave the sheriff no right to re. move the goods. id 8. Held, further, that even a guest in the house might lawfully resist the sheriff's attempt to remove goods thus seized, using no more force than was necessary. id 9. The case in the Year Book, 18 E. 4, (fol. 4, pi. 19,) commented on and ex- plained. Per WALWORTH, chancellor, id 10. Where a defendant moved to set aside a judgment entered up on bond and warrant of attorney, on the ground that the latter were given ia conside- ration of a promise by the plaintiff to make certain advances of money thereafter, which he had wholly failed to do ; held, that the promise being a sufficient consideration to uphold the judgment, the defendant's remedy was by action for a breach of it, and the motion was therefore denied. Nelson v. Sharp, 584 11 . Even had the arrangement as to the advance of money been in the nature of a defeasance, yet, resting in parol merely, it could not* have been set up as a ground for interfering with the judgment. Per COWEN, J, id 12. Judgments and decrees entered af- ter the act of 1840 (Sess. L. '40, p. 327) took effect, though recovered in suits commenced before that time, are INDEX. not lien* on real estate unless docket- ed in the counties where the land* are situated. Ex parte Becker, 613 1 3. A mere levy upon real estate in vir- tue of a Ji. /a., never amounts to a satisfaction. Per BRONSON, J. Tay- lor and others v. Kanney and Orate, im pleaded J-r, 619 14. Where, in scire facia* to revive a judgment, the tcrrc-tcnant pleaded that the plaintiff issued &fi.fa. upon the judgment, and that in virtue there- of the sheriff caused to be levied " the damages &c. on the goods and chat- tels, lands and tenement?' of the de- fendant ; held, not sufficient to show the judgment satisfied, and that the plea was therefore bad. id 15. Otherwise, had the allegation in the plea been that the damages &c. were levied of the goods and chattels, lands and tenements &c. Per BRONSON, J. id 16. It is a general principle that trans- actions between A. and B., whether in or out of court, shall not have such an effect as will take away the pre- viously acquired rights of third per- sons. Per BRONSON, J. id 17. \fi.fa. having been returned satis- fied, an entry was made in the docket of the judgment pursuant to 2 R. S. 362, 26, and the return was after- wards vacated by order of the court : Held, that lands sold by the execu- tion debtor to a bona fide purchaser, after the entry in the docket and be- fore the vacatur, could not be affected by the judgment. id 18. As against the judgment debtor, however, his heirs Ate., such order will operate restrospectively, and car- Sback the lien of the judgment to o date of the original docket Per BRONSON, J. id 19. Where, in scire facias to revive a judgment, the terrc-tenant pleaded the return of an execution satisfied, an entry upon the docket pursuant to the above statute, and that after such entry he purchased the lands in ques- tion in good faith, for a valuable con- sideration ; held, that the plea was bad, inasmuch u it did not set forth a 691 purchase from or under the jodnMOt debtor. id Set ARBITRATION AND AWARD. ATTACHMENT. BILL* or EXCHANGE AND PROMIS- SORY NOTES, 3, 4, 80. EVIDENCE, 8. LANDLORD AND TENANT, 5, 6. MORTGAGE or CHATTELS. PRACTICE. PRINCIPAL AMD SURETY, 1 to 5. REDEMPTION or LAMM. SET-OFF. JURISDICTION. See DEBTORS, ABSCONDING, CONCEALED AND NON-RE*IDENT, 7 to 11. INJUNCTION, 2 to 5. PRACTICE, 23. JUSTIFICATION OF SURETIES See DEBTORS, ABSCONDING, CONCEALEI AND NON-RESIDENT, 1 to 4. LANDLORD AND TENANT. 1. Goods of a mere under-tenant which have been removed from the demised premise* before any rent became due, are not liable to be distrained for sub* scqucntly accruing rent. Acker, sker. iff fc. v. Wither ell and other*, 112 2. Otherwise, if the good* belong to one who occupied as assign* of the origi- nal tenant. id 3. The fact of demised premises being found in the possession of one not named in the lease, raisrs the pre- sumption that he is in as assignee of the lessee and not as under-tenant ; es- pecially if it appear that he has paid rent to the original landlord. id 4. Though goods be seixcd by the sber. iff under an attachment afainvt an absconding debtor, this detracts natk. ing from the landlord's right to dts. train them for rent. id 692 5. A notice of rent being due, given by a landlord to an officer pursuant to 1 H. S. 746, 12, is in the nature of process, and should state facts enough to show that the landlord is entitled to a preference over the execution creditor. Per BRUNSON, J. Millard v. Robinson, 604 6. Accordingly, where the goods of R. were taken in execution, and the no- tice showed, among other things, that the premises on which the seizure was made were in the vccvpalion of R. and others, and that a specified amount was due to L., the landlord, for a balance of one year's rent of said premises &.C., but did not show R. to be the tenant of L. ; held, that the notice was defective, and that the officer might therefore disregard it. id See EJECTMENT, 5 to 7. LAW AND FACT. See EVIDENCE, 3, 7, 16. FRAUDULENT SALE or CHATTELS. TKOVER, 3, 7. LAW OF THE LAND." See CONSTITUTIONAL LAW, 3. LEGAL JUDGMENT. See COURT OF ERRORS. LEGISLATIVE JOURNALS. See CONSTITUTIONAL LAW, 11. LEGISLATIVE POWER. See CONSTITUTIONAL LAW. LETTER. See GUARANTY. LEVY. &e JUDGMENTS AND EXECUTIONS, 1 to 9, 13 to 15. MORTGAGE OF CHATTELS. LIEN. 1. Under the New- York city mechan- ics' act, (Sess. L. '30 p. 412, and Seas. L. '32, p. 181,) the claimant cannot acquire a lien on unliquidated damages which have accrued to the builder by reason of a violation of tho contract on the part of the owner ; but the lien is restricted to such funds cs are due or to become due for actual performance. Miner v. Hoyt, 193 2. In an action under the above law, the owner is entitled to be allowed for all demands he held against the build- er at the time the attested account was served, provided they be such as might have been set off in an action brought by the builder himself. id 3. Otherwise, if the set-off be shown to have been created in fraud of the plaintiff 's lien. Per COWEN, J. id 4. The plaintiff in such action cannot use the builder as a witness, he being interested. id 5. A release to the builder, sufficient to obviate the objection as to his interest, would necessarily extinguish the plain- tiff's right of action; and this not- withstanding an express declaration in the release that such was not the in- tent. Per COWEN, J. id 6. Where a release of this character, however, is given by the plaintiff at the trial, the defendant can only avail himself of the fact by pleading it puis darrein continuance. Semble ; per COWEN, J. id See CORPORATION, 30. JUDGMENTS AND EXECUTIONS, 12, 17 to 19. LIFE POLICY. See INSURANCE, 1, 2. LIMITATIONS, STATUTE OF. Though the general statute of limita- tions docs not in terms apply to a bill in equity, even when concurrent with the remedy at law ; yet the court of chancery always allows it to be plead- INDEX. f>93 cd in such eases. Per COWEN, J The People ex rel. $c. v. Everett, late sheriff $c. t 71 See ATTACHMENT. PRACTICE, 4, 5. M MAIL, SERVICE BY. Ste BILLS or EXCHANGE AND PROMISSO- RY NOTES, 6. MANDAMUS. A mandamus is a prerogative writ which this court may issue or with- hold in its discretion. Per COWEN, J. Ex parte Fleming and another, 581 See INJUNCTION, 1 to 4. MASTER IN CHANCERY. See CHANCERY, 9. DEED, 1,3. WITNESS, 4. MECHANICS' LIEN. See LIEN. MEMORANDUM. See BAILMENT. EVIDENCE, 1 to 7, 12 to 16. MERGER. See ASSUMPSIT, 4. INSURANCE, 7, 10, 11. MILITIA. See COURT MARTIAL. MISJOINDER OF COUNTS. See EXECUTORS AND ADMINISTRATORS, 8. MONEY PAID. See AsstmruT, 1, 3. BILLS or EXCHANGE AND PRO RY NOTES, 8 to 10. MORTGAGE OF CHATTELS. 1. SrmMe, that the interest of a mortga- gor in personal property may be law. fully seized and sold on a fi. fa. against him, subject to the claim of the mortgagee, at any time before the latter has exercised his right of redo. cing the property to possession. Per WALWORTH, chancellor. Hanford v. Artier, 971 2. At all events, replevin in the tepit will not lie by the mortgagee against the sheriff for the mere act of levying under such circumstances. Srmble. Per WALWORTH, chancellor. id 3. Quere, however, whether the action will not lie, where the sheriff levies upon the whole interest in the proper- ty. Per HOPKINS, senator. id See FRAUDULENT SALE or CHATTELS. JUDGMENTS AND EXECUTIONS, 3. MORTGAGE or VESSELS. MORTGAGE OF LANDS. 1 . A decree of foreclosure is inoperative by way of estoppel upon one not made a party to the suit, and who entered into possession of the mortgaged prem- ises before the suit was commenced ; nor can he be turned out of possession by an execution on the decree. Ful- ler v. Van Geettn, 171 2. In ejectment, however, by a purchas. cr under the decree, against one not a party, the former may on the record of the foreclosure suit by way of de- raigning title. id 3. The decree cannot be invalidated or questioned, in such case, on the ground of mere error or irregularity. id 4. Where the charter of a corporation gave the company power V> take mart- gages, and then provided that all . in virtue of them should be made in 694 INDEX. the county where the property was situated : held, that a decree of fore- closure, though describing the proper- ty as being in the county of O., and directing a sale there, whereas it was situated in the county of M., was not impeachable on this ground collateral- ly ; and that, upon a sale made in pursuance of it, the purchaser acquir- ed a good title. id 5. The clause in the charter may be satisfied by confining it to a summary foreclosure at law ; at all events, even if applicable to a foreclosure in chan- cery, it is but directory as to tHat court, and an error in respect to it can only be corrected on appeal. Per COWEN, J. id See ASSUMPSIT, 1, 2. DEED, 1, 2. EVIDENCE, 9, 10, 19, 20. EXECUTORS AND ADMINISTRATORS, 4. MORTGAGE OF VESSELS. A mortgagee of a ship, who has taken possession and caused it to be register- ed- in his own name, will, in general, be liable for supplies furnished and repairs made ; and this, though his relation to the ship was unknown to the creditor when the demand arose. Miln v. Spinola, 177 MOTIONS, ENUMERATED AND NON-ENUMERATED. See NEW TRIAL, 4 to 6. MUNICIPAL CORPORATIONS. Sec BILLS OF EXCHANGE AND PROMISSO- RY NOTES, 17 to 21. CONSTITUTIONAL LAW, 6, 7, 12, 14. CORPORATIONS. p N NEGLIGENCE. See DEBTORS, ABSCONDING, CONCEALED AND NON-RESIDENT, 5, 6. OFFICE AND OFFICER, 4 to 9. ROADS AMD HIGHWAYS, 3, 4. NEWLY DISCOVERED EVI- DENCE. See NEW TRIAL, 6. 1. A new trial will not be granted on the sole ground of the verdict being against the weight of evidence, except upon payment of costs. Goodyear v. Ogden and Pearl, 104 2. The case of Green v. Burke, (23 Wend. 490,) commented on, and the reporter's abstract of it corrected, id 3. After judgment has been perfected on a verdict rendered at the circuit, it is too late to move for a new trial on the mere ground of surprise. Rapelye and Pur dy v. Prince and Prince, 119 4. In general, a motion for a new trial on the ground of surprise will be heard only at the special term ; and this, though a case or bill of excep- tions have been made. id 5. If such motion be made where there is also a case or bill of exceptions, the court may, in its discretion, suspend a decision until the enumerated motion shall have been argued. Per BRON- SON, J. id 6. Where the intention is to move o the ground of newly discovered evi- dence, the ground of surprise may also be added, and the whole will then be heard together at the general term. Per BRONSON, J. id 7. The granting or refusing of a motion for postponement at the circuit is within the discretion of the judge, and his decision ought not, in general, to be interfered with. Per COWEN, J. Vennilyea v. Rogers, 567 See EJECTMENT, 6. ERROR. NEW YORK, CITY Of. See CONSTITUTIONAL LAW, 6 to 14. LlBN. INDEX. NON-IMPRISONMENT ACT. 1. Where a debtor is proceeded against by warrant under the third and niib- equcnt sections of the non-imprisnn. nicpt act, (Sett. L. of '31, p. 396.) and obtains a discharge pursuant to the seventeenth section, the awign- raent enures only to the benefit of the creditor on whose application the pro. eceding was instituted, and not to the benefit of creditors generally. Per COWEN, J. Berthelon v. Betii, 577 2. That part of the act authorizing a debtor to be thus proceeded against is not an insolvent law, and therefore was not suspended by the act of con- gress in relation to bankruptcy passed August 19th, 1841. id 3. The proceeding contemplated by the 3d section of the non-imprisonment act is of a civil and not a criminal na- ture. Per COWEN, J. Ex forte Fleming and another, 581 4. An order being made for the commit- ment of a debtor under the 9th section of the non-imprisonment act, he pre- sented to the officer making it an in- ventory of his estate &c. pursuant to the third subdivision of the 10th sec- tion, for the purpose of obtaining a dis- charge. The application was opposed by the creditor and denied, on the ground that the debtor's proceedings were not just and fair and that he was chargeable with actual fraud. The debtor was then committed to jail and afterwards applied for a discharge to another officer under the 12th section of the act Held, that the debtor was estopped from trying the same matter over again so long as the first decision j remained unreversed, and that the of- ficer's order dismissing the second ap- plication for that reason, was right. The People ex rel. Lodowick v. At, kin, judge, $c., 606 See BANKRUPT ACT, 1,2. Cosys, 7. INJUNCTION, 3, 4. NONSUIT. See FRAUDULENT SALE or CHATTELS, 8, 10, 13. PRACTICE AT THE TRIAL, 2, 3. NONSUIT, JUDGMENT AS IN CASE OF. See PRACTICE, 3, 8, 9, 18, 19. NOTARY. A notary public cannot delegate hi* ot ficial authority to another. Ptr BROX. BON, J. Sheldon, ex'r J-c. v. Benksm, impfd. $c., 199 See BILLS or EXCHANGE AND Pi *y NOTES, 14, 15. NOTICE. See CORPORATION, 16, 22, 24 to 26. DEBTORS, ABSCONDING, CONCEALED AND NON-RESIDENT, 1 to 4. INSURANCE, 3. LANDLORD AND TENAJTT, 5, 6. NOTICE OF MOTION TO CHANGE VENUE. See VENUE, 11, 12. NOTICE OF PROTEST. See BILLS or EXCHANGE AKD PR RY NOTES, 6, 14, 15,31. EVIDENCE, 12, 13. o OBJECTION, WAIVER OF. See ERROR, 1. 9. OFFICE AND OFFIl'ER. 1. As a general rule, all public officrr*, though not expressly authorized to MIO by statute, hare a capacity ti c commensurate with their public tiwt and duties. Prr BROMOX, J. T!*e Supervisor of the loten of (Jalvay r. Stiwuon, 13G i. In actions cither by or ?!* any of the officers named in 2 K 8 . 473. 4 92, the individual name of the in. 696 INDEX. cumbent must be used, with the ad- dition of his name of office. * id 3. Accordingly, where the action was in the name of " The supervisor of the iown of G.," without mentioning the name of the incumbent ; held, that i could not be maintained. id 4. When an individual sustains an inju- ry by the misfeasance or nonfeasance of a public officer who acts or omits to act contrary to his duty, the law gives redress to the injured party by action adapted to the nature of his case. P'er BRONSON, J. Adsit and others v. Brady, 630 5. It is the duty of 3 superintendent of repairs on the canal, when he. finds a break in it or a sunken boat obstruct- ing the navigation, to stop the breach a' remove the obstruction withour. waiting for orders from the commis- sioners ; and by omitting to do so he will render himself liable to persons sustaining damage thereby. id 6. Otherwise, ;f the omission to repair resulted from obedience to orders given by the commissioners. Per BRON- SON, J. id 7. The fact of such orders having been fivcn, however, will not be presumed, ut must be shown affirmatively. Per BRONSON, J. id 8. Where a declaration against a super- intendent stated, in substance, that a boat which had been sunk in the canal rendered the navigation unsafe ai:d dangerous, and that, though the de- fendant had notice, (fee., 119 negligent- ly suffered the boat to remain, where- by the plaintiff's boat in passing along the canal was injured ; held, sufficient to show the defendant liable, notwith- standing the svant of an averment that he had public money in his hands for the purpose of making repairs. id 9. Held, further, that the declaration need not aver the neglect of the de- fendant to have been wilful and ma- licious, id Ste ATTACHMENT. ATTORNEY. BANKS AND BANKING AssociArioNS,!. BULLS OF EXCHANGE AND PROMISSO- RY NOTES, 20. See BOND, 3 to 7. COMMON SCHOOLS, 3, 4. CONSTITUTIONAL LAW, 7, 14. CORPORATION, 1, 2. COSTS, 9. DEBTORS, ABSCONDING, CONCEALED AND NON-RESIDENT, 5, 6. INJUNCTION, 2 to 4. JUDGMENTS AND EXECUTIONS, 1 to 9. LANDLORD AND TENANT, 4 to 6. MORTGAGE OF CHATTELS, 2, 3. NOTARY. ROADS AND HIGHWAYS, 2 to 4. SUPERINTENDENTS OF THE POOR. ONUS PROBANDI. See CORPORATION, 9 to 14, 17 to 19, 22, 23. COVENANT, 13. EJECTMENT, 1 to 3, 5. FRAUDCLENT SALE OF CHATTELS. INFANCY. OFFICE AND OFFICER, 7. ORDER OF JUDGE OR COMMIS- SIONER. See PRACTICE, 32 to 34. OUSTER. See EJECTMENT, 2 to 4. OUTER DOOR. See JUDGMENTS AND EXECUTIONS, 4 to 9. OVERSEERS OF THE POOR. See SUPERINTENDENTS op THE POOR. PAROL EVIDENCE. See ASSUMPSIT, 4. BAILMENT. BILLS OF EXCHANGE AND PROMISSO- RY NOTES, 13, 25. COVENANT, 14 to 16. EVIDENCE, 1 to 7, 13 to 16, 19, 20. GUARANTY. INSURANCE, 7 to 11. JUDGMENTS AND EXECUTIONS, 11. INDEX. 697 PARTICULARS, BILL OF. See COSTS, 10. PRACTICE, 13 to 17. PARTIES TO ACTION. See BILLS of EXCHANGE AND PROMM. SORV NOTES, 1 to 4, 7 to 12, 30. COMMON SCHOOLS, 3, 4. DEBTORS, ABSCONDING, CONCEALED AND NoN.RE81DL.VT, 5, G. EXECUTORS AND ADMINISTRATORS, 2, 3, 8. INSURANCE, 3 to 6. MORTGAGE or LANDS. OFFICE AND OFFICER, 1 to 3. PARTNERSHIP. 1. An accommodation endorsement made by one member of a mercantile firm without the assent, either express or implied, of his co-partners, cannot be enforced against the latter, except in favor of a bona fide holder without notice. Per NELSON, Ch. J. Austin and others v. Vandermark, impfd., Jt. 259 2. N. gave L a business note, endorsed by M., which was transferred to A. After the note fell due, M., being in- debted to N., made another note for the same amount, payable to the order f tii- jurisdiction of the court and be nut nerved with the declaration, the plaintiff* cannot treat the suit as a mere nullity. Wktte and other* v. Smith and other t, 166 24. A suit baring been and an attorney employed for the de- fendants, the plaintiff, before receiv. ing notice of retainer, ontwed a rale to discontinue and omiunenced se- cond suit against the defendants far the same cause; to which UK-V plead- ed the pendency of the fin* suit to abatement: Held, that the plaintiff having omitted to pay the costs of the first suit, the rule for dismatinsjsjaeo was a nullity, and formed no newer to the plea. 25. Had the plaintiff, on recerring the plea in abatement and befors replying. 7QQ INDEX. paid the costs of the first suit, the payment would have related back to the time the rule for discontinuance was entered, and thus rendered it ef- fectual. Per BRONSON, J. id .. Though the rule entered in such case be, that the plaintiff have leave to discontinue without costs, it will not avail him unless the costs be paid. id 27. In an action of debt on bond, the de- fendant moved for a commission to examine witnesses, with a stay of proceedings until its return, on an affi- davit that he had " a good and substan- tial defence to the bond" &c. : Held, that the affidavit was defective in not stating a defence on the merits ; and a stay of proceedings was, for this reason, denied. Meech v. Calkins and others, 534 J8. In verifying a plea in bar concluding to the country under the 1st rule of May term, 1840, an allegation that the defendant has " a full and sub- stantial defence" &c. is not sufficient ; the affidavit should be that the defen- dant has " a good and substantial de- fence" &,c., in the language prescrib- ed by the rule. The Batik of Utica v. Root and others, 535 29. An affidavit on which to move for a reference, must, in general, be made by the party, and not by the attorney. Wood v. Crowner, 548 30. Otherwise, if a sufficient excuse ap- pear for dispensing with the affidavit of the party. Semble. id 31 . Where a replication was filed and served, to which the defendant inter- posed a rejoinder ; held, that the plain- tiff had no right to file and serve an amended replication of course, and that, having done so, the defendant might treat it as a nullity. Cowles v. Coster, 550 32. If an order of a judge or commission- er be revoked by him, a subsequent application to another commissioner, hi reference to the same matter, and in the same stage of the proceedings, is irregular ; for a revocation is in effect the same thing as an original refusal. Gould and others v. Root and others, 554 33. The order of a judge or commission- er cannot be treated as a nullity on the mere ground of its having been improperly or even fraudulently ob- tained ; the remedy of the party in such case being by appeal, motion to supersede, application to revoke &c. id 34. After notice of hearing before ref- erees had been given by the plaintiff, the defendant obtained an order stay- ing proceedings till a motion for a commission could be made to a cir- cuit judge ; the motion being noticed for a day subsequent to that appointed for the hearing. The order v.-as af. terwards revoked on the plaintiff's application, and notice thereof given to the defendant's attorney, who thereupon applied to a commissioner residing in another county und ob- tained an order staying proceedings for the purpose of moving the court t>> set aside the order of revocation. The plaintiff's attorney treated the com- missioner's order as a nullity, proceed- ed to a hearing of the cause, and ob- tained a report in his favor. Held, on the defendant's motion to set aside the report, that though the order of the commissioner was irregular, the plaintiff had no right to treat it as a nullity ; and the motion was therefore granted, but without costs. id 35. In order to warrant this court in granting a rule against a person, the disobedience to which would be a contempt, he must not only be an offi- cer of the court or a party to a suit or proceeding therein, but he must be so in respect to the particular wrong which he is ordered by the rule to re- pair. Per COWEN, J. Ex parte Ketchum, public adm'r of the city of New-York, 564 36. In general, there can be but one judgment record in the same cause. Webb v. Bulger and Bulger, 588 37. Where, however, in an action of as- sault and battery against two defen- dants, a verdict was rendered in favor of one and against the other, where- upon the latter made a bill of excep- tions, and the former perfected judg- ment for his costs, the court permitted the judgment to stand on condition that the costs of enteringit up should be deducted, though the cause was still pending on the bill of exceptions, id 86. An affidavit of service of paper* on a deputy of one of the clerks of thin court, in the clerk's office, is good, without adding that the clerk was absent. Anonymout, 597 39. So, nf an affidavit stating service on a clerk of one of the clerk" of th court, in his office. Note (a.) id 40. Where the papers for a motion are properly entitled, an affidavit of ser- vice immediately following, or en- dorscd upon them, though not itself entitled, is sufficient. Anonymous, 597 See AFFIDAVIT OF MERITS. ARBITRATION AND AWARD. ATTACHMENT. ATTOR.NEV. BANKRUPT ACT, 3. BILL OF EXCEPTIONS, 2. BILLS OF EXCHANGE AND PROMIS- SORY NOTES, 1 to 4, 30. BOND. COMMISSION TO TAKE TESTIMONY. COSTS. DEBTORS, ABSCONDING, CONCEALED AND NON-RESIDENT, I to 4, 10. EJECTMENT, 6. EXECUTORS AND ADMINISTRATORS, 1, 2, 3, 8. INJUNCTION, 1 to 4. JUDGMENTS AND EXECUTIONS, 1, 4 to 15, 17, 18. MANDAMUS. NEW TRIAL. OFFICE AND OFFICER, 2, S. REPLEVIN. SET-OFF. SPECIAL VERDICT. USURY, 1, 2, 17 to 19. VENUE. WITNESS, 1 to 6. PRACTICE AT THE TRIAL. 1. If a witness who has been duly sub- poenaed, either neglect to attend, or leave court after the trial has com- menced, it is in the dtfcrction of the judge whether he will suspend the trial until the witness can be brough in. Rapelye $ Purdy v. Prince 4 Prince, 119 2. The rule that a plaintiff who proves all that is laid in his declaration ought not to bo nonsuited even though he fail to make out a cause of action, ap- plies only to cases where the declare- INDEX. 70 1 two to so defective that a Terdiet far the plaintiff on any put of it eeold nut be sustained. IhmUf. Byd 4/ Boyd v. Towntfnd nd otktri, 1 83 3. Where issue wee taken upon a dees*, ration alleging matters sufficient to make out a right of action, along with others wholly inrofficirnt, end, at the trial, the plaintiff failed in -^-^fif that part of hw declaration which wee good ; ktld, though be proved ail the rcM, he rhould be nonsuited. i-t 4. After the plaintiff has rested his cause, it is in the discretion of the court whether he shall be allowed to give f uiiher evidence save in reply. Hhepard v. Poller, J&2 5. What shall be deemed evidence in reply, under such circumstances, eon. sidered. id G. The plaintiff, on the trial of a cause, having announced his intcntioa of itfting, the defendant moved for a nonsuit ; whereupon the court re-call, ed and interrogated a witness of the plaintiff, and thus drew out a new fact tending against the latter on the leading point in dispute. Held, that the court were bound to hear further testimony on the part of the plaintiff in reply," and that, for their refusal to do so, error would lie. id 7. Whether a plaintiff thell be allowed to depart from the case fir** rstabHeh. ed by him, but which be baa faded to sustain, and prove a new and incom- patible one, is matter resting in the discretion of the court at the uial, upon which error will not lie. fist note .a) id Set BILL OF EXCEPTIONS, 3. BILLS OF Ex CHANGE AND PROMIS- SORY NOTES, 1 to 4, 30. C'llAKCUY, 8. EMUE.NCK, 3, 7, 16. FRAUDULENT SALE or CILITTELS. , C. USURY, 19. WITNESS, 8. PRACTICE IN CHANCERY. See CHANCERY, 1 to 7. 9. 702 INDEX. PRECEDENT, JUDICIAL. See COURT OF ERRORS. PRESUMPTION AND PRESUMP- TIVE EVIDENCE. See BILLS OF EXCHANGE AND PROMIS- SORY NOTES, 28, 29. CONSTITUTIONAL LAW, 10. CORPORATION, 9 to 14, 17 to 19, 22, 23. EJECTMENT. EVIDENCE, 17, 18. FRAUDULENT SALE OF CHATTELS. INFANCY. LANDLORD AND TENANT, 3. OFFICE AND OFFICER, 7. PRINCIPAL AND AGENT. See ATTORNEY. BANKS AND BANKING ASSOCIA- TIONS, 1. DEED, 3 to 8. PRINCIPAL AND SURETY, 1. PRINCIPAL AND SURETY. 1 A mere surety for a debt will not be bound by a decree or judgment pro- nounced in a suit between his princi- pal and the creditor, even though the suit was conducted, on the part of the principal, exclusively by the sure- ty as his agent. Jackson, appellant v. Griswold, respondent, 525 2. Otherwise, semble, if the surety vol untarily came in and litigated as such in the name of his principal, with tin assent of the creditor. id 3. If, in a suit between the creditor an< the principal, a decree or judgmen be pronounced against the validity o: the debt, this will operate to discharg the surety, and consequently may b used as evidence in his favor. Pe COWEN, J. 4. Several instances adverted to which a person, though not named a a party in a suit, may nevertheless b concluded by the judgment rendere therein. Per COWEK, J. . The cases of Douglass v. Hoioland, (24 Wend. 35,) Willey v. Paulk, (6 Conn. R. 74,) and Ue Forest v. Strong, (8 id. 513,) commented on and explained. Per COWEN, J. id , Though a creditor neglect to prose- cute for his debt after being notified to do so by the surety, this will not discharge the surety if the principal was insolvent at the time. Herrick v. Borst and Warnick, 650 . Otherwise, if the principal be solvent at the time, and the neglect to prose- cute is followed by subsequent insol- vency on his part. Per COWEN, J. id . A surety, however, in wder to avail himself of this rule at law, must bring his case strictly within it. Semble; per COWEN, J. id 9. The cases of Pain v. Packard, (13 John. Rep. 174,) and King v. Bald- win, (17 id. 384,) commented on and disapproved. Per COWEN, J. id LO. Semble, that the principal is not to be deemed solvent at the time of the notice to prosecute, unless he be then able to pay all his debts according to the ordinary usage of trade. Per COWEN, J. id 11. Where the circuit judge charged that the term solvent, in such case, meant that the principal was able to pay all his debts from his own means, or that his property was so situated that all his debts might have been collected out of it by legal process : Held, that the charge was sufficient- ly favorable to the surety, and a mo- tion for a new trial made in his behalf was therefore denied. id 12. Held further, that mere probable solvency of the principal in reference to the debt in question, at the time of giving notice to prosecute, would not bring the case within the rule. id 13. The meaning of the terms solvent and insolvent, as applied to various other cases, discussed. Per Cow EN, J. id See ASSUMPSIT, 3. BILLS OF EXCHANGE AND PBOMIS SORT NOTES, 8 to 13. BOND. INDEX. 703 :TATUT o. GuARAinr. PRIVATE ROADS. See ROADS AND HIGHWAYS, 1. PRIVILEGE FROM ARREST. See WITNESS, 1 to 4. PRIVILEGE FROM TESTIFY- ING. See WITNESS, 7. PRODUCTION OF PAPERS. See CHANCERY. EVIDENCE, 17, 18. "PROFITS" AND "INCOME." See TAXES AND ASSESSMENTS. PROMISE. See ASSUMHIT. BILLS OF EXCHANGE AND PROMISSO- RY NOTES, 11 to 13. EVIDENCE, 17, 18. EXECUTORS A.NP ADMINISTRATORS, 3, 6 to 8. FRAUDS, STATUTE OF. GUARANTY. INFANCY. INSURANCE, 7 to 11. JUDGMENTS AND EXECUTIONS, 10, 11. PROMISSORY NOTES. Set ASSIGNOR AND ASSIGNEE, 3. BANKS AND BANKING ASSOCIATIONS. BILLS OF EXCHANGE AXD PROUISSO- RY NOTES. EVIDENCE, 12, 13, 17, 18. EXECUTORS AND ADMINISTRATORS, 3, 6 to 8. PARTNERSHIP. PAYMENT. PLEADING. PRACTICE, 1, 9, 14. PURCHASE!." QUIET ENJOYMENT. See AssuMTsrr, 1, 9, 4. COVENANT, 10. K RAIL-ROAD COMPANY. Set TAXES AND ASSESSMENTS, 6. RATIFICATION. See INFANCY. LVSURANCE, 5, 6. RECEIPT. See BAILMENT. COVENANT, 14 to 16. EVIDENCE, 1 to 7. RECITAL. See CORPORATION, 11. REDEMPHON OF LANDS. 1. To entitle a judgment creditor t re. deem land* from a purchaser at a sheriff's sale, the judgment in virtue of which the right of redeeming a claimed must be againrt the dtfr*. dant in tke writ under which the wlo look place, and murt aJ> be a Itt* ra tkt lands sold. Ex fartt Wood md otkert, 549 9. Judgments having been ofctained K against R. which were a lien on hit land, he conveyed to P. ; after which executions were issued, and Uw lands sold by the sheriff to W. P. thai conveyed to &, against whom and R. a judgment was obUincd by M. with- in ftltosn Booths from UM Unff'i 704 INDEX. sale, and M. claimed the right to re. deem on paying the amount of W.'s bid, together with interest. Held, however, that he was not entitled to redeem. id 3. A person under whose execution lands have been sold is not authorized to redeem in virtue of the judgment (on which the execution issued, either from the purchaser or a creditor ; and this, though no part of the proceeds of the sale were realized upon his exe- cution, but were wholly exhausted by other and prior executions under which the property was sold at the same time. Ex parte Paddock, 544 4. Where, after one creditor had re- deemed lands sold under a fi. fa., a second creditor, with a view of re- deeming from the first, paid uncon- ditionally to the sheriff the requisite amount, but immediately thereafter served an injunction in his own favor restraining the sheriff from paying it over ; held, nevertheless, that he was entitled to the sheriff's deed. Ex narte Newell receiver, fyc. 589 5. Where a junior creditor complied with the requisites for redeeming from the purchaser by reimbursing the amount of the bid, &c., and, on the same day, a senior creditor who had previously become assignee of the original certificate of sale, presented to the sheriff the proper evidence of that fact and of his right as creditor ; held, that he was entitled to the sher. iff 's deed without paying any money. Ex parte Newell, receiver, $c. 698 6. The affidavit of a redeeming cred- itor as to the amount due on his judg- ment, though made five days before presenting the papers to the sheriff, is sufficient. id 7. Where such creditor is an assignee of the judgrftent in virtue of which he seeks to redeem, though the statute in terms requires him to present to the sheriff a copy of his assignment &c., (2 R. S. 373, 6, gubd. 2,) it is suffi- cient if the original be presented. Semble. id 8. An acknowledgment of the assign- ment, certified by an officer authorized to take acknowledgments of deeds, is not a sufficient verification of it for the purpose of redeeming. id 9. Where a copy of an assignment was verified by affidavit as follows : " This deponent is the assignee and owner, according to the annexed copy of the transfer thereof by &c., [naming the assignor,] in good faith, of the said judgment ;" held, a sufficient verifica- tion, though unskilfully drawn. id 10. Where, for the purpose of redeeming land sold on execution, a judgment creditor paid to the sheriff certain for- eign coin, which was received by him at its current value without objection, but which turned out to be legally worth a few cents less ; yet held, a valid payment. Ex parte Becker, 613 11. So, where the payment was made partly in current foreign coin which was not a legal tender. id RELATION OF DECREE. See BANKRUPT ACT, 1, 2. DEED, 1, 2 RELEASE. See LIEN, 4 to 6. WITNESS, 5, 6. RELEVANCY OF EVIDENCE. See FRAUDULENT SALE OP CHATTELS, 5 to 14. RENEWAL OF PROCESS. See COMMON SCHOOLS, 2. RENT. See LANDLORD AND TENANT, 1 to 6. REPEAL. See COMMON SCHOOLS, 1, 2. NON-IMPRISONMENT ACT, 2. STATUTES, 5. INDEX. REPLEVIN. 705 1. A summons in replevin need not spe- cify the property sought to be recov- ered ; and if it do so, that part of it may be rejected as surplusage. Fine. kout v. Grain, theriff fc., 537 ] 2. Where, in replevin, several articles of property were described in the writ, but, in consequence of directions given by the plaintiff, a part of them only was seized by the officer ; htltl, that the plaintiff might nevertheless include the whole in his declaration, and this, though the summons served described the articles seized , without mentioning the residue. id 3. Where the plaintiff intended to bring replevin in the detinct, but, by mis- take of his attorney, the charge of de- taining was preceded in the writ by words imputing an unlawful taking also, he was allowed to amend on terms by striking out those words, even after the writ had been execut- ed. Anonymous, 603 Set MORTGAGE OF CIUTTKLS, 2, 3. PRACTICE, 3. REPLICATION. See PRACTICE, 31. REPLICATION OF NEW PROMISE. See INFANCY. REPRESENTATION. See INSURANCE, 7 to 12. RESCINDING CONTRACT. See DAMAGES. 5. RES INTER ALIOS ACTA. See EJECTMENT, 5 to 7. EVIDENCE, 8 to 11. FRAUDULENT SALE or CHATTELS, 9. VOL. IV. 89 Sei JCDGMENTS AND ExECCTlOW, 16. MORTGAGE or LAND*, 1 to 3. PRINCIPAL AMD Scarrt, 1 to S RESISTING AN OFFICER See JoDOMBirra AND EXECUTIONS, 4 to 9 RES JUDICATA. See CoRroKATio.s, 14. DEBTORS, ABSCONDING, CONCEALED AND NON-RESII>*..\T, 11. EVIDENCE, 8 to 11. MORTGAGE or LANDS, 1 to 3. No.\. IMPRISONMENT ACT. 4. PRINCIPAL AND SL-RETT, 1 to 5. RETAINER. See ATTORNEY. RETURN. See ATTACHMENT. JUDGMENTS AND EXECUTIONS, 14, 15, 17 to 19. REVOKING ORDER. See PRACTICE, 32 to 34. VENI-E, 9, 10. RIPARIAN OWNER. See RIVERS AND CREEKS. RIVERS AND CREEKS. 1. Where, in the TT uurc. III UJQ VUUTvyi situated in the city of hi J * was described as a null be, bofiminf otc., and running " eastwardry to 4U Gene fee rivtr; thence northwardly aloitgr thtthore uf tatd river to Bii/isto. street" Aic. : IlrLD, that oo part of the bed of the river pasted un conveyance, but thai the grantee toot 706 INDEX. only to lowwater-mark. Child and others v. Starr and others, 369 2. BOCKEE, senator, dissented, holding that the words " to the Genesee river" extended the grantee's right usque filum aqua ; and that the words " along the shore" &c., should be con- strued as meaning, along the centre of the river in the general direction of the shore. id 3. Semble, the case of The Commission- ers of the Canal Fund v. Kempshall, (26 Wend. 404,) has settled that, in this state, as in England, a grant of land bounded generally on a naviga- ble fresh water river, extends the right of the grantee to the centre or thread of the river. Per WALWORTH, chan- cellor ; sed quaere, per BRADISH, presi- dent, id 4. Otherwise, however, if the bank, shore or margin of the river be designated as the boundary, or the line be describ- ed as running along the bank &c. Per WALWORTH, chancellor. id 5. The like rule applies to grants of land bounded on highways, party- walls, &c. Per WALWORTH, chancel- lor, and BRADISH, president. id 6. It makes no difference, in the appli- cation of the rule, whether the grant relate to a city-lot, or to a larger tract of land in the country. Per BOCKEE, senator. id 7. A river in which the tide does not ebb and flow has no shores, in the technical sense of that term; but, when applied to such river, it means those portions of the banks which touch the margin or edges of the stream at low water. Per WAL- WORTH, chancellor, and BRADISH, president. id 8. A boundary upon the shore is liable to variation from alluvial increment, the attrition of the waters, &c. Per WALWORTH, chancellor. id 8. The bed of a private river cannot pass as incident or appurtenant to a grant. Per BRADISH, president. * id ROADS AND HIGHWAYS. 1. The statute (1 R. S. 513, 77 el seq.) authorizing a private road to be laid out over the lands of a person, without his consent, is unconstitutional and void. NELSON, Ch. J. dissented. Taylor v. Porter and Ford, 140 2. Where a road district was formed from parts of two districts, and was afterwards ordered to be discontinued by the commissioners of highways ; held, that the order was valid, though it did not expressly provide for em- bracing the territory to which it relat- ed within any other road district, the effect being to restore the two dis- tricts to their original limits. The People ex rel. Seward v. Sly and others, 593 3. Whether, in a civil action against commissioners of highways for non- repair of bridges &c., the declaration must aver that the defendants had funds, quere. Adsit and others v. Brady, 630 4. The cases of Bartlett v. Crazier, (17 John. Rep. 439,) The People v. The Commissioners tyc. of Hudson, (1 Wend. 474,) and The People v. Adsit, (2 Hill, 619,) commented on. id See RIVERS AND CREEKS, 5. SALE OF CHATTELS. See BAILMENT. CONTRACT, 6 to 8. DAMAGES. EVIDENCE, 1 to 7. EXECUTORS AND ADMLVISTRATORS, 4 to 7. FRAUDULENT SALE or CHATTELS. JUDGMENTS AND EXECUTIONS, 2, 3. USURY, 12 to 16. SALE OF CREDIT. See USURY, 5 to 10. INDEX. SATISFACTION OF JUDGMENT See JUDGMENTS AND ExEotmo.is 13 to 19. SCHOOL DISTRICT. See COMMON SCHOOLS. SCHOOLS. See COMMON SCHOOLS. SCIRE FACIAS. See JUDGMENTS AND EXECUTIONS, 14 15, 19. SEAL. See DEED, 3 to 8. SENTENCE. See INJUNCTION, 5. SERVICE BY MAIL. See BILLS or EXCHANGE AND PROMJSSO RT NOTES, 6. SERVICE ON CLERK OR DEPUTY. See PRACTICE, 38 to 40. SET-OFF. 1. If A. recover judgment against C., and the latter obtain judgment against A. and B., a net-off may bo ordered on the application of A., notwithstan- ding the objection that the parties to both records are not identical. Per COWE$, J. Graces v. Woodhury, 559 2. The order will be made though it ap- pear that the judgment in C.'s favor has been assigned to a third person, for a valuable consideration, and without 707 notice of the exutenee of the other judgment. Per COWBH, J. id 3. Otherwise, however, if the right of set-off did not ex* at the time uf OM assignment. id 4. Accordingly, A. having iounfsd judgment again* C., a suit was com- menced by A. and B. gainst C'., which was referred; and, a snort tine before the making of the referee's re- port, which found a large balance doe to C., but after the referee had bears! the matter and C. bad what the report would be, be i the demand to D. for a mderation, and judgment was duly perfected upon the report : HtU, that A. was not entitled to a set-off, OMB. much as no such right existed when the assignment was made ; the jodg- munt in C.'s favor having been perfec- ted afterwards. id Set Last. SETTING ASIDE PROCEED- INGS. See PRACTICE, 6, 7, 18 to 20, 32 to 34, 36,37. SEVERANCE. See BILL* or EXCHANGE AND PROMIS- SORY NOTES, 3, 4, 30. PRACTICE, 1, 2. SHERIFF. See ATTACHMENT. BOND, 3 to 7. DEBTORS, ABSCONDING, CONCEALED AND NON-RESIDENT, 5, 6. JUDGMENTS AND KXCCITIONB, 1, 4 to 9, 14, 15, 17 to 19. MORTGAGE or CHATTELS. REDEMPTION or LANDS. SHERIFFS BOND. St BOND, 3 to 7. 708 mr>EX - "SOLVENT" AND "INSOL- VENT." See PRINCIPAL AND SURETY, 6 to 13. SPECIAL VERDICT. A special verdict must find facts ; not the mere evidence of facts. Fuller v. Van Geesen, 171 STATUTE OF FRAUDS. See BILLS OP EXCHANGE AND PROMISSO- RY NOTES, 12. FRAUDS, STATUTE OF. GUARANTY. STATUTE OF LIMITATIONS. See ATTACHMENT. LIMITATIONS, STATUTE OF. PRACTICE, 4, 5. STATUTES. 1. Every statute in derogation of the rights of property, or that takes away the estate of a citizen, ought to be construed strictly. Per BRONSON, J. Sharp and others v. Speir, 76 8. The delegation of a right to take pri- vate property without the owner's con- sent, cannot be made out by doubtful inferences from powers relating to other subjects. Nothing short of ex- press words, or necessary implication, will answer the purpose. Per BRON- SON, J. id 3. This doctrine applies to a municipal corporation claiming the right, either by taxation or otherwise, to divest in- dividuals of their property without their consent. id 4. When lands are taken under a stat- ute authority, in derogation of the common law, every requisite of the statute having the semblance of bene- fit to the owner must be strictly com- plied with. Id. and Sharp v. John, eon, 92 5. The unqualified repeal of a repealing statute revives the original enactment. Per BRONSON, J. Gale v. Mead and others, 1U9 See BANKRUPT ACT. BANES AND BANKING ASSOCIATIONS. BILLS OF EXCHANGE AND PROMIS- SORY NOTES, 1 to 4, 14. 15, 1H to 2 1,23, 29, 30. COMMISSION TO TAKE TESTIMONY. CONSTITUTIONAL LAW. CORPORATION, 4 to 31. COSTS, 2, 4, 7 to 16. COURT MARTIAL. CRIMINAL LAW. FRAUDS, STATUTE OF. FRAUDULENT SALE OF CHATTELS. GUARANTY, 3. JUDGMENTS AND EXECUTIONS, 2, 3, 12, 17 to 19. LANDLORD AND TENANT, 5, 6. LIEN. LIMITATIONS, STATUTE OF. MORTGAGE OF LANDS, 4, 5. NON-IMPRISONMENT ACT. REDEMPTION OF LANDS. ROADS AND HIGHWAYS, 1, 2. USURY. WILL, 1,2. WITNESS, 7. STAYING PROCEEDINGS. See BOND, 1, 2. DEBTORS, ABSCONDING, CONCEALID AND NON-RESIDENT, 2, 4. INJUNCTION, 3 to 5. PRACTICE, 27. USURY, 19. VENUE, 8 to 10. STREETS. See CORPORATION, 17 to 30. SUBMISSION TO ARBITRA- TION. See ARBITRATION AND AWARD. SUICIDE. See INSURANCE, 1, 2. INDEX. 709 SUMMARY PROCEEDINGS. See ATTORNBT. COSTS, 8. NON.IMPRUONMENT ACT. SUMMONS IN REPLEVIN. See REPLEVIN, 1, 2. SUPERINTENDENTS OF THE POOR. 1. Superintendents of the poor arc not bound to audit the accounts of physi- cians and others for services rendered to county paupers by request of the overseers of the poor of the several towns ; and this, though the services were rendered in pursuance of orders for temporary relief. Ex parte Green $ Brown, 558 2. It is the duty of the overseers to ad- just such accounts and charge them in their bills against the county. id 3. The employment of a physician by the superintendents of the poor of a county does not supersede the right of the overseers of the several towns to employ other physicians to attend county paupers entitled to temporary relief- Semble; per Co WEN, J. id SUPERVISOR. See OFFICE AND OFFICER, 3. SURETY. See ASSCMPSIT, 3. BILLS OF EXCHANGE AND PROMISSO- RY NOTES, 8 to 13. BOND. DEBTORS, ABSCONDING, CONCEALED AND NON-RESIDENT, 1 to 4. FRAUDS, STATUTE OF. GUARANTY. PRINCIPAL AND SURETY. SURPRISE. See NEW TRIAL, 3 to 6. TAXATION OF COSTS. See Com. TAXES AND ASSESSMENTS. 1. Associations formed rrder tlic gene- ral banking law are c>rp< ration* ; and, like other moneyed or xiock eurpon- tions deriving an income or profit, .-... liable to taxation on ihcir capital. The People, ex ret. - county tj Ni- agara, -') 2. In ascertaining the mini t bo inserted in the assessment roll, no n ganl should be had cither to accinmilutioosor low. es of capital in the courw of the bust- ncas of the company, hut only to the amount of capital stork |>a'd in and secured to be paid, after deducting ex- pcnditures for real estate-, and with of the stock as the statute exempt* from taxation. :/ 3. To entitle a corporation to have iU name stricken from the assessment roll pursuant to I R. S. 416, 9, the am- davit presented to the board of super- visors must show that the company n not in the receipt of any profits 5. Otherwise as to the term profit*, which generally means the gain made upon any business or investment when both receipts and payment* are taken into the account. Per BROKSON, J. id 6. Rail-road companies are not taxed upon their capital, but upon the valu- ation of their real ettate in the seve- ral towns through which the road p**. 4 sad, temkU, they are liable to be so taxed, though not in the receipt of any profits or income. Per BRON SO.N.J. * 710 See COMMON SCHOOLS, 1, 2. CORPORATIONS, 4 to 30. STATUTES, 3. TENANT. See EJECTMENT, 5 to 7. LANDLORD AND TENANT. TENANT IN COMMON. See EJECTMENT, 2 to 4. JUDGMENTS AND EXECUTIONS. TOWNS AND COUNTIES. See CONSTITUTIONAL LAW, 12. OFFICE AND OFFICER, 2, 3. SUPERINTENDENTS OF THE POOR, TRANSLATION. See EVIDENCE, 14. TRESPASS. See BOND, 6. CONTRACT, 1. JUDGMENTS AND EXECUTION*, 4 to 9 TRESPASSER AB INITIO. See BOND, 6. TROVER. . To maintain trover against two joint bailees, a demand of and refusal by one is not sufficient ; a conversion by both must be shown. Mitchell v. Williams $ Roberts, 13 2. In the case of partners the rule is dif- ferent ; for each being the general agent of the other, a refusal by one is evidence of a conversion by both. Per COWEN, J. id INDEX. 3. W. & R. having hired of M. a numbe* of cows for a year, the former (W.) took possession of and kept them on his farm, several miles distant from R.'s residence. A few months after the hiring, the cows wore sold under an execution against W., issued upon a void justice's judgment. At the ex- piration of the year, the cows being still in W.'s possession, M. demanded them of him and he refused to deliver them up. A like demand was made of R. at his residence, who said " he would have nothing to do with the mat. ter," and refused to go and see W. on the subject. Held, in trover against W. & R., that whether enough had _ been shown to prove a conversion by R. was a question of fact to be sub- mitted to the jury ; and the circuit judge having directed them to find a conversion by both, a new trial was ordered. id 4. If R.'s refusal to act in the delivery of the cows proceeded from an honest desire to avoid a litigation which he supposed might arise out of the sale under the void judgment, he was not guilty of a conversion. Per COW- EN, J. id 5. Otherwise, if his refusal to act pro- ceeded from a design to countenance or aid W. in unlawfully withholding the cows from M., or to embarrass the latter in his endeavor to obtain posses- sion. Per COWEN, J. id 6. In general, the property being present, or under the undisputed control of the party of whom it is demanded, his mere neglect to deliver, without say- ing a word, or a refusal on his part to point out the property and act in the delivery, will be prima facie evidence of a conversion. Per COWEN, J. id 7. Where there is proof of a positive and unexcused refusal to deliver on de- mand made, the judge may advise the jury, as matter of law, to find a conversion. Per COWEN, J. id TWO-THIRD BILLS. See CONSTITUTIONAL LAW, 6 to 13. INDEX. u UNDER TENANT. See LANDLORD AND TENANT, 1 to 3. USAGE. See BAILMENT. EVIDENCE, 1 to 7. USURY. 1. Where a defendant interposes a plea or notice of usury, and verifies the same pursuant to the act of May 15th, 1837, (.Sess. L. of '37, p. 4W7, $ 2.) he may call and examine the plaintiff without obtaining an order of the court for that purpose. Miller v. Jf - Cagg $ Munger, 35 2. The only mode of procuring the at- tendance of a plaintiff for the purpose of examining him pursuant to the usu- ry law of 1837, ( Sess. L. of '37, p. 487, 2,) is by serving him with a subpos- na in due season, and paying or ten- dering him the fees of a witness. He is not bound to regard a mere notice to attend. Rapeiye $ Purdy v. Prince $ Prince, 119 3. S., a commission merchant in the city of New- York, agreed to accept drafts of N. to the amount of $20,000, taking a bond and mortgage from him for twice that KUIII as security ; and it wan further agreed that all produce shipped to New-York by N. should be sent to S. for sale on commission, that the latter should thus bo kept in funds to mcrt his acceptances as they became due, and that lie should be entitled to two and a half per cent, commission on all advances or acceptances met otherwise than with produce. N.'s drafts were afterwards accepted and paid by S. to an amount exceeding the value of the produce consigned ; and he charged N. with interest on all sums thus paid, together with two and a half per cent, commission on acceptances not met with produce. Held, in an action by S. to recover the sum advanced upon one of the drafts, that the transaction was not necessarily usurious ; especially as it appeared that UM charge far SKA was customary among . engaged in similar bosuns*. Cow. EN, J. dissented. S*yd*m W Mi*r 4. Various English and American cases relating to usurious loans of credit, 4tc. cited and commented on. Per Cow. EN,J. id 5. The bonmjide sale of one's credit by way of guaranty or endorsement, though for a compensation Htmf the lawful rate, of interest, is not usu. nous, if the transaction be unconnected with a loan between UM parties. Per NELSON, Ch. J. KetcHum v. Bmrhrr and others, j . \ 6. If connected with a loan, the trans. action will be deemed usurious, unless the excess beyond legal interest bo fairly ascribablo to trouble and ex. pense actually and bonafide incurred in and about the business of the loan. Per NELSON, Ch. J. id 7. In such cases, it is in general a qnsaiiun for the jury whether the excess, by whatever name the parties may bare called it, was really taken as a com- pensation for trouble and expense in- curred in good faith, or was mere usu- ry in disguise. Per NELSON, Ch. J. id 8. M., being desirous of raising money upon a note at four months, drawn by himself and endorsed for his accom- modation by B. and L., authorized a broker to buy an additional name or guaranty for the purpose of getting the note discounted. Application was ac- cordingly made to k., also a broker, who endorsed the note on receiving a commission of two and a half or three per cent, and it was then discounted at a bank. About the time it fell due, M. made. another note, rmmsysjssliif in amount, which, after being endors- ed, was discounted by K., ana the nro. ceeds applied in payment of UM nrst. The second note not being met at ma- turity, K. brought an action upon it against the maker and endorsers, which was referred, and the refsrse re. ported in K.'s faror. Htld, on motion to set aside the report, that the taking of the cosnaaiesinn by K. d*l aot sen- der the transaction mar a* and the motion was thsnfcs* 712 INDEX. 9. COWEN, J. dissented, holding that the transaction between K. and M., in re. spect to the first note, was not a sale in any sense, but amounted to a usu- rious loan of K.'s credit ; and the note in question having come to his hands by way of further security, or exten- sion of the loan, it was void. id 10. The case of Steele v. Whipple, (21 Wend. 103,) commented on and ex- plained, and Kentv. Lowen, (1 Camp. 177,) overruled. id 11. Various other English and American cases, relating to indirect usurious loans, cited and and reviewed. Per NELSON, Ch. J. and COWEN, J. id 12. C. covenanted to assign to a bank, bonds and mortgages on real estate to the amount of $13,000, payable in five years, with interest semi-annually, and to guaranty the payment of them ; in consideration whereof, the bank agreed to transfer to C. certain stock to the amount of $6500 at its nominal value, but which was then twenty- five per cent, below par, and to pay him the balance in money. After- wards, the bonds and mortgages not having been assigned, the bank trans- ferred the stock and paid the money on receiving two notes for $6500 each, agreeing to take the bonds and mort- gages in payment, if delivered before the notes became due. Held, in an action upon one of the notes, that the transaction was nsurious ; and a ver- dict finding it otherwise was set aside. Seymour and others, ex'rs 4 another, *>-> 19. An affidavit to change vena*tatai that without the testimony of oadi INDEX, and every of the witnesses the defen- dant could not safely proceed to the trial, without adding the words, of this cause ; yet, held sufficient. Por- ter v. Mann, 540 VERDICT. See COSTS, 4, 5. SPECIAL VKEDICT. VERIFYING PLEA. See PRACTICE, 28. VESSELS. See MORTGAGE OF VESSELS. w WAIVER. See ADVERSE POSSESSION, 2. DEBTORS, ABSCONDING, CONCEALED AND NON-RESIDENT, 8. EKROR, 1,2. WITNESS, 2, 3. WARRANT. See COMMON SCHOOLS, 2. ""? COURT MARTIAL. DEBTORS, ABSCONDING, CONCEALED AND NON-RESIDENT, 5 to 11. INJUNCTION, 3, 4. WARRANT OF ATTORNEY. See JUDGMENTS AND EXECUTIONS, 10, 11. WARRANTY. See DAMAGES. WARRANTY, COVENANT OF. See COVF.NANT, 11 to 16. WATER. Set RIVERS AND CREEKS- 1. Where a testator in 1825 executed a will devising certain real estate to his son, and died in Io40 ; held, that though the eon died in 1833, the es- tate vested in his children, and not in the heirs at law of the testator. Bishop and others v. Bishop, 138 2. Otherwise, if the testator had surviv- ed the devisee, and died before the re- vised statutes took effect. id 3. Where land is directed by a will to be sold and converted into money though far a particular and specified purpose, and not absolutely or " out and out," the estate is regarded in equity, to the extent and for the pur. pose designated, as money, and not land. Per NELSON, Ch. J. Bogert, appellant, v. Hertell and others, re- spondents, 492 4. If the purpose for which the conver- sion was directed fail altogether, or in part, the entire estate in the one case, and the part in the other, is regarded as undisposed of by the will, and so goes to the heir at law. Per NEL- SON, Ch. J. id 5. In the case of a partial failure, how- ever, if the purposes of the will still re- quire that the conversion should take place, the part in respect to which the failure has occurred goes to. the heir as money, and not as land. Per NELSON, Ch. J. id 6. After a sale and conversion, no failure of the purposes of the trust having occurred, the executors take the entire proceeds as a part of the personal assets of the estate. Per NELSON, Ch. J. and BOCKEE, senator. id 1 Various cases relating to the doctrine of equitable conversion, cited and commented on. Per NELSON, Ch. J. id S. Where a will contains a power to sell land for the purpose of distribution, of paying debts &c., without naming the donee of the power, it will vest in the executor by implication. Per NELSON, Ch. J. id See EXECUTORS AND ADMINISTRATORS, 4, INDEX. WITNESS. 1. A person attending before a court or officer a not entitled to a witness' privilege from arrest, unite he attend at a witness ; and this, though he be worn and examined after the arrest Cole v. SfCUUan, 59 '- osttion to be read. ^ 7. Where, in an action upon a pronue- ory note by one to whom it had becsj transferred, the payee was catted to prove that it was given upon a MB. rious consideration ; keld, that be was not bound to testify, though the not* was made and transferred prior to the act of May 15th, 1-37. Ktmp**U 4- Eggletton v. Burnt, 468 8. In actions ex contracfu, a separate verdict in favor of one of several de. fendants, though grounded on his d*v charge as a bankrupt, will not render him competent to testify for his co-de- fendants. Mill* v. Let and otktrt, 549 Set BILLS or EXCHANGE AMD PROWS. soar NOTES, 1, 2. CHAKCERT, 2 to 4. CoMMISmoN TO TAKE TCVTUIOXT. COSTS, 13 to 15. EVIDENCE, 13 to 15. FRAUDULENT SALE or CHATTELS. LIEN, 4 to 6. PRACTICE AT THE TRIAL, 1. USURY, 1,2, 17 to 19. VENUE, 18. WRIT OF ERROR. See COSTS, 9, 19. ERROR. PRACTICE, 4, 5. BWD OF Voiron roxr. University of California SOUTHERN REGIONAL LIBRARY FACILITY 405 Hilgard Avenue, Los Angeles, CA 90024-1388 Return this material to the library from which it was borrowed.