UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY KEPOETS OF Ca0c0 in Cam anti trun;e;it which would transfer their interest in the stock to the defendant ; it being no part of their agreement that they should procure a transfer of the stock upon the books of th3 company. 2. That the instrument executed by the plaintiffs would enable the defendant, if he desired it, to have the transfer made, upon the books of the corporation, upon complying with its by-laws. And that it was for him. and not the plain- tiffs, to pay the residue of the 30 per cent required before a transfer upon the books could be obtained. 3. That having an instrument which would authorize him to procure such transfer to be made, upon making the requisite payment, it did not lie with the defendant to object that the transfer had not been actually made. 4. That the amount which the plaintiffs had been compelled to pay, upon the judgment against them, as the consequence of the defendant's breach of his agreement, was the proper measure of the plaintiffs' recovery for such breach. A PPEAL from a judgment rendered at the circuit. The J\. action was tried at the Rensselaer circuit,, in February, 1853, before Mr. Justice PARKKII. without a. jury. Upon the trial, the plaintiffs gave in evidence an agreement between them and the defendant, bearing date the 18th of Mny, 1849, whereby the plaintiffs agreed to subscribe for and become re- sponsible to take, fifty shares of the capital stock of the Troy and Boston Rail Road Company, which would be of the estimated value of $5000, and for which they would, by their subscrip- tion, become responsible to pay that amount, and they agreed to pay $500 upon the subscription. They further agreed, after having paid the $500 upon their subscription, to assign and transfer to the defendant by a proper instrument of conveyance all the said stock, .or the interest they should have acquired therein, and the defendant, in consideration thereof, agreed with ALBANY DECEMBER, 1854. 23 Orr v. Bigelow. the plaintiffs, that he would, after they should have paid the sum of $500, and upon their executing and delivering to him an assignment or transfer of all said stock, execute and deliv- er, to the plaintiffs, a covenant to pay the remainder of the amount which would be due upon the subscription, as the same should become due and payable, and indemnify and save harm- less the plaintiffs, of, from and against all claims and demands, actions and rights of action, arising from or made in conse- quence of their liability incurred by becoming stockholders in the said company. The plaintiffs also proved that, on the 13th of August, 1850, they executed and tendered to the defendant an assigment of the fifty shares of the capital stock of the Troy and Boston Rail Road Company subscribed for by them in pursuance of the agreement of the 18th of May, 1849, subject to the calls thereon made and to be made, to the amount of $4500, and also a power of attorney to transfer the stock on the books of the company, pursuant to the by-laws of the company. It also appeared that, by the by-laws of the company, it was declared that no stock should be transferable on the books of trie cor- poration until thirty per cent on each share had been paid in, unless by consent of the board of directors | and that the plain- tiffs had made application for such consent and it had been refused. The defendant refused to accept the assignment when tendered to him. on the ground that it was not a compliance with the terms of the agreement. The company, having, sued the plaintiffs to recover the bal- ance of the subscription, obtained a judgment against them, in June, 1851, for $4690.85, which judgment the plaintiffs paid. At the thne the assignment of the stock was tendered by the plaintiffs to the defendant, and at the time of the trial, the stock was worth from 40 to 43 cents yi the dollar. The defendant insisted, upon the trial, 1. That the agreement of the 18th of May, 1849, contemplated, and that he had a right to exact, such a transfer of the stock as would invest the defendant with all the rights of the plaintiffs to control the stock and become a stockholder of the company ; that the plain- 24 CASES IN THE SUPREME COURT. Orr v. Bigolow. tiffs covenanted for such transfer, and the refusal of the direct- ors to permit such transfer, was no excuse for the plaintiffs fail- ing to perform their covenant ; and that the assignment tender- ed did not invest the defendant with the rights of the plaintiffs as stockholders in the Jroy and Boston Rail Road Company '2. That if the plaintiffs were entitled to recover at all, they' were entitled to recover only the difference betAveen the amount paid by them, with interest, and the value of the stock. The court decided that the plaintiffs were entitled to recover the amount of the judgment recovered against them, and the inter est thereon, and that upon being paid such amount they should transfer the stock to the defendant. Judgment was perfected upon this decision, on the 18th of October, 1853, for $5617.59. and the defendant appealed to the general term. D. J3uel, jun. for the plaintiffs. A. B. Olin, for the defendant. By 'the Court, HARRIS, J. The plaintiffs agreed to subscribe for the stock in question and pay ten per cent thereon, and then to assign and transfer it to the defendant by a proper instru- ment of conveyance. The instrument tendered to the defend- ant on the 13th of August, was, in the language of the con- tract, a proper instrument of conveyance. Its effect was, to " assign and transfer to the defendant all the interest which the plaintiffs had acquired in the stock by their subscription and the payment of $500.'' This was all they had stipulated to do. It was no part of their engagement that they should procure a tranfer of the stock upon the books of the company* It was enough that they had executed an instrument which would transfer their interest to the defendant. That instrument would enable the defendant, if he desired it, to have the trans- fer made upon the books of the corporation, upon complying with its by-laws. It was for him, and not the plaintiffs, to p.-iy the residue of the 30 per cent required before a transfer upon the books could be obtained. Having an instrument ALBANY DECEMBER, 1854. 25 Orr v. Bigelow. which would authorize him to procure such transfer to be made, upon making the requisite payment, it does not He with him to object that the transfer had not been actually made. I think, too, that the proper measure of damages was adopt- ed at the circuit. The plaintiffs had subscribed for the stock under their agreement with the defendant^ They had paid the ten per cent they had stipulated to pay, and had executed a suf ficient assignment of the stock and tendered it to the defend- ant. The defendant had refused to accept the assignment, with- out sufficient cause. This tender and refusal must be regarded as equivalent to a performance, on the part of the plaintiff's, of their agreement to assign the stock. It then became the duty of the defendant, the plaintiffs having done all that was required of them, to pay the remaining ninety per cent upon the stock and to protect the plaintiff's against further liability. His omission to discharge this duty has subjected the plaintiff's to the payment of the judgment recovered against them for the balance of the subscription price of the stock. The amount which they have thus been compelled to pay, as the consequence of the' defendant's breach of his agreement, constitutes the proper measure of the plaintiffs' recovery for such breach. The situation of the defendant is not very unlike that of one who, having employed a mechanic to construct an article, after- wards refuses to accept it. The tender of the article and the refusal to accept, in reference. to an action by the mechanic for the price of the article, are equivalent to a delivery, and the mechanic, though he still have the property in his hands, may recover of his employer the full price. (Bement v. Smith, 15 Wend. 493. Sedg. on Dam. 282.) The plaintiff's had by their subscription and the payment of $500, brought the stock into existence. They had done this, too, upon the employment of the defendant. The defendant was bound to accept it, when tendered, and to pay for it according to the terms of the con- tract. The proper assignment was tendered and refused. This furnished a sufficient foundation for an action to recover the con- tract price, which was ninety per cent, payable as the same should become due and payable to the company. The plaintiffs VOL. XX. 4 26 CASES IN THE SUPKEME COURT. Groat v. Rees. were under no obligation either to sell the stock and credit the defendant with, the proceeds, or to become the purchasers of it tnemselves. They held it for the defendant, and their only duty in respect to it was, to assign it to him upon request. The provision in the judgment that upon the payment or collection of the amount recovered by the plaintiffs they should transfer the stock to the defendant, may be useless, but it is also harmless. It merely declares what would have been the duty of the plaintiffs without any such direction. At any rate, being a provision for the benefit of the defendant, it is not for him to complain. He is not obliged to enforce it. The judg- ment should therefore be affirmed. [ALBANY GENERAL TERM, December 4, 1854. Wright, Harris and Watson Justices.] GROAT vs. REES. Before a chattel mortgage can be upheld as a valid security, where there has been no actual and continued change of possession, the party asserting its validity must establish, affirmatively, two propositions ; first, that the transaction was bonafide ; and, secondly, that there was no intention to defraud creditors or purchasers. It is not enough to show that the mortgage was given for a good and valid con- sideration. It is equally necessary to prove the absence of a fraudulent intent But, where it is admitted that the mortgage was given for a good and valid con- sideration, it is proper to submit the question to the jury whether it was no>- also executed without any intent to hinder or delay creditors. And if there is no evidence that the mortgagor was indebted to any other persor than the mortgagee, and there is nothing in the case to show that the mor<> gage was executed for any other purpose than to secure a bonajide debt, tin jury will be justified in finding in favor of the validity of the mortgage. A PPEAL from a judgment of the Schenectady county court IA. The action was brought before a justice of the peace. The plaintiff claimed to recover the value of a horse, which had ALBANY DECEMBER, 1854. 27 Groat v. Rees. been wrongfully taken from him by the defendant. On the trial it appeared that the horse had been owned by one Sittcrly, who had, on the 9th of August, 1852, mortgaged him to the plaintiff to secure forty dollars, with interest, payable in thirty days, and that the mortgage had been filed in the proper office. Sitterly retained the possession of the horse until some time in the winter or spring after the execution of the mortgage, when he sold him, and, after passing through the hands of several owners, he came into the possession of the defendant. It was admitted that the mortgage was given for a good and valid con- sideration. The justice rendered a judgment for the plaintiff for $18.88 damages and costs. From this judgment the defend- ant appealed to the county court, and that court reversod the judgment. The plaintiff appealed to this court. Thomas Smith, for the plaintiff. C. B. Cochrane, for the defendant. By the Court, HARRIS. J. The plaintiff claimed the horse in question as mortgagee. The defendant claimed title as a subsequent purchaser in good faith. Upon the execution of the mortgage, there was no change of possession. The mortgagor continued in possession of the horse until it was sold. Upon this state of facts the law declared the mortgage void as against the defendant, unless upon the trial the plain.tiff could make it appear " that the mortgage was made in good faith, and without any intent to defraud the creditors of the mortgagor or subse- quent purchasers in good faith." (2 R. S. 136, 5.) Before the mortgage could be upheld as a valid security, the plaintiff was required to- establish, affirmatively, two propositions : first, that the transaction between the parties to the mortgage was bona fide, and then, that there was no intention to defraud cred- itors or purchasers. It was not enough to show that the mort- gage was given for "a good and valid consideration." It was equally necessary to prove the absence of a fraudulent intent. It has been well said, that these are distinct and independent 28 CASES IN THE SUPREME COURT. Groat v. Rees. facts, and that the proof of the one in no degree alters or less- ens the obligation of proving the other. (Randall \. Parker, 3 Sandf. S: C. JR. 69.) But while it is necessary to prove both facts, in order to up- hold the mortgage, the same evidence which establishes the one may also be pertinent with reference to the other. I cannot say that in this case the admitted fact that the mortgage was executed upon a good and valid consideration did not tend to prove the absence of a fraudulent intent. I think it did. I should not feel at liberty to withhold such testimony from the consideration of a jury. I am aware that in Randall v. Parker, above cited, where Mr. Justice Duer has discussed the subject with admirable abil aty and clearness, the opinion is expressed that even where the evidence is sufficient to show good faith in the transaction, the court might direct a verdict for want of evidence to rebut the presumption of fraudulent intent. The question was not before the court for judgment, and I am persuaded that, upon consid- eration, the position would not be insisted on, even by that en- lightened judge himself. Though the statute requires the party who asserts the validity_of a sale or mortgage unaccompanied by a change of possession, to prove both the good faith of the transaction and the absence of any fraudulent intent, yet it is not quite easy to conceive of a case where there has been en- tire good faith between the parties, which is, nevertheless, taint- ed with fraud. At the least, the evidence of good faith furnishes some' proof to be submitted to a jury, upon the question of fraudulent intent. In some cases, as where a mortgage is exe- cuted to secure a loan of money made at the time, and where the transaction is unattended with any circumstances of sus- picion, the same evidence which proves good faith might also be satisfactory upon the question of fraudulent intent. . In the case under consideration, when the plaintiff proposed to give evidence to show the consideration of the mortgage, the defend- ant waived the necessity of such evidence by admitting that the mortgage was given for a good and valid consideration. In effect, it was admitted that the mortgage was given in good ALBANY DECEMBER. 1854. 29 v Cutwater v. Nelson. faith. Can it be said that such an admission has no bearing upon the question of fraudulent intent? or, rather, was not the jury who tried the case before the justice, justified in finding, from this very fact, that the mortgage was also executed with- out any intent to hinder or delay creditors ? There was no evidence that the mortgagor was indebted to any other per- son than the plaintiff. There is nothing in the case to show that the mortgage was executed for any other purpose than to secure a bo na fide debt. Under these circumstances, I arn of opinion, not only that the question was properly submitted to the jury, but that the verdict is sustained by the evidence. The judgment of the county court should, therefore, be reversed, and that of the justice affirmed. [ALBANY GENERAL TERM, Decembor 4, 1854. Wright, Harris and Wat- son, Justices.] OUTWATER, plaintiff in error, vs. NELSON, defendant in error In an action upon a memorandum acknowledging the receipt of a quantity of corn in store, " on freight," the defendant offered to prove that it was the cus- tom, at the landing where the corn was delivered, and had been for forty years, to pay for grain left on freight %fter the owner had ordered it to be freighted, and not before ; and that this custom was known to the plaintiff, and that he himself had been in the habit, for many years, of leaving grain at that place, te be freighted, upon the same terms. Held that the evidence should have been received ; and for its rejection the judgment was reversed. Held also, that the plaintiff could not recover, upon such memorandum, without proving that the defendant had shipped the corn, or that he had been called upon for payment. ERROR to the Dutchess common pleas. The action was com- menced before a justice of the peace, in April, 1843. The plaintiff claimed to recover upon two receipts, one of which was nS follows : " February 22. 1839. Received in store, Red Hook Landing, of Samuel Nelson, by self, 50ff bus. corn on freight CASES IX THE SUPREME COURT. Cutwater v. Nelson. James Cutwater." The other receipt was in the same terms, and was for 27 5 " 6 bushels corn. The declaration alleged that in consideration that the plaintiff, Nelson, had sent and con- signed to the defendant, Out water, corn, &c. the defendant un- dertook and promised the plaintiff to sell the same and render a true account of the sales within a reasonable time; that the de- fendant received and had sold the grain and had not paid for it. The defense was that the corn was consigned to the defendant as a freighter, to dispose of when the plaintiff should direct and order, and that the plaintiff never ordered the grain sold. Upon the trial before the justice, the plaintiff recovered a judgment for $45.74 besides costs. The defendant appealed to the common pleas. Upon the trial in that court, the defendant offered to prove that it was the custom, at the landing of the defendant, and had beeji for forty years, and was known to the plaintiff, not to call for pay for grain left on freight until it is ordered to be freighted; and that it was and had been the custom, and known to the plaintiff, not to pay for^rain until it had been ordered to be freighted. The evidence was objected to. and excluded. The defendant's counsel excepted. The counsel for the defendant also offered to prove that the plaintiff had for many years been in the habit of leaving corn on freight at the defendant's landing and receiving pay for it after he had ordered it freighted, and not before. This evidence was also objected to, and excluded, a^d the defendant's counsel excepted. The testimony being closed, the court charged the jury that the evidence was sufficient to entitle the plaintiff to recover. The counsel for the defendant excepted to the charge. Various other questions were raised by the bill of exceptions, but as they are not noticed in the opinion of the court, it is unnecessary to state them here. The jury rendered a verdict for the plaintiff, for $36.75, for which amount, with costs, judgment was perfect ed in February, 1844, and the defendant brought error to this court. ALBANY DECEMBER, 1854. 3] Cutwater v. Nelson. W Eno, for the plaintiff in error. //. Hogeboom, for the defendant in error. By the Court. HARRIS, J. Every contract may reasonably be presumed to be made with reference to the existing state of things. Hence it is said, that " the usage or habit of, trade or the conduct of an individual, which is known to the person who deals with him, may be given in evidence, to prove what was the contract between them." (2 Greenl. Ev. 251.) It ap- pears from the receipts given in evidence that the corn deliv- ered by Nelson to Cutwater was not sold, but was delivered "on freight." What did the parties intend by this? It has already been held, in reference to these very words, that evidence may be given to explain their meaning. (Dawson v. Kittle, 4 Hill, 107.) It is obvious that the party receiving the corn did not become the absolute purchaser. What then was the relation in which he stood to the owner? When and how was he to become liable to pay for the corn ? The defendant in the court below of- fered evidence to explain this. He offered to show that for forty years it had been the practice at the landing where this corn was delivered, to pay for grain left on freight after the owner had or- dered it to be freighted, and not before ; and that this practice was known to the plaintiff. He went further, and offered to show that the plaintiff himself had been in the habit for many years of leaving grain at the same place to. be freighted, upon the same terms. If these facts had been proved, no one could have hesitated to say that when the parties used the words " on freight/' in their contract, they both understood that it was left to be disposed of according to the usage of the place and of the parties themselves. Such a custom as that contained in the offer is convenient and reasonable. It enables the producer to select his own time to dispose of his grain, and thus secure the chance of an increased price ; while the freighter may als"o, by freighting and selling before he is ordered, avail himself of the chance of a reduced price. The court also erred in charging the jury that the evidence 32 CASES IX THE SUPREME COURT. v. Daily. was sufficient to entitle the plaintiff to recover. It was, in effect, directing a verdict for the plaintiff. It could not be pretended that the defendant was liable, unless he had shipped the corn, nor unless he had been called upon for payment. These, at least, were questions of fact which should have been submitted to the jury, even as the law was viewed by the court below. Other questions arose upon the trial, upon some of which I am inclined to think the court erred. But, for the errors already noticed, the judgment must be reversed and a venire de twvo awarded to the Dutchess county court ; with costs to abide the event. [ALBANY GENERAL TERM, December 4, 1854. Parker, Wright and Harris, Justices.] ao 32 ETZ vs. DAILY. 36 158 65a 151 10l a t83 Where an owner of land conveys the same to another, excepting the portions included in the highway, he may maintain an action of ejectment against the grantee, for encroachments upon the highway, or for an exclusive occupation of it, by the latter. APPEAL by the plaintiff, from a judgment entered upon the report of a referee. The action was ejectment, brought for the recovery of two pieces of land lying in Preble, Portland county. On the trial before the referee it appeared in evidence that on the llth day of April, 1829, William Etz and Elizabeth his wife conveyed, by deed with warranty in fee, to Christian Etz (the plaintiff) and John Etz, a farm in Preble. which in- cluded the premises in question. On the 23d day of April, John Etz and his wife conveyed the same premises to the plaintiff; both of said deeds being properly acknowledged, but no,t record- ed. On the 23d of January, 1838, Christian Etz and wife con- veyed the same premises to the defendant, "excepting and reserving therefrom all of the land included in the above boun- daries which is embraced in the highways," for which land, in- MADISOX SEPTEMBER, 1854. 33 Etz v. Daily. eluded in the highways, this action was brought. From these facts the referee found as matter of law, that the plaintiff had a title in fee to the premises in question. He further found that since the defendant purchased the farm, he had constructed side-walks and planted shade trees along the side of the road adjoining his premises ; that he had also on several occasions unloaded wood and lumber, and thrown the manure from his sta- bles into the road adjoining his premises ; that he had also on different occasions, and until within a short time prior to the commencement of this suit, claimed to own said road, and denied the plaintiff's title thereto. That the'premises claimed were a public highway in the town of Preble, and had been used as such for a long period, and over forty years, and were still an open and traveled road. That the said road was so used when the defendant purchased of the plaintiff; and that the defendant had at no time moved his fences into or upon said road beyond where they were located by the plaintiff. The referee found, as matter of law, that the plaintiff was not entitled to recover possession of the premises claimed, or any part thereof; and he-- directed judgment to be entered for the defendant, with costs. P. McDonald, for the appellant. Sedgwick <$ Outwater, for the respondent. By the Court, GRAY, J. The facts in this case are, in short, these : The plaintiff conveyed to the defendant his farm in Preble, Cortland county, excepting therefrom the land em- braced in its boundaries which at the date of the deed was in- cluded in the highway. Since the conveyance the defendant has dug up the road and run a water pipe across it ; set out fruit and shade trees, and piled stone, lumber and manure with- in its boundaries, and used a portion of it for farming purposes, and claims, as against the plaintiff, the right to appropriate the highway to the uses described. The simple and only question presented is, whether ejectment can be maintained by the plain- YOL. XX. 5 31 CASES IN THE SUPREME CO CRT. Etz v. Daily. tiff for the recovery from the defendant of the premises thus used and occupied by him. That the freehold of the land in question is in the plaintiff, no one denies ; but whether eject- ment can be maintained by the owner of the freehold, while the highway exists, is a question upon which there is a diversity of opinion among judges. Goodtitle v. Acker, (1 Bur. 133, 145 7 ) and 3 Kent's Com. 433, are authorities in favor of the right to maintain the action. And although the precise question here presented, has not been adjudged, in this state, it has been judi- cially asserted in several cases ; by Platt, J., in Jackson v. Hathaway, (15 John. 453 ;) by Savage, Ch. J.. in Saunders v. Wilson, (15 Wend. 339 ;) by Cowen, J., in Pearsall v. Post, (20 id. 126 ;) by Gridley, J.. in Bur dick v. Goit, (3 Barb. S. C. R. 468 ;) and by Hand, J., in the case of the Northern Turnpike Company v. Smith. (15 id. 355.) The only opinion against this doctrine, emanating from the bench in this state, is to be found in Adams v. The Saratoga and Wash. R. R. Co. (11 Barb. 414, 453-5.) The learned judge in that case follows the opinion of a distinguished judge in the case of The City of Cincinnati v. The Lessee of White, (6 Peters' U. S. R. 431, 441-2.) It is worthy of remark, that in each of these cases the opinions, although elaborate, were extra judicial. The only question in the case last referred to was, whether the land sought to be recovered had been dedicated to public use. The same question arose in the case of Adams v. The Saratoga and Wash. R. R. Co.. and there the question was whether it had been used for purposes other than that for which it was dedicated. There had been no appropriation, in either case, to private use, and hence the point here made was not up, and so one of the learned members of the court, upon being referred to the case, has since decided. (Northern Turnpike Co. v. Smith, 15 Barb. 355. 358.) Thus it will be seen that these opinions are of no greater weight, as authority, than those hold- ing to the contrary doctrine, before referred to, and that in reality nothing has been decided in this state that tends in the slightest degree to impair the influence of opinions emanating from the highest legal intelligence, in favor of the right to ALBANY MAY, 1855 Gillespie v. Rosekrants, maintain this suit. The cases referred to in Srnifft's Leading 1 Cases, 183, 184. show that wherever the question has arisen, except in Connecticut, the right to maintain ejectment has been established. The only objection ever urged against it i.s, that exclusive possession of the premises in dispute cannot be given to the plaintiff. But let this objection prevail and any erection short of a nuisance may be made on the road side in front of the owner's dornicil, .and the owner would be without complete redress, and the lawless occupant would hold it until the use of the whole road as a highway should be discontinued, unless the public authorities should see fit to remove him. This objection, it seems to me, is completely disposed of by Lord Mansfield, who held that the sheriff should deliver the possession of the defendant to the plaintiff, subject to the public easement. The conclusion to which I have arrived is, that the judgment enter- ed on the report of the referee should be reversed, and a new trial ordered. Judgment accordingly. [MADISON GENERAL TERM, September 12, 1854. Gray, Mason and Sliank- land, Justices.] GILLESPIE vs. ROSEKRANTS. The 110th section of the code which requires that a promise, to take a case out of the operation of the statute of limitations, shall he in writing, is not applica- ble to cases where the right of action had accrued before the adoption of the code. A PPEAJL from a judgment .of the Ulster county court. The J\. action was brought before a justice of the peace. The plaintiff claimed to recover upon a promissory note for $31.52. dated July ], 1845, made by the defendant and payable to the plaintiff, on demand. The action was commenced on the 23d of July, 1851. The defendant, by his answer, insisted that the note was barred by the statute of limitations. Upon the trial. 36 CASES IN THE SUPREME COURT. Gillespie v. Rosekrants. the plaintiff proved that, on the 13th of June, 1851, an agent who held the note for collection, called on the defendant to ob- tain payment, or a new note, and that the defendant then promised that he would pay one half of the note and the interest thereon on the 20th of June, and arrange the other half by giving a new note, or in some other way. The justice rendered judg- ment in favor of the plaintiff for $44.94, the amount of the note and interest, and $2.78 costs, which judgment was reversed by the county court upon appeal. The plaintiff appealed to this court. L. Tremain, for the plaintiff. E. Cooke, for the defendant. By the Court, HARRIS J. The plaintiff's cause of action was undoubtedly barred unless the promise made by the de- fendant on the 13th of June, was sufficient to take it out of the statute. It is not denied that such would be the effect of that promise, were it not for the 110th section of the code, which requires that a promise, to take a case out of the operation of the statute of limitations, must be " contained in some writing signed by the party to be charged thereby." The court below held that this provision of the code was applicable to the case, and, upon that ground, reversed the judgment of the justice. In making this decision, it is obvious that the provision in the 73d section, which declares that the title of the code in which the 110th section is found, shall not extend to cases where the right of action had already accrued, was overlooked. It is expressly provided in that section, that the statutes in force at the time the code Avas adopted, shall be applicable to such casgs. This was such a case. The note having been made in July, 1845, and being payable on demand, a right of action had accrued, and was existing at the time the code took effect as a law. The provisions of the code, therefore, did not affect the case. The case of Wadsworth v. Thomas, (7 Barb. 445,) has no application to the question under consideration. That case arose SCHENECTADY MAY, 1855. 37 Milliman v. Neher. under the code of 1848. The 90th section of that act, which is the 110th section of the present code, merely provided that in cases where the time for commencing an action arising on con- tract should have expired, the cause of action should not be deemed to have been revived by an ackowledgment or new prom- ise unless the same should be in writing (fee. The provision had no reference to a case where the promise relied upon to take the case out of the statute of limitations had been made before the debt had become barred. But the 110th section, as amended in 1849, was made applicable to every case of ac- knowledgment or new promise, except in cases where a right of action was in existence at the time the code took effect as a law. The case in hand is within that exception. The decision of the county court was, therefore, erroneous, and should be reversed, and the judgment of the justice affirmed. [ALBANY GENERAL TERM, May 7, 1855. Parker, Wright and Harrit, luslices.J MILLIMAN vs. NEHER. A chattel mortgage can only operate upon property in actual existence at the time of its execution. It cannot be given on the future products of land. I 407 Thus where a lease was executed, in March, 1852, between the plaintiff and M., 63 323 of a farm, for one year from the 1st of April then next, at a specified rent, and g7h 93 it was stipulated that the plaintiff should have a " lien upon the crops, as secu- ^ ^23 rity for said rent," and that M. should " market the same ;" Held that a person 83a 376 who had purchased from M. corn, raised upon the farm, with knowledge of the plaintiff's claim to a lien thereon, could hold the same, as against the plaintiff. THIS action was commenced before a justice of the peace, to recover the value of a quantity of corn. On the trial the plaintiff read in evidence a lease dated March 25, 1852, executed by the plaintiff and one William Montgomery, by which lease the plaintiff leased to Montgomery a farm, for one year from April 1st then next, at an annual rent of $325. The last clause 38 CASES IN THE SUPKEME COUKT. Milliman v. Neher. of the lease was as follows : " And said Milliman shal. havt. the lien upon the crops as security for said rent, said Mont- gomery to market the same" The plaintiff then proved that in the fall or winter of 1852, Montgomery sold to the defendant about 164 bushels of corn in the ear, for which the defendant gave his promissory note, and that the defendant knew of the plaintiff's claim, when he made the purchase. Other facts were proved on the trial, but none having any important bearing upon the questions considered in the case. The justice gave judgment for the plaintiff, which the county court reversed ; whereupon an appeal was taken to this court. C. R. Ingalls, for the appellant. J. W. Crane and //. W. Merrill, for the respondent. By the Court, BOCKES, J. The lease purports to have been executed and delivered on the 24th of March, and the term was to commence on the 1st day of April following. When the supposed lien was created, therefore, Montgomery had only a lease of the farm in presenti, to commence on a future day. The crops then had no existence, nor was it certain that they ever would exist. In Barnard v. Eaton, (2 Ctish. 295,) it was decided that a mortgage could not apply to goods not in existence, or not ca- pable of being identified at the time of its execution ; and Jus- tice Shaw, in giving the opinion of the court remarked, that the mortgage was an executed contract ; a present transfer of title, although conditional and defeasible : it could therefore only bind and affect property existing and capable of being identified at the time it was made. See also Jones v. Richardson, (10 Melt.. 481 ;) Winslow \. Merchants? Ins. Co., (4 ?rf. 307;) Codmaj, v. Freeman. (3 Cush. 306.) In the Bank of Lansingburgh v. Crary, (1 Barb. *S f . C. R. 542. 551,) Justice Paige intimates the opinion that a chattel mortgage can only operate on prop- erty in actual existence at the time of its execution ; and cannot be given on the future products of real estate. The same learned SCHENECTADY MAY, 1855. 39 Milliman v. Neher. judge afterwards considered the question in Otis v. Sill, (8 Barb. 102 ;) and it was there held that a grant or mortgage of property not then in existence was void in law. The case of -Muuscll v. Carew, (2 Cash. 50,) is directly in point. Munsell leased the half of his farm to Bucldand, for a year, at the rent of $60, and it was provided in the lease that in case of refusal or neglect to pay the rent Munsell was to have all the crops which might or should grow on the farm, to dispose of as he should see fit. Carew, well knowing the con- tents of the lease, took title to some of the crops from Buckland, and refused to deliver the same to Munsell, on demand. In an action of trover by Munsell . against Carew, it was held that until delivery of the crops to Munsell, or until possession thereof was taken by him, they remained the property of Buckland, and might be sold by him or attached by creditors. We are referred to Shuart v. Taylor, (7 How. Pr. R. 251.) as a case favorable to the plaintiff's recovery. In that case one Cogswell executed a mortgage to Clark of his right, title and interest in and to about thirty acres of fallow or wheat. Hia interest was the use of the fallow then in his possession, with the right to sow it to wheat, on shares ; and part of the fallow was then sowed. Justice Strong held that the mortgage was operative on the property described in it, and remarked that " as the mortgage was upon the interest of Cogswell in the fal- low, I am of the opinion it bound his right to the use of the land, and the wheat which was raised in the exercise of that right." And he further stated that "this was not the case of a mortgage of property which the mortgagor did not own at the time, but one of a mortgage upon an interest in property which then belonged to the mortgagor." It cannot be pretended, in the case under consideration, that Montgomery mortgaged, or intended to mortgage. " his right to the use of the land ;" hence, the wide difference between this case and the one cited. Trees, grass, and corn growing and standing upon the ground, fruit upon trees, and wool upon the sheep's back, may be mortgaged. (Shep. Touch.. 241, title Grant.} So also, a man may grant all the wool of his sheep 40 CASES IN THE SUPKEME COURT. Milliman v. Ncher. for seven years, but this grant is upheld on the ground thai tie wool is deemed to be continually growing ; hence the grantor has at the time, if not an actual, a potential ownership and pos- session of the property granted. There arc cases in which sales and conveyances of future freight or earnings of ships, and of grants of estates in expectancy, have been sustained ; but those were cases in equity. This is an action at law ; and the plaintiff's right to recover depends upon his ability to show a legal title to the corn. To support his action the clause in the lease must amount to a sale, a mortgage or a pledge of the crops. They were not pledged, because they were never delivered. Delivery is essential to constitute a pledge. (Brownell v. Hawkins, 4 Barb. 491.) A mortgage of goods is in some cases valid without delivery, but not so a pledge. (Per Kent, J., Cortelyou v. Lansing, 2 Cainet? Cas. 200. Wilson v. Little, 2 Corns. 443. Story on Bailment, 287.) There was no sale or mortgage of the crops, for the reason that they had no existence when the instrument was executed and delivered. Besides, I am of the opinion that the terms used, that the plaintiff should have a " lien on the crops as se- curity" do not import a sale or mortgage. A mortgage is a conditional sale. This clause of the lease contains no words of sale, nor any from which a sale can be implied. (Brownell v. Hawkins, 4 Barb. 491.) But there is still another view of the case, conclusive against the plaintiff's right of recovery. Montgomery was " to market " the crops. The phrase to market, has a definite and well understood signification, and means to sell. Montgomery, therefore, had authority to sell the corn ; and whether in his own right as principal and abso- lute owner, or as agent for the plaintiff, can make no difference. It was insisted, on the argument, that the authority to market the crops should be construed to mean, to sell the same subject to the plaintiff's lien; but that would be in effect to strike out of the lease the words conferring the power. Montgomery would have had the right to sell the crops subject to the plain- tiff's lien, without any authority from him whatever. The par SCHENECTADY MAY, 1855. Milliman r. Nelier ties contracted for themselves, and no term, qualification or conlition can be erased, or superadded, by the court. It is insisted that this construction will totally defeat the lien. Better so than that a purchaser under* the plaintiff's written authority should be compelled to pay twice for the same property. He cannot be permitted to invalidate a sale which he in plain terms authorized. But it does not follow that the plaintiff's rights under that clause of the lease are destroyed by this construction. He may have been entitled to relief in equity. As between the parties to the instrument, and in re- gard to the note given on the sale of the corn, certain rights would remain. If the clause in the lease giving the supposed lien had any legal efficacy, the plaintiff might have reached the note, in the hands of Montgomery. But this is not the place to discuss the plaintiff's extraordinary and equitable rights. In this action the examination must be confined to questions in regard to the legal title to the property in controversy. (Otis v. Sill, supra, 121.) The cases are numerous in which the doctrine is held, that as between mortgagees and good faith purchasers or creditors of the mortgagor, an instrument which should allow the mortgagor to deal with the mortgaged property as his own would be void. ( Griswold v. Sheldon, 4 Corns. 581, and cases there cited in opinion of Brown, J.} When the instrument creating the lien also confers on the mortgagor a right or power to sell the prop- erty mortgaged, the buyer should be protected as a purchaser in good faith. He is presumed to have purchased under the authority conferred by the instrument. (Benson v. Bolles, 8 Wend. 175.) Such an instrument would create no lien on 1 the property, as against a purchaser or creditor. The judgment of the county court must be affirmed. [SCHENECTADY GENERAL TERM, May 7, 1855. Bockes, C. L. Allen and James, Justices.] V:.L. XX. 6 CASES IN THE SUP11EME COURT. CLARK &. WOOD vs. DALES & DALES. Or Mic 30th of August, 1853, the defendants proposed to the plaintiffs. by letter as follows: " We will engage to furnish you a boatload of flour, the last of next week, sanre quality sent G. and M., at $4.7-6, free to boat.''' This proposition was immediately answered by the plaintiffs in these words : " We will take the boat load flour, as per your proposition in yours of the 30th hist." Held that this was a clear and unqualified acceptance, by the plaintiffs, of the defendants' proposal, and that as soon as the plaintiffs' letter had gone beyond their control the bargain was complete, and it became mutually obligatory upon the parties, and could not be rescinded by either, without the consent of the other. The letter of acceptance contained this inquiry : " Please say to us how we shall remit 1" Held that this inquiry did not qualify the acceptance of the defend- ants' proposition. Held also, that it was competent for the parties, by a subsequent parol contract, to extend the time for the performance of the original agreement ; and this without any new consideration. And the plaintiffs being ready at the place of delivery, on the day to which the contract was extended, and willing to perform on their part, and the defendants refusing to deliver the flour; it was held, further, that the true measure of damages was the difference between the contract price and the value of the flour agreed to be delivered, on that day, with interest. When one party agrees to sell and deliver goods at a particular place, and the other agrees to receive and pay for them, an averment by the purchaser, of a readiness and willingness to receive and pay at that place, in case he sues for a non-delivery, is indispensably necessary to a good complaint. IJut the omission to make this averment is a defect which is cured by a verdict. On appeal, in such a case, from the judgment rendered at the circuit, the fact omitted to be averred in the complaint, will be presumed to have been proved ; inasmuch as a readiness and willingness to perform could not be proved, so as to authorize a verdict for the plaintiffs, without also proving a readiness and willingness to do so at the place. This is not such a case of variance between the complaint and the facts- found or proved as will be deemed to affect the substantial rights of the parties. Yet an amendment of the complaint is admissible and appropriate, under such circumstances, for the purpose of securing certainty and harmony in the rec- ord; and is sanctioned by ty 173 of the code. The amendment may be ordered at a general term, and without formal notice of motion for that purpose, when the object of the amendment is only to conform the complaint to the facts found, and when the record furnishes the only grounds for and against the same. HPHIS was an appeal by the defendants from a judgment en- _L tercd at a special term of the court. The first count of the SCHENECTADJ-HAY, 1855. 43 Clark v. Dales. complaint alleged a contract between the parties, made on the 30th day of August, 1858, for the sale and delivery by the de- fendants to the plaintiffs of a boat load of flour, at the plaintiffs' boat at the village of Jordan, for $4.93f per barrel, to be de- livered during the week next following the time of making the contract. The plaintiffs alleged that they had been always ready and willing to receive and pay for the flour, but that the defendants had wholly omitted to perform on their part. The second count was in substance the same as the first, except that it alleged that the time of delivery, mentioned in the first con- tract, was extended one week, by the agreement of the parties. The third count was the same, except that it alleged that the flour was to be delivered in a reasonable time. The fourth count was in the like form, except that it alleged the flour was to be delivered by the 1st day of October, 1853. The fifth count was the same, except that the time of delivery was al- leged to have been on the 2d day of Oct. 1853. The answer denied all the allegations in the complaint. The cause was tried at the circuit in Montgomery county, in February, 1854, before the Hon. C. L. ALLEN, J., without a jury. The justice found the following facts : That on the 31st day of August, 1853, the defendants, who were partners and millers doing business at Jordan, in the county of Onondaga, agreed in writing, with the plaintiffs, who were partners and merchants doing business at Fort Plain, in the county of Montgomery, to sell and deliver at or to their boat at Jordan. 800 barrels of flour, upon the following terms : That the flour should be of the quality of the flour previous to that time sent by the defendants to Gilchrist C Mozer. should be delivered the last of the then next week, free of expenses, to the plaintiffs, to their boat at Jordan, in the Erie canal, and that the plaintiffs should pay the defendants for said flour at the rate of $4.91 per barrel ; in consideration of which the said plaintiffs at the same time agreed with the said defendants in writing, and promised the defendants to accept and receive the said flour at the time and place before mentioned, and to pay for it at the rate of $4.94 per barrel ; and the defendants 44 CASES IN THE SUPEEME COURT. Clark v. Dales. agreed with the plaintiffs at the same time to procure to be de- livered the said flour at the time and place and in the mannei aforesaid ; that the time for the delivery of the said flour was by the agreement of the parties in writing, on or about the 3d of September, extended for a reasonable time, until the 1st of October, 1853, at which day the delivery of the flour at the plaintiffs' boat at Jordan, (which boat was then lying in the Erie canal at Jordan, ready for the reception of said flour,) was de- manded of the defendants by the plaintiffs, and the whole amount of the purchase money, at the price agreed upon, ten- dered and offered to the defendants, at Jordan aforesaid ; that the defendants then and there refused to accept and receive the said money, and refused and neglected to deliver the said 800 barrels of flour, or any part thereof, to the plaintiffs at their boat, pursuant to the said contract ; that the plaintiffs were at all times ready and willing to accept and receive and pay for the flour at their boat at Jordan, as required by the contract ; that the time for the delivery of the flour was from time to time extended at the sole request of the defendants, in writing, by the plaintiffs' consent, until the 1st of October, 1853. And the judge further found that the market value of flour of the de- scription mentioned in the contract, which was denominated Skaneateles Lake Mill brand, was, on the 1st day of October, 1853, at Jordan, $6.50 per barrel ; and he adjudged and deter- mined as matters of law, from the above facts, 1st. That the flour was to be paid for at the rate mentioned in the contract, in cash, on the delivery at the plaintiffs' boat, at Jordan. 2d. That the plaintiffs were entitled to recover against the defendants damages for the breach of contract on their part, in neglecting and refusing to deliver the flour when demanded, on the 1st day of October, 1853. 3d. That the amount of dam- ages the plaintiffs were entitled to recover against the defendants was the sum of twelve hundred and forty-eight dollars. The defendants' counsel moved for a nonsuit, or dismissal of the complaint, on the following grounds : 1. That no contract for the sale and delivery of the flour had been proved, as the time and manner of payment had not been agreed upon by the parties SCnENECTADY MAY, 1855. 45 Clark v. Dales. 2. That the complaint did not contain a statement of sufficient facts to constitute a cause of action. 3. That the plaintiffs were not entitled to recover under the first count in the com- plaint, for the following reasons : (1.) That it did not contain a statement of sufficient facts to constitute a cause of action ; (2.) That the contract, or cause of action, if any was set up. was not proved; (3.) That the performance or readiness to perform, on the part of the plaintiffs, was not proved ; (4.) That no final agreement between the parties was proved ; (5.) That the plaintiffs were not entitled to recover on either of the re- maining counts, for the same reasons ; (6.) That the proof failed to show a cause of action. His honor the judge denied the motion, and the counsel for the defendants excepted. The de- fendants also excepted to the finding of the justice as to the facts. Judgment was entered in favor of the plaintiffs for $1352.73. Porter $ Raynor, for the appellants. I. The complaint does not state facts sufficient to constitute a cause of action. It al- leges that the defendants were to deliver the flour to the plain- tiffs at their boat in Jordan. A readiness and willingness to pay the defendants at the plaintiffs' boat should have been al- leged. (Coonley v. Anderson, 1 Hill, 519. Porter v. Hose, 12 John. 209. 4 Term R. 125. 1 East, 203. 2 Bos. fy Pnl 447. 1 id. 320 and n. 4. 5 John. 179. 2 id. 207. 2 Sound. 252, n. 3. Mont. Co. Bank v. Albany City Bank, 3 Seld. 464.) II. The proof entirely fails to sustain either count in the complaint. The first count alleges that the flour was to be de- livered the last of the week next following the time of the mak- ing of the contract, which would be on Saturday the 10th of September. It cannot be pretended that the proof shows a readiness on the part of the plaintiffs at Jordan to receive and pay for the flour at that time. An excuse for not being so ready and willing is not set up in the complaint, and will not therefore aid cKr count in that respect. (Grand all v. Clarke, 7 Barb. 169. 1 Chit. PL 320, 321, 326. Baldwin v. Munn, 2 Wend. 399.) The 2d count sets forth the same contract contained in the first, and alleges that by an agreement between the parties 46 CASES IN THE SUPREME COURT. Clark v. Dales. the time for the delivery of the flour was extended one week, It also alleges a readiness and willingness on the part of the plaintiffs to perform. It will be seen that there is no proof of the extension set forth in this count, and consequently no proof of a readiness and willingness on the part of the plaintiffs to perform on their part. The 3d count sets forth an original con- tract to sell and deliver within a reasonable time. &c. There is no proof tending to sustain this count. The 4th count sets forth an original contract to sell and deliver &c., on the first day of October, 1853. There is no proof tending to show such a con- tract. The 5th count sets forth an original contract, in sub- stance the same as that set forth in the 4th count. To sustain an action under either of the four last counts there should be proof not only of the agreements therein set forth, but that the agreements were in writing. The letter of the plaintiffs of Sept. 5, in answer to the defendants' letter, in which they state their inability to deliver the flour as soon as was expected, so far from agreeing to any extension of time, does not even give the defend- ants permission to delay, and contains nothing which would for- bid them from demanding a delivery of the flour on the 10th. That letter requests the defendants by return mail to fix a day when they will be able to deliver the flour. This the defendants decline to do. It is impossible therefore to maintain the posi- tion that the time for the delivery of the flour was extended either by permission or contract on the part of the plaintiffs. It cannot therefore be claimed that the contract set forth in either of the four last counts is made out by any proof extending the contract set forth in the first count, were such proof admissi- ble for that purpose, and there can be no pretense that any such original contracts are proved. As to the first count, the court found that there was no breach by the defendants of the contract set forth in that count, inasmuch as he finds that the time for the delivery of the flour mentioned in that contract was extended by agreement between the parties until the 1st day of Oct. 1853. Consequently the recovery cannot be sustained under that count. The judgment cannot be sustained under the 1st count (which is the only one in any measure sustained by the proof) on the SCnEXECTADY MAY, 1855. 47 Clark v. Dales. ground that the proof showed an excuse for the plaintiffs not be- ing ready and willing to pay for the flour at the time and place mentioned in that count, for the reason that proof of a fact not pleaded is unavailing. (Field v. The Mayor fyc. of New 'York, 2 Seld. 179.) In order to recover under that count, the allega- tion in the count that the plaintiffs were ready and willing, &c. should be proved. ( Vail v. Rice, 1 Selden, 155.) III. There was no contract for the sale and delivery of the flour consummated. It is not pretended that an agreement was consummated, unless it be by the plaintiffs' letter of the 31st ui August, 1853. Upon the question of consummating a contract by written correspondence, the following principle is laid down by Chitty in his General Practice, vol. 1st, page 118, in v/Lieh he says : '' If the negotiation is by letter and the last letter suggests any new or further proposition requiring some coraiira- nication from the other party to complete the transaction, then no complete agreement is constituted." (See also Slayrnaker v. Irwin, 4 Whart. 369-80.) The proposition on the pari of the defendants to sell is contained in th 3ir letter of Aug. SO. The proposition is in these words : ""We will engage to furnish you a boat load of flour last of next weel^ same quality sent Gilchrist & Mozer, at $4, 7s 6c. free to boat." The plaintiffs' answer to this proposition is in their letter of August 31, and in the fol- lowing language : " We will take the boat load of flour as per your proposition in yours of the 30th inst. Please say to us how we shall remit." This question has never been answered. It will not be contended that the plaintiffs were not entitled to an answer to this inquiry, nor but that the defendants were at liberty to reply demanding payment by drafts on New York or in specie, at the time of delivery. It is clear that if the plain- tiffs were entitled to an answer to their questions they had a right to accept or reject the answer. Otherwise their right to an answer would be nugatory. The plaintiffs being entitled to an answer could not of course have been made liable for non- acceptance of and non-payment for the flour until such answer was received. As it is evident therefore that owing to the state of the correspondence the defendants have never been in a situ- 48 CASES IN THE SUPREME COURT. Clark v. Dales. ation when they could have maintained an action against th plaintiffs for non-acceptance and non-payment for the flour. ha(? they tendered it on the 10th of September, agreeable to then- proposition of the 30th of August or at any other time it fol- lows that the plaintiffs cannot maintain their action arising out of the same correspondence. To hold otherwise would be to dis- card the principle of mutuality in contracts, and to present tho legal anomaly of a contract of sale in which performance may be enforced on the part of the seller without any corresponding ob- ligation on the part of the purchaser. The minds of the parties had not met as to the time and manner of payment. In the opinion of the court it is said that " the law fixed the time and manner of payment." It is respectfully submitted that the law never fixes the time or manner of payment, except when the con tract is completed and is silent in that respect. Tc 3iy there- fore that the law had fixed the time and manner of pa^^ent in that stage of the opinion has the appearance of assuming a con- clusion. . If the letter of the plaintiffs of the 31st Augvisi had not been of a character calling for a reply which might have led to a breaking off of the negotiation (which seemed apparent and to be admitted in the opinion) the contract would have been complete, and the law would then have fixed the time and j^n- ner of payment. The plaintiffs, by the inquiry put to the de- fendants in their letter of 31st of August, prevented the kv from fixing the time and manner of payment; and thereby re- served to themselves the right of determining the time and man- ner of payment by express agreement with the defendants. If this action had been one against the plaintiffs for not accepting and paying for the flour, it would be unsafe and consequently unsound to hold that the inquiry was made by the plaintiffs with no object to their own benefit or convenience, in the absence of all testimony warranting such a conclusion ; especially when it is apparent that the answer, or their acceptance or rejection of it, might have relieved them from the onerous duty which otherwise the law would have imposed upon them, of paying the whole amount of the purchase money in cash at the time of the deliv- ery of tho flour. It need not be said that the same rules of con- SCHEXECTADY MAY, 1855. 49 Clark v. Dales. struction hold in an action brought by them. The following doctrine is laid down by Mr. Chitty in his General Practice, at page 118: " When the parties have contracted for themselves, no term or stipulation not expressed will be superadded by the court, although the court might readily conjecture what the parties intended or what would be reasonable. For courts are to construe, not to make, contracts for parties which they have omitted to make for themselves." The language which in legal eifect is given to the plaintiffs' letter of the 31st of August, by the opinion, is as follows : " We accept your proposition to sell at $4.94 per bbl. parable in cash on delivery'of the flour next week at our -boat in Jordan. But to accommodate you we will remit in any other way ?>y draft or otherwise if you desire it." This would appear to b:> in direct conflict with the well settled prin- ciples above laid down by Mr. Chitty. The court below finding or deciding that the legal effect of the letter is to speak in the language given to it by him, has virtually decided that no other construction can legally be given to it, no matter how apparent it may be that the writer intended otherwise. When a writer or speaker uses a given phraseology, he can never be said in legal effect to. use a different phraseology. Whether he intends to be understood in a sense which maybe more clearly express- ed in a different phraseology, is always a matter of fact and not of law. The court, therefore, clearly erred in holding as a mat- ter of law that the effect of the plaintiffs' letter of August 31, was such as is expressed by the language above quoted. If any effect is to be given to the supposed intention of the plaintiffs in making the inquiry, it is by no means apparent that it was made by the plaintiffs solely with the view (as the court sub- stantially holds) of learning how they can best accommodate the defendants in the time and manner of payment, when the answer to the inquiry might have been of such a character as would protect the plaintiffs or enable them to protect themselves against the possible necessity of obtaining and transporting to the village of Jordan about $4000 in specie in payment for the flour. The plaintiffs in their letter of the 31st of August can with as much propriety be regarded as saying, " We will take VOL. XX. 7 50 r.\-rs ix THE SUPREME COURT. Clark f Dales. tlic flour on the terms expressed in your proposition, provided the time and manner of payment or remittance will accommodate us,, of which please inform us," as using the language which the court says <: in legal effect" was used. That the plaintiffs did not in fact intend what the court says was the " legal effect" of their letter is apparent from their letters of the 5th and 27th of Sept. In the letter of the 5th they ask the question again with appa- rent earnestness, " How do you want your pay and when?" which shows that they regarded themselves as still uninformed in that particular, and is entirely inconsistent with their having previously in substance or legal effect said (as claimed by the court,) " we accept your proposition to sell &c., payable in cash on delivery of the flour next week." In the letter of the 27th of Sept. they say, " as soon as we get the bill we will forward the pay," contemplating the previous delivery of the flour on board of their boats and the receipt of the bills by them at Fort Plain before "forwarding the pay." This is truly inconsistent with their having previously agreed to pay "in cash down at their boat at Jordan." It is submitted therefore that such was not the "legal effect," or the understanding of the plaintiffs, of their letter of August 31st. But whether such was or was not the intention of the plaintiffs is not the true question to bo decided. It is this : Does it appear from the letters themselves so clear that it may be treated .AS a matter of law, that the plain- tiffs were not entitled to an answer to the inquiry put in their letter, or if entitled to an answer that it must of necessity havo been such in its legal effect as not to continue the negotiation open ? But it seems evident that they were entitled to an an- swer, and that the effect of the answer might have been such as to leave the contract open, seems to be equally apparent and ad mitted by the opinion. It Avill be conceded that the letters prior to and including that of August 31, are to be put together as making one written instrument. The question arises, do they make a finished or perfect instrument ? Justice Story, in Powell and wife v. The Brit/ford Manufacturing Company, justly remarks, that "it is dangerous to bolster up imperfect instru- ments by conjectures and inferences." (See also Rawle on Cov- SCHENECTADY MAY, 1855. 51 Clark r. Dales. enantsfor Title, p. 109.) It is evident that the writing in this case cannot be treated as a perfect instrument unless by infer- ring, as the court have done, the object of the inquiry of the plaintiffs, in their letter of August 31, and that of a particular character, when it is possible and more than probable, that their real object was one of quite a different nature. Nor can it be treated as a contract without resorting, as the court have found it necessary, to the "addition" of " terms and stipulations not expressed," thereby, in violation of the rule above quoted from Chitty's General Practice, " making a contract for the par- ties which they have omitted to make for themselves." Inas- much therefore as the inquiry of the plaintiffs in their letters as to the time and manner of payment were never answered by the defendants, it cannot be said that their minds had ever met on that point, and consequently no final agreement was constituted. It is evident that after an agreement has been once perfected it is not in the power of any one of the parties, by any thing he may say or do, to re-open it ; and it is one of the most certain modes of testing the question whether a negotiation has ripened into a contract, to determine whether it is still in the power of any one of the parties to propose terms or reject those offered. The court, at fol. 100, say that "If the defendants had answered by proposing payment in specie, it might have left the contract open." While this is too plain a proposition to be denied, it- seems to be equally plain, that as one of the parties had it in his power to " open the contract," or in other words to keep it open, no complete agreement had been perfected. When a contract should be in writing, to render it valid, and when it is sought to be established by a written correspondence, the silence of a par- ty on a material feature, when interrogated in relation to it, should not be so construed as to render it a substitute for what ought to be in writing. Such, however, would seem to be the view taken by the court of the defendants' letter of the 1st of Sept. in answer to the plaintiffs' of the 31st, which was silent as to the inquiry of the plaintiffs in their letter. The court then says that the " contract is recognized," and that " the de- fendants intimate by their entire silence their desire and inten- 52 CASES IN THE SUPREME COURT. Clark v. Dales. tion to permit that part of the bargain [terms or time of pay- ment] to remain as the law made it, and the agreement therefore remained complete as before." By this it is intended substan- tially to say that the silence of the defendants upon the subject of the inquiry put by the plaintiffs, is equivalent to an assertion on their part; they desired the term of payment to be "cash down at the time and place of delivering the flour." It is sub- mitted that such inference is inadmissible. But if such inference can be drawn from the silence of the defendants in their letter of Sept. 1st, it is evident that the plaintiffs did not so regard it, as they repeat the same inquiry in their letter of the 3d of Sep- tember, answering the defendants' letter of the 1st of September. There is no pretense, therefore, for saying that the minds of the parties had met on that subject, because if the silence of the de- fendants in their letter of the 1st of Sept. is to be regarded (as the court substantially have held) as equivalent to an assertion on their part " that they claim the privilege of demanding cash at the time of delivery, it certainly cannot be said that the plaintiffs acquiesced in such assertion ; otherwise they would not have again, in their letter of the 5th of September, repeated the inquiry, " How do you want your pay, and when ?" The observation of the court that the defendants' letter of the 1st of Sept. recognized the "contract," and that the defendants' omis- sion to answer "left the agreement complete as before," may be regarded as prematurely assuming that a contract or agreement had been perfected. IV. The measure of damages was erroneous. The rule on this subject is correctly laid down by the court below, -but the error consists in fixing the 1st day of October, instead of the 10th day of September, as the time at which the flour Should have been " delivered by the contract," admitting that a con- tract resulted from the correspondence closing with the letter of Aug. 31, 1853. There can be no pretense for saying (under the rule adopted by the court below) that the difference be- tween contract price and value on the 1st of October is the measure of damages, unless the time for the delivery of the flour had been extended to that date by a contract mutually SCUENECTADY MAY, 1S55. 53 Clark v. Dales. obligatory upon both parties, so that if the f rice of flour had been less on the 1st of October than on the 10th of September, the difference in value at that time would still have governed. That such a result could arise, from the nature of the transac- tion between the parties, will not be seriously contended. But such would be the result if a valid contract extending the time to the 1st of October had been made. There is not. however, any proof of such a contract. The plaintiffs have not only re- frained from making such an extended contract, but from even giving the defendants permission to enlarge the time spoken of in the defendants' letter of 30th of August ; so that they have never for a moment since the 10th of September, been prevented from demanding the flour and recovering for its non- delivery, provided the alleged original contract was valid. But if a dispensation to the defendants from a strict performance of the contract (if any) as to the time of the delivery of the flour had been given by the plaintiffs, the measure of damages in case of final non-performance, would relate back to the time of performance mentioned in the contract. Such seems to be the law as laid down in the case of Hasbrouck v. Tappen, (15 John. 200.) V. The court below erred in receiving in evidence the letters dated after the 1st of September, 1853. for the reasons specified in the objection. They are no evidence of an extension of time, (for which object they were offered.) The letter of the 3d of September states a probable inability to deliver the flour as soon as expected. The plaintiffs' letter of the 5th of September, in answer, consents to no delay, but in reference to a delay asks the defendants to fix some day when they shall have the boat at Jordan, which certainly is no consent to a delay. The de- fendants in their letter of the 10th of September are not able to fix upon a day, but say they will do so the beginning of the week, but fail to do so. This is the defendants' last letter. Where then can evidence be found of even a permission, much less a contract, to extend the time of the delivery of the flour to the 10th of October, or any other time ? (Hasbrouck v. Tap- 54 CASES IN THE SUPREME COUKT. Clark v. Dales. f)fin, 15 John. 200.) This evidence has influenced the court, as the report is based upon an extended contract. VI. The court below erred in receiving the evidence of Hop- craft, objected to by the defendants' counsel. If this request of S. H. Dales had been made prior to the 10th of September, (the time of the expiration of the alleged original contract,) such evidence might be, in connection with other evidence, ad- missible to show a dispensation by the plaintiffs to the defend- ants from a strict performance. But this simple request, stand- ing alone, and without proving or offering to prove the plaintiffs' assent to it. and more than all, after the alleged original contract had been broken, can furnish no evidence of an extension of such contract, much less of its revival. VII. The court below erred in allowing the evidence of Boardman as to the value of wheat on the 1st day of October, 1853. The damages, so far as the value of the flour is con- cerned, are to be determined by the value at the time of the expiration of the written contract. (15 John. 200.) C. B. Cochrane, for the plaintiffs. I. The proof establishes an agreement in writing between the respondents of the one part and the appellants of the other part, embracing all the legal essentials of a contract, perfect in all its parts and mutu- ally obligatory upon the parties. (Mactier v. Frith, 6 Wend. 103, 115. Vassar v. Camp, 14 Barb. 341, 354. Erisban v. Boyd, 4 Paige, 17. Chitty on Con. 13, 14, 1th . Amer. ed. 1 Parsons on Con. 400 ? 407.) (1.) Conceding this to have been a contract of sale, and not for work, labor and services, (10 Bar- hour, 406,) it was a contract in writing, and good under the statute of frauds. A contract required to be in writing by the statute of frauds is valid, though subscribed only by one party, if the party to be charged. (Chit, on Con. 71. 2 Caines, 117. 16 Wend.' 460.) A letter of acceptance referring to one con- taining the proposition, is a perfect compliance with the statute ; so an offer by letter, if accepted, though acceptance be by parol ; HO also, letters constitute a valid agreement in Avriting, though a formal agreement in writing is contemplated by the parties. SCIIENECTADY MAY, 1855 55 Clark i: Dales. (Chit, on Con. 397.) The negotiation in this case was con- ducted and the contract consummated by letter, a mode which the law recognizes. The elements of a valid contract are the same, whatever be the mode, and these are well defined and entirely settled. There must be parties capable of contracting ; there must be a subject matter, or something to contract about ; there must be mutuality, a consideration, and a concurrence of mind. There must be a proposition on one side and an assent to it on the other, and the assent must embrace all the essen- tial terms of the proposition, without addition or limitation. "Where parties are together chaffering about an article of mer- chandise, and one expresses a present willingness to accept of certain terms, that willingness is supposed to continue, unless it is revoked, to the close of the interview and negotiations on the same subject, and if during this time the other party says he will take the article qn the terms proposed, the bargain is there- by closed." So where a proposition is sent by letter, the prop- osition is held to remain open, presumed to be continually repeated, until the period of acceptance, and the moment the other party deposits in the post office a letter accepting the proposition upon the terms proposed, a bargain is struck, and the contract is complete and obligatory between the parties (4 Paige, 17. 6 Wend. 103, 115, and all the cases fir si above cited.] (2.) Another rule is, that it is not at all material by which of the parties to an agreement the words which make it one are spoken. The intent governs, and if this be clear, and expressed with sufficient definiteness, it is enough. (1 Met. 93.) And the subsequent acts and conduct of the parties are com- petent evidence to show such intent, and confirm and ratify the contract. (1 Cnsh. 89. 13 John. 294. ' 6 Wend. 122, 123.) Still another rule is, that all the conditions of a contract, in or- der to its binding obligation, need not be expressed ; where not expressed the law implies them. For instance, a promissory note need not express the rate of interest, or " value received," nor a contract of sale, when payment is to be made, or in what currency, or where the thing sold shall be delivered, or the precise time of delivery. Where in these respects the contract t>6 CASES IN THE SUPREME COURT. . _ _ Claik v. Dales. is silent, the law comes in and fills up the blanks, and. de- clares the intent of the parties. (3.) Tested by these rules of law, which are familiar and well settled, was there a contract proved between these parties such as the law will enforce 1 Under date of August 29, the plaintiffs, residing at Fort Plain, wrote to the defendants, residing at Jordan, and propounded the following question : ' How IOAV will you sell us a boat load of flour at your mill, to be same quality as that you sold to Messrs. Gilchrist & Mozer a few days since, and to be delivered some time next week ?" To this the defendants replied the next day, August 30th, and submitted for our acceptance the following proposition : " We will engage to furnish you a boat load of flour the last of next week, same quality sent Gilchrist & Mozer, at $4.7-6, free to boat. Should you decide to have it, let us know by return mail, that we may make our arrange- ments accordingly." By return mail the plaintiffs answered : " Gents : We will take the boat load flour as per your proposi- tion in yours of the 30th inst." Here was a literal acceptance of the very terms of the proposition, without increase or diminu- tion. The two make a perfect contract in writing. It is diffi- cult to conceive of a plainer case. The minds of the parties had met as to quantity, quality, price, time and place of delivery, and as to the time and manner of payment, for that is fixed by the law. The law says, the agreement was cash on delivery of the flour at the plaintiffs' boat at Jordan ; and had the words " cash on delivery" been expressed in the proposition, the contract in this respect would have been no clearer, or better understood by the parties. Do the court doubt that both of these parties per- fectly well understood, as business men, that by the agreement the terms were to be cash on delivery ? Did not the defend- ants know that by the contract they had made they would be entitled to cash on delivery ? Did not the plaintiffs know that ihey must pay cash on delivery? The law says they knew it, and they knew it in fact. Then their minds met ; the plain- *iffs' letter of acceptance in no way departed from the terms of the offer, or added to it. It is manifest by the very tenor of the reply that the plaintiffs intended to close in with the offer at SOHENECTADY MAY, 1855. 57 Clark v. Dales. a single dash of the pen, which they did, and closed the ac- ceptance by a period. Having accepted the whole proposition, and nothing else, they then, by way of a new paragraph, go on to state the probable day of the next week when their boat would be at Jordan. The words, "be sure the quality of the flour is uniform and such as you propose to give us, and put up in good packages," are no part of the acceptance, and were never meant or regarded as qualifying either the offer or accept- ance, as is manifest from the subsequent acts and conduct of the parties. But even if a part of the acceptance, it does not affect its absolute character. It was saying simply, let the flour be uniformly of the same quality as that sold to Gilchrist & Mo- zer, as you have agreed it should be ; not some better and some worse. It was merely a request, simply saying fulfill your contract. But the plaintiffs, after the contract was complete, write, "please say to us how we shall remit ;" and it is contend- ed that this shows that the time and manner of payment was still an open question, and hence there was no contract. This is not the correct interpretation, nor the one which the parties have by their conduct put upon it. The plaintiffs by this lan- guage did not and could not reserve to themselves any thing. The words, " please say to us how we shall remit," were pre- cisely equivalent to saying " command us as to how we shall remit/' we have agreed to pay and expect to pay cash on de- livery, but if you prefer a draft on New York or any other mode more convenient to yourselves, you have only to command us, we make the suggestion for your accommodation. The de- fendants did not choose to change the contract or command us in that respect, and understanding the agreement as they did, the plaintiffs went to Jordan with the money in their hand. But how can the idea of no contract be reconciled with the sub- sequent conduct of these defendants? See subsequent letters. The defendants, by their letters and interviews, continued to assure the plaintiffs, though in the " midst of disappointments," that the flour should be forthcoming, that the fulfilment of the contract was but a question of time, and thus not only recog- nized the contract, but induced the plaintiffs to expect this VOL. XX. 8 58 CASES IN THE SUPREME COURT. Clark v. Dales. flour, and not look for a supply in any other quarter. It is too late after this to change their ground and say they were mis- taken, there was no contract. They are estopped. (4.) The proof shows the plaintiffs' letter of the 31st of August was sent by return mail. The plaintiffs' boat carried 800 barrels ; 800 barrels is an ordinary boat load. The flour sold Gilchrist & Mozer was the " Skaneateles Lake Mill Brand," a well known brand. II. Whether the minds of the parties met, so as to constitute a valid contract, was a question of fact, and the finding of the judge, like the verdict of a jury, is conclusive. (1 Cush. 89. 13 John. 294.) III. The complaint is well drawn, and the facts therein stated constitute a perfect cause of action. In an action for non-de- livery of goods sold, it is sufficient to aver that the plaintiffs were always ready and willing to receive and pay at, &c. This the plaintiffs have done. (1 Parsons, 448, 9, and note. 12 John. 209, 211, 212. 12 Wend. 408. 5 John. 179.) The plaintiffs not only averred that they were always ready and willing to receive and pay at the place mentioned, but proved it upon the trial. "An averment that he was always ready, necessarily relates to the time of delivery." The complaint is according to approved precedents. IV. It was not necessary that the complaint should contain an averment that the time was extended, in order to admit evidence that the plaintiffs at the request and upon the appli- cation of the defendants, had consented to or acquiesced in an extension of the time of delivery. The object of the evidence was not to show that a new contract had been made, or any stipulations of the contract changed or waived, but to show that the contract as made was kept on foot by the parties. The general rule may be, that an averment of performance will not be sustained by evidence of a legal excuse for non-per- formance. (7 Barb. 169. 8 id. 327.) But it is submitted, that neither the rule nor the reason of it, applies to a case of mere extension of the time of performance, when the objection comes from the party at whose request and for whose accommodation SCHENECTADY MAY, 1855. 59 Clark v. Dales. the extension has been granted. The reason of this rule of plead- ing in the cases Avhere it applies is, that the excuse of matters constituting it often forms a material issue of which the defend- ant has a right to be informed by the pleadings. No such reason exists in this case. The complaint is not that the de- fendants did not deliver the flour by the 10th of September, or did not deliver in time, by which the plaintiffs lost great gains, &c. The real complaint and breach assigned are, that the defendants refused to deliver at any time. We did not get the flour, and thereby lost great gains. This complaint is abundantly sufficient within the case of Crane v. Maynard, (12 Wend. 408.) Besides, as the learned justice who tried the cause, in his opinion remarks. " The defects, if any, are those which have occasioned no surprise to the defendants, nor prevented them from availing themselves of all the grounds which they could interpose." The . defense, in whatever aspect it can lie viewed, is inequitable, and purely technical, and if neces- sary, the court will direct the complaint to be amended, or deem it amended, so as to conform it to the facts proved. The power of the court, and the propriety of its exercise in this case, cannot be doubted. (Code, 173. 1 Kernan, 237, 242.) V. The rule and measure of damages were correctly applied. The plaintiffs, at the repeated and continued request of the defendants, had indulged the latter by consenting to an exten- sion of the time of delivery, as long as it was consistent with the plaintiffs' rights. The defendants representing each time, not that there was no "legal contract," and that they were not bound to delivery, but that in consequence of unforeseen obstacles and " disappointments," they could not deliver at the time promised. When, therefore, the plaintiffs, on the 1st day of October, demanded the flour and tendered the price, they were entitled to receive it. Consequently they are entitled by way of damages,-to the difference between the contract price and the market value at that time. (2 Sandf. 127. 9 Wend. 129, 135. 24 id. 322.) VI. The objections made to the introduction as evidence of the several letters which passed between the parties subse- ftO CASES IN THE SUPREME COURT. Clark v. Dales. quent to the making of the contract, are principally upon the ground that they were not admissible under the pleadings, no extension of time being averred, and hav.e been already suffi- ciently answered. The objection made to the evidence of the wit- ness. George Hopcraft, rests upon no better foundation. An extension of the time for the delivery of articles under a writ- ten agreement, is not a waiver of any of its stipulations, but a. mere enlargement for the time of its performance, and may be proved by parol. (CJdtty on Con. 111. 9 Wend. 68. 15 John. 200. 12 Wend. 408. 4 Barb. 615.) The clear and well-reasoned opinion of Justice Allen covers all the ground presented by this case, and renders an argument by counsel quite unnecessary. By the Court, BOCKES, J. On a motion for a new trial on a case, where the cause is tried by the court without jury, its decision on questions of fact is to be treated and regarded the same as would be the verdict of a jury, or the report of a ref- eree. (Mann v. Witbeck, 17 Barb. 388.' Osborn v. Mar- yland, 1 Sandf. S. C. R. 457. Oakley v. Aspinwall, 2 Sandf. 7. Gilbert v. Luce, 11 Barb. 91.) The decision on the facts must therefore be conclusive upon the court in bank, unless the preponderance of evidence is so great that the verdict of a jury to the same effect, on the same testimony, would be set aside, or unless there is a total failure of evidence to give the decision, support. A difference of opinion where there is a conflict of ev- idence is not to be indulged, to affect the verdict of a jury, the report of a referee, or the decision of the court on the facts, in case of trial without jury. (Van Steenburgh v. Hoffman, 15 Barb. 28.) In this case, however, there is no conflict of ev- idence. The proof is explicit; and the principal question to be considered is whether it establishes a valid agreement between the parties. The mode of contracting adopted by the parties in this case is well recognized by law, and possesses great merit by reason of the perspicuity and certainty generally attending it. Perhaps there is no other mode equally convenient, more satisfactory or SCHENECTADY MAY, 1855. Q \ Clark v. Dales. !ess liable to admit of misapprehension or misconstruction. In the case under consideration the facts are too plain to admit of doubt or mistake. The defendants proposed to the plaintiffs as follows : " We will engage to furnish you a boat load of flour, the last of next week, same quality sent Gilchrist & Mozer, at $4. 7-6, free to boat." This proposition, dated and sent on the 30th August, was answered by the plaintiffs immediately, as follows : " We will take the beat load flour as per your prop- osition in yours of the 30th inst." The proposition was brief and explicit, and its acceptance clear and unqualified. So soon as the letter of acceptance had gone beyond the plaintiffs' control, the bargain was complete. Nothing remained but to carry it into effect, and it became mutually obligatory upon the parties. (Mactier v. Frith, 6 Wend. 103. Brisban v. Boyd, 4 Paige, 17. Vassar v. Camp, 14 Barb. 341. Story on Con. 384.) It is conceded that the proposition fixed the price, kind, qual- ity and quantity of the article, and place of delivery, and it might be added, also, that it fixed the time of delivery, for it- did so with sufficient certainty. The offer was accepted with- out any qualification. The contract was therefore complete, and could not be rescinded by either party without the consent of the other. True, it was silent as to the time and manner of payment, but in such case the law determines that. Payment must be made in such case on delivery, and in legal currency. ( Thompson v. Ketcham, 8 John. 189. 2 Kent, 496. Story on Con. 803. N. Y. Ins. Co. v. De Wolf, 2 Cow. 57, 105, 6. Chapman v. Lathrop, 6 id. 110. Cornwall v. Haight, 8 Barb. 327.) The defendants were bound to deliver the flour, and the plaintiffs to pay for it, each according to the contract. The letter of acceptance contained this inquiry : " Please say to us how we shall remit ?" and it is contended that this inquiry qualified the acceptance of the defendants' proposition. The argument is that if the plaintiffs were entitled to an an- swer to this question, they had a right to accept or reject the answer, whatever it might be. Admit this, and it proves noth- ing affecting the original proposition and its acceptance. It was CASES IX THE SUPREME COURT. Clark v. Dales. no more than if the plaintiffs, instead of inquiring how they should remit, had inquired if the defendants would exact gold and silver in lieu of bank bills. In Brisbaav. Bnyd. (4 Paige. 17,) the letter of acceptance contained a request that the cjtton should be designated and marked on joint account, and that information should be given when it was shipped. In that case it was insisted that there were conditions imposed upon the acceptance of the proposition. But the chancellor held that the letter was an unconditional acceptance of the offer to which it was an answer; and that what was said as to designat- ing arid marking the cotton and informing them of the time of shipment, was merely directory as to the manner in which they wished the cotton to be sent. The case of Brisban v. Boyd, was much more favorable to the view taken by the defendant's counsel, than is the one under consideration ; for in that case there was some propriety in the suggestion that the designating, mark- ing, and immediate information, requested,, entered into and formed part of the contract. But in this case, the utmost force that can be given to the interrogatory is, that the plaintiffs by a reply wished to know whether the defendants Avould insist upon and exact in regard to payment, strict performance of the^ agreement ; and it may be added, that the defendants' silence was, in legal effect, an answer that they should. But the plaintiffs were not legally entitled to any answer to the question. The defendants so understood it, and remained silent. That they so understood it is evident from iheir subse- sequent letters recognizing the agreement as closed and binding. The decision filed by Justice Allen states "that the time for the delivery of the said flour was, by the agreement of the par- ties in writing, on or about the 3d of September, extended for a reasonable time until the 1st of October, 1853." and that such extension was granted " at the sole request of the defendants ;" and further " that the plaintiffs were at all times ready and wil- ling to accept, receive and pay for the flour," according to the contract. The contract, as evidenced by the proposition of the 30th SCIIEXECTADY MAY, 1855. 63 Clark v. Dales. August, (Tuesday) and its acceptance, the following day, (Wed- nesday,) specified the time of delivery as "the last of" (the then) " next week." On Thursday, the 1st of September, one of the defendants requests the plaintiffs by letter " to make it." that is tfye delivery, " as late in the week as they conveniently could." Two days after, and on Saturday the 3d September, the defend- ants address another letter to the plaintiffs in which they state that they were in the midst of disappointments, and that it would be impossible to get the flour ready as soon as was expect- ed, but added " it shall be got out just as soon as possible." The plaintiffs, by letter dated the 5th September, (Monday) acknowledged the receipt of this letter, and inquired when the wheat would be ready for delivery. This was on Monday of the week, the last of Avhich, by the terms of the original agree- ment, the flour was to be delivered. On Saturday, the 10th of September, and the last day for the delivery, the defendants answer the plaintiffs' letter, and say that in the beginning of the next week they would be able to inform them when they could deliver the flour. Notwithstanding the plaintiffs addressed to the defendants two letters, one under date of September 20th and the other September 23d, inquiring when the flour would be ready, nothing more was heard from the defendants by letter. But it seems that on the 22d or 23d of September, Stephen Dales saw one of the plaintiffs, and requested them to put off sending for the flour about a week. At the end of this week, September 30th, the plaintiffs were at the place of delivery ready to perform, and on the next day, October 1st, made a demand formally, in writing, for the flour, and offered payment. Dales refused to deliver it, and gave as a reason that " he did not consider there was a legal contract." The refusal was not put on the ground that the plaintiffs had failed in any respect to fulfill, but on the ground that there was no legal contract. It has been shown that there was, and the defendants, not having fulfilled it and having refused to perform it, must atone for the injury occasioned by their neglect and refusal. By the let- ter of the 5th September, the defendants promised to deliver as soon as possible ; and by the letter of the 10th they 64 CASES IX THE SUPREME COURT. Clark v. Dales. promised to inform the plaintiffs when they could deliver, and on the 22d or 23d, Dales did inform them, in substance, by re- questing them to put off sending the boat for the flour about one week. To all these delays the plaintiffs acceded. It was well found, therefore, that the time of performance was extend- ed, at the defendants' request, and with the plaintiffs' consent, to October 1st. It was competent for the parties by a subse- quent contract to agree on such extension. (Frost v. Everett, 5 Cow. 497. Blood v. Goodrich, 9 Wend. 68. Cummings v. Arnold, 3 Mete. 486. Crane v. Maynard, 12 Wend. 408. 1 John. Ch. 22. 7 Cowen, 48. 1 id. 249.) Even the time of per- formance of a sealed instrument ir.ay be enlarged by parol. (Esmond v. Van. Benschoten. 12 Barb. 366, and cases cited.} But the enlargement of the time of performance of an agree- ment under seal should be regarded rather as a waiver of strict, performance, that is, the parties consent to accept performance at a future day. and when a party procures delay he shall not be allowed to urge it for his own protection. ( "Young v. Hun- ter, 2 Seld. 203.) In Keating v. Price, (1 John. Cas. 22,) the action was on a simple contract for the delivery of staves on or before the 1st of May. The defense was that the plaintiff had extended the time for delivering them until the next spring. The extension was held valid, and a nonsuit entered. This case is referred to and approved in Dearborn v. Cross, (7 Cow.- 48, 50.) In Erwin v. Saunders, (1 Cow. 249,) it was held that simple contracts in writing might be varied by a parol enlarge- ment of the time of performance. Nor is a new consideration necessary to give validity to an agreement to extend the time ; the waiver is enough for that purpose. (14 Serpen,l5John.20Q,<2().) It is a new agreement substituted for the former one, by which the parties agree in all respects as formerly, except as to the time of performance, which they then fix for a future period. And SCHENECTADY MAY, 1855. (55 Clark v. Dales. it is under the new substituted agreement that redress must be sought in case either should fail or refuse to perform. It follows therefore, that on the 1st day of October, the de- fendants were bound to deliver the flour, arid the plaintiffs to pay for it. The plaintiffs were ready at the place, and willing to perform the contract, but the defendants refused ; and this brings us to the question of damages. It has been shown that the defendants were bound to deliver the flour on the 1st day of October, and that they refused to do so. The difference therefore between the contract price and the v;ilue of the flour agreed to be delivered on that day, with in- terest from that period, was the true measure of damages. It is insisted that the complaint does not state facts sufficient to constitute a cause of action ; and the point of objection is, that it does not aver a readiness and willingness to pay at the plaintiffs' boat. The authorities and precedents are to the point, that when one agrees to sell and deliver at a particular place, and the other agrees to receive and pay, an averment by the purchaser of a readiness and willingness to receive and pay at that place, in case he sues for a non-delivery, is indispen- sably necessary to a good complaint. In this case the contract, as stated in each of the five counts, was, to deliver the flour at a particular place, to wit. at the boat, at Jordan, yet neither of the last four counts avers a readiness and willingness to receive and pay at that place. The objection, under the old practice, would have been fatal to those counts if taken by special de- murrer. It -was suggested that the words "as aforesaid," in the first count, following the averment of a readiness and will- ingness to receive and pay, remedied this defect in that count ; but it is doubtful whether those words, as there used, are not totally unmeaning. But it is quite unnecessary to reason or cite authorities on this question, inasmuch as each count, under the practice before the code, would have been held good after verdict. This objection comes up like a motion in arrest of judgment under the former practice. On such motion the ver- dict was deemed to cure, or supply the defects or imperfections in the statement of the case. (Bayard v. Malcolm, 2 John. VOL. XX. 9 QQ CASKS IX THE SUPREME COURT. Clark r. Dales. 550. 571. Owens v. Morehonse, 1 id. 276. Lejfirtgwell v White, 1 John. Cas. 99. Carpenter v. Brown, 6 Barb. 147." In the last case cited, it was held that the omission to allege a time and place is not an available objection to the declaration, in arrest of judgment or on general demurrer. In Additigton v. Allen, (11 Wend. 374,) it was decided in the court of errors on motion in arrest of judgment, ' : that the facts which will after verdict be presumed to have been proved, are those which though entirely omitted to be stated in the declaration, are so connected with the facts alleged that the facts alleged cannot be proved without proving those omitted." This decision covers the case under consideration. A readiness and willingness to perform is averred, and could not be proved, so as to authorize a verdict for the plaintiffs, without also proving a rea.diness and willingness so to do at the place. Each count is based on a valid agreement as the same is set forth in the pleading ; and a breach by the defendants is well stated ; there is also an aver- ment of performance by the plaintiffs, but it is imperfectly alleged in the particular specified. This statement makes jusfc the case which a verdict is deemed to cure. (Code, 170.) Again, by section 176 of the code it is provided that " the, court shall in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect." There is some difficulty in applying the facts of this case to either count of the complaint. They best apply to the second and fourth counts. The second count sets up the original agreement, and an extension of the time of its performance one week ; arid the fourth count sets up an original contract to de- liver on the 1st day of October. It is therefore but a question of variance between the facts found, or proof, and the com- phiint. Nor can it be pretended that the variance has actually MiisU'd the defendants to their prejudice, in maintaining theii defense on the merits. (Code, 169.) In Fay v. Grimsteed, (10 Barb. 821.) it was held that a variance between the plead- ings and the proof, sufficient to defeat the action or destroy SCHENECTADY MAY, 1855. 67 Clark v. Dales. the defense, must leave the case unproved in its entire scope and meaning. The questions at issue on the pleadings among others were, as to the extension of performance of the original contract, and also as to the defendants' duty to deliver on the 1st of October The defendants were, by the pleadings, ap prised of the plaintiffs' purpose to introduce evidence on those questions, and hence had the opportunity to make preparation for a full defense on the merits to the case as proved on the trial. The variance, therefore, cannot be deemed to aifect the substantial rights of the parties. Notwithstanding the variance between the pleading and the proof is deemed immaterial, an amendment of the complaint is considered admissible and appropriate, for the purpose of secur- ing certainty and harmony in the record. Section 173 of the code contemplates a case like the present. It provides for an amendment of pleadings, as well after as before judgment, by inserting allegations material to the case, or " by conforming the pleading or proceeding to the facts proved, when the amendment does not change substantially the claim or defense." (Bate v. Graham, 1 Kernan, 237.) Whether the amendment should be ordered at general term and without formal notice of motion for that purpose, or on .notice as a special motion, is a question of practice, not entirely settled. In Gunter v. Cat- lin, (11 Leg-. Obs. 209,) Duer, J., remarked, " We have now indeed a large discretion in amending pleadings, so as to con- form them to the facts of the case as disclosed by the evidence, and we have not unfrequently exercised this power at a general term, even where no motion to amend had been made upon the trial ;" by which it may be understood although it does not necessarily follow from the language that a formal notice of motion was not required. But see De Peyster v. Wheeler. (I Sancff. 719, 720.) In a case like the present, where the amendment is only to conform the pleading to the facts specifically found by the court, and where the record furnishes the only grounds foi and against the amendment, a motion is quite unnecessary. The judgment must be affirmed, with costs, with liberty to gg CASES IN THE SUPREME COURT. The People v. Imlay. the plaintiffs to amend the complaint. The amended count should set out the original contract as in the first count, and should aver an extension of the time of performance for a reasonable time, to wit, to and until the 1st day of October. 1853, and a readiness and willingness to receive and pay on that day by the plaintiffs, at the boat, at Jordan. GENERAL TERM, May 7, 1855. Bockes, C. L. Allen and James, Justices.] THE PEOPLE vs. IMLAY. The act of April 8, 1851. relating to life insurance companies does not pro- hibit any citizen of this state from applying for insurance to a foreign company which has not complied with the act, on his own account ; nor from doing so by his attorney ; nor from receiving the policy here, by mail, when issued in another state ; nor, as a consequence, from receiving it here through his at- torney. But it prohibits the agent of a foreign company from making such delivery. The act does not attempt to prevent a foreign insurance company which has fail- ed to deposit the security required to be given by it, from insuring our citizens ; nor does it impose a penalty upon an agent of such a company for acting for it, if he acts out of this state. Signing a policy in Philadelphia, by an insurance company located and doing business there, and sending it to the applicant, or the attorney of the appli- cant, in New York, is not a violation of the statute. The prohibition is expressly limited to the acting within this state as agent of a foreign insurance company. And the act only intended it to apply when the actual agency was in this state, and the thing done was actually done in this state. It is not a violation of the act for a person in this state to act as attorney for an applicant to a foreign insurance company; provided the attorney is in good faith acting only as the attorney of the applicant, and not as the agent of the company, under cover of an attorneyship for the applicant. The act of April 8, 1851, was not a violation of the article of the constitution of the United States by which the citizens of each state are entitled to all the privi- leges and immunities of citizens in the several states. An incorporated company is not a citizen, within the meaning : f that section (Const, art. 1, sec. 1.) NEW YORK MAY, 1855. (59 The People v. Inilay. MOTION by the defendant, for a new trial, upon a case. The people brought their action against the defendant, for a violation of the " act in relation to all insurance companies, transacting the business of life insurance within this state." (Laws 1851, ch. 95, p. 167.) The 3d section of the act relates to agents of foreign companies ; placing them on the same basis as domestic companies, and is as follows : " It shall not be lawful for any person to act within this state, as agent or otherwise, in receiving or procuring application for insurance in, or in any manner to aid in transacting the insurance business of any com- pany or association, not incorporated under the laws of this state, until he has procured a certificate from the comptroller, that the company or association, for which he acts, has complied with all the provisions of this act." On the 25th Sept. 1851, the defendant was secretary of the United States Insurance, Annuity and Trust Company, located at Philadelphia. This company did not comply with the act of 3851, by depositing $100,000 with the comptroller, as security for the policy-holders. At the time of the passage of this statute, this company were carrying on business in the city of New York, having their of- fice in Nassau street. They had a sign, with the name of the company, over the door, which remained up when the policy in question was issued. It was 'alleged, on the part of the de- fendant, that this office was only kept open for the receipt of premiums on old policies, the defendant, as secretary, or Mr. Fisk, the actuary, remaining in charge of it ; but it appeared that applications for policies were made by four persons, at this office, which were received by the actuary of the company, and some of the policies were delivered to the parties by the de- fendant. The applications were received by Mr. Fisk, who pretended to act as the agent of the parties ; but it appealed he was, meanwhile, the actuary of the company ; did not re- ceive any compensation from the applicants, was supplied by the company with printed powers of attorney in blank, indorsed on the applications for insurance, designed only to be used for this company. The defendant subscribed his name on the poli- cy as the "secretary or agent authorized to receive premiums." 70 CASES IN THE SUPREME COURT. The People v. Imlay. was at the office of the company in New York on the day on which the receipt for the money purports to have been signed by him which was indorsed on Kendrick's policy. After the passage of the statute, the defendant proposed to Huntington, in reference to continuing the business, " to go on, law or no law," and declared that " he would go on, law or no law." It was proven, that the written part of the policy was in the hand- writing of the defendant, as also his signature as secretary, and that the defendant knew the residence of the party, and that the policy was to be delivered in the city of New York. The cause was tried at the New York circuit, in April, 1853, before Justice EDMONDS and a jury. A motion was made to dismiss the complaint, on the ground that the evidence did not sustain the charge, which motion was denied, and the defendant excepted. In order to charge the defendant with Fisk's acts, in respect to this policy, the plaintiffs proposed to give in evidence the acts of the defendant and Fisk in respect to four other policies to other persons. The evidence Avas ob- jected to. admitted, and an exception taken by the defendant. At the close of the testimony the defendant asked the court tc charge the jury, 1. That unless the jury found that the United States Insurance, Annuity and Trust Company, did business as a Life Insurance Company in New York, on the 25th of Sept. 1851. the plaintiffs could not recover. 2. That unless the jury found that the defendant acted as secretary of said company in >t liable. IV. The court, after reading to the jury the section of the statute, under which the action is brought, properly submitted it to the jury to find whether the defendant had acted in viola- tion of its provisions. V. The evidence as to the other policies was properly admit- ted. It was competent to show that the defendant did not act in good faith. Where the question of the intent of the party, in the particular transaction with which he is charged, is involved, cotemporancous acts, similar to the offense charged, are cornpe- NEW YORK MAY, 1855. 75 The People v. Tmlay. tent to establish the quo ammo. Such is the rule in cases of fraud, libel, slander, and in the criminal courts, where the in tent with which the party acted in the particular transaction is the gist of the offense. (Jackson v. Tit/imermaii, 12 Wend. 290 1 Phil Ev. 472, 475. 1 Cow. $ HllVs Notes. 326, 328.) VI. The charge was. in all respects, correct, and the plaintiffs are entitled to judgment upon the verdict. By the Court, MITCHELL, P. J. This action was brought against the defendant under sections 3 and 9 of the act of 1851, O ' ch. 95. The complaint alleged that the defendant, at the city of New York, on the 25th of Sept. 1851, acted as secretary of the United States Insurance, Annuity and Trust Company, the said company as such doing business as a life insurance com- pany in said city, and that the defendant, while so acting, issued for said company for a premium then and there paid by one Kendrick, a policy of insurance on the life of Kendrick ; and that the company had not deposited with the comptroller $50.000, and had not procured a certificate from the comptroller that the company had complied with the provisions of the law of 1851. The evidence showed that such a policy was issued, at the date specified, by the above named company, and that the com- pany had not complied with the law. That law makes it un- lawful for any person to act within this state, as agent or otherwise, in receiving or procuring applications for insurance, or to aid in transacting the business of any company not incor- porated under the laws of this state, until he has procured the certificate of the comptroller as above mentioned ; and every violation of the act subjects the offender to a penalty of $500, to be recovered in the name of the people, by the district attor- ney of the county in which the company or the agent is " situ- ated ;" and in case of non-payment, the act declares the party offending shall be liable to imprisonment for a period not ex- ceeding six months, in the discretion of any court having cog- nizance thereof. When parties know what the law is and mean to violate it, 76 CASES IN THE SUPREME COURT. The People v. I inlay. they endeavor to conceal their purpose by acting by indirect means. The plaintiffs' theory was that the defendant had ar- ranged or conspired with Fisk, that they should procure insur- ances in the city of New York for the company, of which he was secretary, in violation of the law. The defendant, to meet this charge, endeavored to show that it was Fisk who acted in this city, and that Fisk acted, not for the company, but as the special attorney of persons applying to him. The question then was, with what object, what motive, were Fisk and the de- fendant acting. Was it with the objett and motive of being the attorneys of the applicants, or with the object and motive of getting policies for this particular company^. If the last were the motive, then in fact they were the agents of the company, although they should attempt to disguise it by taking special powers of attorney from each applicant. The plaintiffs accord- ingly proved that before the act of 1851 was passed, Hunting- ton had been the agent of the company, and that he left the company because they would not comply with the law, and that the defendant, the secretary of the company, proposed to him to go on, law or no law, and he refused. That Fisk had been actuary of the company ; that the company continued Fisk in their employ in an office in this city, of which they paid the rent, and continued his salary of $500 a year ; that Fisk had blank forms ready for the appointment of a person as attorney, to be signed by applicants for insurance ; and that he procured this policy and three others, but did not act as attorney for any one applying to any other con/pant/ ; that he received his salary, as above stated, from the company, but no compensation from the applicants. The proof that Fisk acted as attorney for a single individual would be very slight evidence that the act- ing as attorney was a cover, and that he was in reality the agent of the company ; but if it could be proved that he acted in a hundred instances as such attorney, and always on policies to be issued by this company and by no other, it would be in- disputable evidence that he was in fact the agent of the com- pany. The proof that he so acted in other instances than that of Kendrick was admissible, although the proof is not as strong NEW YORK- MAY, 1855. 77 The People v. Imlay. as in tlie case supposed. The facts above stated showed such a connection between Fisk and Imlay, and such a purpose of Imlay to have some one to act as agent of the company, "law or no law," as to justify a jury in finding that Fisk was acting in com- bination with Imlay, or Imlay acting as agent of the company, through him. This was strengthened when it was shown that when Fisk went to Philadelphia Imlay took his place, and re- ceived the premiums in two or three other cases from the appli- cants in this city. If it had been proved that in 50 other cases he had thus received premiums in this city, the concert between him and Fisk that Fisk should act for him, or that both should be agents of the company, in this city, would have been clearly made out. In the case of Kendrick, Fisk received the money in this city and sent it on to Philadelphia and Imlay indorsed the policy acknowledging the receipt of the premium on the 19th or 25th of Sept. 1851. The judge was requested to charge as follows, but refused : 1. That unless the company did business as a life insurance company in New York on the 25th of Sept.- 1851, the plaintiff could not recover. This made the precise day material, and required that the company, and not the agent merely, should do the act in New York. 2. That unless the defendant acted as secretary of the com- pany, in New York, at that time, the plaintiff could' not re- cover. This made the time material, but was intended to have the court decide that as the complaint alleged that the defri d- ant acted as secretary of the company, and while so acting is- sued the policy, the proof of his acting as secretary in New York was essential. The complaint would be complete if it omitted the description of the office of the defendant, and mere- ly alleged that he issued the policy in this city for the company. The same answer may be made to the 3d request. 4. That unless the policy was issued by the defendant for a premium paid to him by Kendrick in New York, in Sept. 1851, the plaintiffs could not recover. This made the time material, and assumed that the defendant, if in New York, could not act oy his partner or agent in New York. 78 CASES IN THE SUPREME COURT. The People v. Imlay. 5. That if the defendant was not a resident agent in Jie city of New York he was not liable. There is no such term as resi- dent in the act. The word situated, as applied to agent in section 9, refers to the place where the agent is when he does the business or act complained of the place which he makes his office for that business. 0. That unless the company had an agency in the city of New York, the plaintiffs could not recover. It was enough if the defendant acted as agent of the company, although the company had no person avowing himself the agent of the com- pany, or no place belonging to it. This last would be the meaning of the terms used an "agency" of the company. 7. That signing a policy in Philadelphia and sending it to the applicant, or the attorney of the applicant, in New York, is not a violation of the act of 1851. This probably was the question on which the case turned. The judge read the section of the act, and told the jury it was for them to decide whether the defendant had acted in this state in issuing the policy to Kendrick. This seems to have been a compliance with the plaintiffs' request to charge. But a majority of the court is of opinion that it was so indefinite that it left the jury under a mistake, when they ought to have been specially instructed as to the law, and allowed them to infer that if the defendant had no connection with Fisk, and issued the policy in Philadelphia, and in good faith sent it on from there to Kendrick or to Fisk, supposing Fisk to be the attorney of Kendrick and not the agent of the company, still the defendant would be liable, on the idea that his sending the policy to New York was acting here. The jury may possibly have been so misled, as the coun- sel for the plaintiff, at the trial, (as he did also on the argument at general term.) insisted that the last view of the law was cor- rect, and that the defendant was liable although all he did was done in Philadelphia, if he sent on the policy from that city to this. There are cases in which one sending a letter or other instrument from another state into this state would be liable to the criminal law of this state. But these are not cases in which our law recognizes the act as lawful and valid if done in another NEW YORK MAT, 1805. 79 The People v. Iralay. state, and only aims at its prohibition in this state. The act of 1851 does not mean or attempt to prevent an insurance compa- ny in Philadelphia from insuring our citizens ; nor does it pun- ish an agent of those companies for acting for them if he acts out of this state. It uses a marked and peculiar precaution in the choice of language to show its intent. It is, that "it shall not be lawful for any person to act within this state as agent or otherwise, in receiving applications for insurance, and to aid in transacting the insurance business of any company not incor- porated under the laws of this state, until " y the authors of the declaratory act of 1855. That act, declar- ing, as it did. " the true intent and meaning" of the act of June, 1853, and of that act only, merely directing what construction should be given by the courts to an act which, in effect, had long since been repealed, and left the general law of July, 1853, un- touched, to be applied to " every company" alike, whether organ- ized under the old system of special charters, or the new system of free trade. And why should any distinction be made between them ? Especially, why should the two particular companies in question be taxed only on $100,000 each, while every other company in the same city, and standing on the same footing, is assessed on its " reserved funds ?" The constitutionality of such legislation even if expressly intended and clearly expressed might well be doubted. But the coxirt will not presume that the legislature intended to violate either the' spirit or letter of tae constitution, and will not, therefore, give to their acts a con- struction which would imply such intention. Equality of taxa- tion is a fundamental principle of our government, which no legislature, in the absence of the most explicit provisions, will be presume'd to have intended to violate. The assessors, it seems, in the case of the present company, misled by the peculiar wording of the act of June, 1853, taxed them only on $100,000. But the tax commissioners, on reviewing the assessment roll, added $900,000, making the amount one million instead of one hundred thousand ; and the board of supervisors subsequently, on the application of the company, refused to restore the original assessment, and confirmed the judgment of the commissioners ; upon which the company sued out a mandamus to compel the supervisors to reverse their action in the matter ; and the case now comes up on a demurrer to the answer of the supervisors ; or rather, on an appeal to the general term of the court from the decision of the judge at special term, sustaining the super- visor q. v\ bal. iLexi, we are to inquire, are the powers of the tax com- kiiisb)onei.!? .- Can they, in such cases, correct the errors of the NEW YORK MAY, 1855. The People v. Board of Supervisors of New York. ward assessor? 1 They have power, it is said, to add to the as- sessment roll ana assess any real or personal estate, liable to taxation, which may not have been assessed, but they cannot in- crease the valuation as made by the assessors. As to real estate, which is always specific, the rule may be so. Where the local officers, after inspecting a particular house and lot, put upon it a certain value, there may be some reason, though none of a very striking character, for not permitting the commissioners to raise such value. But what reason is there for such a restriction in the case of personalty 1 The assessors, in estimating the tax- payers' personal property, do not value any particular stock of goods, or household furniture, or bonds and mortgages, but personal estate generally. When, therefore, in such cases, they put the amount too low. it is invariably, almost, an error not of undervaluation but of omission. And it is conceded the power of the tax commissioners, however limited in other respects, ex- tends at all events to supplying the omissions of the ward offi- cers, whether the property omitted be personal or real. Now the supervisors in their answer allege and the allegation is ad- mitted by the demurrer that in the assessment of the personal property of this company, there was an omission, among other items, of $2,343,681 in bonds and mortgages, which were "part of the capital, surplus profits, or reserved fund of the company," and which the assessors did not set down or estimate, in conse- quence of the erroneous impression they labored under, not as to the value of these securities, but as to the law of the state, applicable to them. They mistook the law, and under that mis- take, inserted only the nominal capital of $100,000. In other words, they omitted the " surplus reserved fund :" they 'omitted it altogether. Was it not then both the right and the duty of the' commissioners to supply the omission 1 The only error of the commissioners, as it seems tome, an error, however, of which the relators have no reason to complain, was r not in adding, but in adding too little, in adding less than one million, instead of more than two. It has been said that if the commissioners are allowed to pos- sess this power of raising the amounts set down by the assess- VOL. XX. 12 90 CASES IX THE SUPREME COURT. The People v. Board of Supervisors of New York. ors, great injustice may at times be done to particular individ- uals, as no provision is made by law for giving notice of the contemplated augmentation. And does not this objection apply with equal force to the addition of an omitted house, as to the addition of an omitted mortgage? Suppose a case in which the assessors should have omitted wholly the personal estate of a particular individual; may not the commissioners insert it? Even the counsel of the company at first conceded that in such a case the commissioners might insert the personalty so omitted. And yet the argument, from want of a notice, is the same in both instances. All that can be said properly on this point is that the statute is defective, and that the defect, although rei*- edied in actual practice by the commissioners, should be cor rected as matter of right, by the legislature. The relators, it appears, had notice. They argued before the commissioners, and they appealed to the supervisors. They were he?frcl by both, and were not considered as wronged by either. And such. too. after full hearing, was the opinion of the special term. There is clearly no equity in the relators' case. They seek to establish for themselves a special privilege, at the expense of the rest of the community, and incompatible with the equal rights of all other companies, but one, engaged in the same busi- ness. Such claims, to be available, must be clearly made out ; and statutes passed to sustain them (if so passed at all) being at variance with common right, are to be strictly construed. Sc construing the statutes cited by the relators, the position taken by them is as untenable in law as in equity. Judgment of special term affirmed, with costs. [New YORK GENERAL TERM, May 7, 1855. Roosevelt, Clerke and Cowles, Justices.] NEW YORK MAY, 1855. 9 \ WHITE vs, BULLOCK. It is a matter within the jurisdiction of the surrogate on the final settlement of an estate, to find what each executor is debited and credited for; also what they have received and paid out jointly ; in order that he may deter- mine what each is liable for. Where there are two executors of an estate, one active and the other inactive, the latter will not he held accountable for the acts of the former, if he has reason to believe that his co-executor is acting prudently, and according to law. The surrogate is therefore bound to inquire whether one or both are ac- countable. And the decree made by him, upon such accounting is conclusive, between the executors, as to the amounts received and paid out by each, and caiAiot be contradicted by the sworn accounts of the executors, producer! by them upon the accounting. Commissions are to be divided between executors according to the services ren- dered by them respectively ; and in the absence of any other proof in respect to such services, the share of each is to be determined by the amount of mon- eys stated in the surrogate's decree to have been received and paid out by tho executors, respectively. . Justice requires that when an executor has done nothing, and has borne no re- sponsibility, he shall not share in the commissions. The act of 1849, (Laws of 1849, ch. 160,) is in accordance with this principle. It requires tho surrogate to apportion the commissions among the executors ac- cording to the services rendered by them, respectively. A PPEAL, by the plaintiff, from a judgment entered at a spe- .iJL cial term. The plaintiff and the defendant were the exec- utors of John M. Mounsey, deceased. The plaintiff sued for one half of the commissions allowed by the surrogate on the final settlement of the accounts of the executors ; he contending ' O that he was entitled to one equal half of the commissions, and the defendant insisting that he had incurred no responsibility and rendered no services, except in a joint liability for $121, and so was entitled to commissions only on that sum. Tho plaintiff produced the decree of the surrogate, on the final ac- counting of the executors. That expressly declared that the executors were debited with $121, the inventoried effects of the personal estate, and that they were allowed $121 by payments towards funeral expenses. This sum was charged and credit- ed to both executors. It also declared that the residue of th 00 CASES IN THE SUPREME COURT. White v. Bullock. moneys received, amounting to $10,233.59, except the above $121, were received by. and debited to, Robert Bullock alone and not jointly by him and Charles L. White, his co-executor. The items of that residue showed that the moneys were received by the defendant alone, for rents, and the proceeds of the sales of real estate since March 1, 1841, the date of the death of the testator, and from the estate of J. M. Todcl, of whom Bullock was a surviving partner. The decree also declared that the payments made, except the $121, and which with the deduction of that sum. amounted to $4656.67 " \vere paid by and are credited to Robert Bullock alone, and not jointly by liim and Charics L. White his co-executor ;" and then striking a balance it declared the total cash in hand to be $5807.78 which it de- clnred to be in the hands of Robert Bullock. It afterwards, n-eiting that the amount in the hands of Robert Bullock, one of paid executors, was $5807-78, ordered that he pay, out of this SUHI, various sums, covering, with the commissions, the whole $5807.78 in the hands of this defendant. The directions as to commissions were that he retain the commissions of said exec- utors, being the sum of $202,33. The plaintiff then offered in evidence a certified copy of the accounts, showing receipts and disbursements by White and Bullock as executors of Mounsey, and on which the surrogate's decree was founded, in order to show thereby what each exec- utor received and what each paid out on account of the estate, and thus to show what commissions the plaintiff was entitled to. The judge rejected the evidence, and the defendant except- cd. These accounts were sworn to by both executors ; each swearing that they were just and true and contained a true account of all moneys received by him as executor. The ac- counts contained a number of schedules, and several of them were headed "schedules of moneys from, &c. by Robert Bullock and Chsirles L. White executors." These accounts were a part oniy of the evidence before the surrogate ; for notwithstanding tlu-ir production before him, he found precisely what each exec- utor n-ceived, and what each paid out, and what each wad NEW YORK MAY, 1855. : :>o White v. Bullock. debited ami credited for ; and what the two toge'Li^i recii; 7 :,.! and paid out and were debited and credited for. The cause was tried at the New York circuit in June. 1 ?.''',', before Justice MITCHELL and a jury, and a verdict was ren- dered in favor of the plaintiff for $3.03 damages ; and in favor of the defendant, for the costs. A. Thompson, for the appellant. I. The exclusion of the executors' sworn account by the judge as testimony was erro- neous. It was competent evidence, and should have been ad- mitted. The surrogate's decree was not conclusive as between the executors. A surrogate's decree is only conclusive, on the final accounting, of the following facts, and no others. (2 R. S. 93. 65. Pres. Bank of Ponghkeepsie v. Hasbrouck, 2 Seld. 216, 221.) (1.) That the charges in the accounts for payment to creditors, legatees, next of kin and for necessary expenses arc correct. (2.) That the executor or administrator has been charged with all the interest with which he is chargeable upon such moneys received by him as are embraced in his account. (3.) That the moneys stated in the account as collected were all the moneys collectable at the time of the settlement, on the debts stated in the account. (4.) That the allowance for de- crease, and the charge for increase, in the value of any assets, made in the account were correctly made. (2 R. S. 93. 5 (> ., statute 1817. Pres. Bank of Ponghkeepsie v. //i/sirrr.-.'- . 2 Seld. 216, 221.) (5.) The plaintiff, as executor, had no :o;;U to appeal from the surrogate's decree for not stating ho*v &,$ commissions due the executors should be divided between i.hr.m. (6.) It is clear, then, that in this action, if the decree was; iio ; conclusive, the evidence offered by the plaintiff was improper'.-:/ excluded on the trial. II. The judge erroneously refused to charge that the plamti" was entitled to one half of the commissions, $202.33, named in the surrogate's decree, with interest from May 5th, 184? (1.) The commissions are called or denominated in the deciet- the commissions of the sx editors, which the defendant it> pei- CASES IN THE SUPREME COURT. w C White v. Bullock. ir::'-'^-2 ')j : :.:- decree to retain. (2.) The presumption cannot arii'C that the commissions belonged to one of the executors. T*~vsti thsj" are called the commissions of the executors simply because in paying the money in his hands he is permitted to retain them. (3.) The burden of proof on the face of the de- cree lay upon the defendant, to show that he was entitled to the wh:>le of the commissions. (4.) According to the law, the com- missions belonged to the executors jointly and in equal propor- tions, and even the surrogate had no right to divide them. The surrogate now has the right. (2 R. IS. 93, 58, amended by Laws N. Y. 1849, ch. 160, 1, p. 218, 219.) (5.) If the sur- rogate could have made a difference between the executors, he did not do it, and in such case the presumption of law would be that the commissions should be equally divided. (6.) The sur- rogate's court is a statutory jurisdiction, and has no common law or other powers, except those conferred by statute. (Dakin v. Hudson, 6 Cowen, 221. Bloom v. Burdick, 1 Hill, 130. Cor- win v. Merr iff, 3 Barb. 341. People v. Barnes, 12 Wend. 482. Dakin v. Demming, 6 Paige, 95.) III. The judge's charge was erroneous in holding that the surrogate's decree not having passed on the amount of the commissions to both executors, the amount must be divided between them in proportion to the services rendered by each executor. (1.) This charge is clearly inconsistent with the de- ' nion that the sworn account of the executors could not be (i'*'.n in evidence, to show what services each executor rendered > -i K-, 3 administration of the estate. (2.) It is clear the judge h-C'ki. -he surrogate's decree conclusive, both as to the amount of /ctnmissions and as to the services rendered by them . ra also perfectly evident that the decree did not intend to Sfttlie the rights between the executors. (4.) The decree can- : <>t legitimately have any such effect given to it. 1"V. The judge's charge was incorrect, in stating to the jury tfjnt. the plaintiff, as co-executor, was not equally responsible *ith the defendant for all sums of money received by the de- bndant. for the estate. (2 Wins, on Ez'rs, 1119, 1120.^ NEW YORK MAY, 1855. White v. Bullock. V. The judge should, as requested, have charged the jury that an executor was always accountable for money received by his co-executor, if he aids or assents to it being received by the co-executor, or if it be in his power to prevent him. from receiv- ing it. J. N. Platt. for the defendant. I. The great point in the case is. whether White, who did nothing over and above bein^ engaged with Bullock in receiving and paying 121 dollars, is to receive one half of the commissions on what Bullock received and paid over, without having expended any labor thereon, or incurred any liability therefor, 'or received or paid over r.ny part of it. The judge decided this point correctly when h^ charged " that amount must be divided between them in pro- portion to the services rendered by each executor." THs charge was too much in favor of the plaintiff, because the sur- rogate, by his decree, had decreed that Mr. Bullock should re- tain these commissions. But laying this decree out of viev, r , the judge was right in his law, and he is supported by the fol- lowing cases : The statute (2 R. S. p. 93, 58) provides for the executor's commissions not for services or responsibilities, but for moneys received and paid over, whatever may be the equities or justice of the case, or the labors of the executors ; he or they receive nothing but for moneys passing through their hands. Let us examine the law on this subject. The revised statutes do not create the right to commissions, they merely put the law in a legislative form. Laws of 1817. p. 292, directed the chancellor to fix -the rate. 3 John. C-h. (>. 630, fixes the rate. 2 R. S. p. 9. 58 adopts it. ( Grant v. Pride, 1 Dev. Eq. 269. 2 Barb. Ch. Rep. 438. Dayton's Surrogate, p. 227.) II. With the exception of the 121 dollars, all the business was done by, and all the moneys were received and paid ever by the defendant. The decree says all the assets are chargeable to R. Bullock, and are $10,233.59. All payments were made by him, and are $$4,777.67, leaving him chargeable with $5,807.78, out t,,j CASES IX THE SUPREME COURT. White v. Bullock. of which he is directed to retain the executor's commissions and pay various creditors, including himself. III. The judge was correct in ruling out the petition. Tho decree, which was final, adjudicated the rights of the parties, and the object of introducing the petition is to contradict the decree, and therefore clearly inadmissible. But on examination tbe petition does not contradict the decree, and is entirely con- o e- Y,i've that the active executor was doing all this prudently and ling to law, the inactive one would not be accountable for the moneys thus received by his co-executor. The surrogate was therefore bound to ascertain how these facts were, before lie could decide whether his decree should be that Bulioc?: NEW YORK MAY, 1855. 97 White v. Bullock. alone should be accountable for the balance which was found in his hands, and should pay the same, or that he and White were both accountable for it, and should pay it. He did pass on tnc question, and declared that White was accountable with his co- executor for the $121 alone, and that no debt was discharged by the payment of funeral expenses, and that the rest of the moneys were " received by and debited to R. Bullock alone, and riot jointly by'him and C. L. White, his co-executor." The ne- gation " not jointly by him and C. L. White his co-executor," was added to prevent any doubt as to the extent of the acts of each, and of the liability of each. The decree in conformity with this makes Bullock alone liable for the money thus re- ceived. The plaintiff receives the benefit of this decree is exonerated from liability to the creditors for any part of the moneys thus charged to Bullock, and which may still be a valu- able immunity to him (if. as intimate^ Bullock has failed to pay all the creditors) and acquiesced in the decree, and founds this very claim upon it, and still seeks to disprove the most important parts of it. This is as unjust as it is contrary to legal principle. If the decree is not conclusive between these parties as to the amounts received and paid by each ; then the defendant may turn around and sue the plaintiff for half of the $5807.78 with which he is charged, and produce these veri- fied accounts, according to his views, as an admission by White that he had received half of the money. But the accounts, if admissible as evidence, would not establish the facts for which they were offered. The two executors were together to render accounts of all moneys received by both or either of them. In making out the accounts, no question being then raised as to the extent of the separate or joint liability of each executor, the accountant might well entitle them schedules of moneys received by Robert- Bullock and C. L. White, executors ; for then the main thing was to show what moneys were received for the estate and paid out for the estate, and not how far each executor was liable, and he would regard the executors and the estate as synonymous. Each executor would also swear that the schedules contained a true account of all moneys paid and VOL. XX. 13 9y CASES IN THE SUPREME COURT. AVliite r. Bullock. received by him. and so far only did he verify it. If they con tinned all that he received and all that he paid out, although they contained much that he never received but which his co- executor received, and much that he never paid out, but which his co-executor paid out, his affidavit was true that they were a true account of all moneys paid and received by him. He did not swear that the accounts were true as to the persons l>y whom they were received. The schedules contain the items of the moneys received and paid out by Bullock as surviving partner of Mounsey - |02 CASES IN THE SUPREME COURT. Hogan v. DC Peyster. man 7 , 1837. the defendant was appointed administrator ciun tes- hunt-tilt) aimexo. (2 R. S. 72, 22 ; vol. 2, p. 258, 22. 4/A L Con Id in, v. Eycrtorfs AdnCr, 21 TFe/?r7. 430; <& C. o/?, apical, 25 tW. 224. 8 Pa^c, 310, 311.) In the opinion, in the case of the bill filed for a construction of this very will, the chancellor said, " The administrator with the will annexed is probably en- titled to execute all the trusts of the will, in the same manner as if he had been named therein by the testator, as the executor and trustee." But inasmuch as there might be some doubt whether, as such administrator, he could convert the real estate into personalty, he provided, in that decree, for the defendant's appointment as such trustee. The chancellor, in 1840, in the case of Egertorfs AdmJr v. Couklin, 25 Wend. 235, before cited, says, that in the above remark in 8 Paige, he referred " to the right of the administrator, with the will annexed, to exe- cute the trusts of such will in relation to the real estate of the decedent." By the general law, therefore, applicable to admin- istrators with the will annexed. (21 Wend. 433, and pages cited by Cowen : } and by the above statute, the defendant, on the 4th February, 1837, when he received the letters of administration cum, became, at least as far as regarded the personal estate of the decedent, vested with all the rights and powers, and sub- jected to all the duties and responsibilities of an executor and trustee. He was, therefore, unless otherwise excused, under the duty, immediately after Feb. 4, 1837, of selling the stock of this national bank, the charter of which had expired a year before. He is, therefore, we say, liable for the difference be- tween its then or highest value afterwards, and the sum for which lie subsequently actually sold it. This amount may be the subject of reference, if the principle is decided. Then, on 8th June, 1840, the final decree was made in the case commenced by the defendant, to obtain a construction of the will ; and. as doubts had arisen as to the defendant's power as administrator cum, to convey real estate, he was then appointed trustee under the will. Now, if there could have been any doubt as to the de- fondant's duty as administrator cum, in reference to this bank stock, there could certainly be none, under his appointment aa NEW YORK MAY, 1855. Hogan v. De Peyster. trustee, on and after June 8, 1840. Besides, additional obligations were imposed on him. by the request of Mrs. Hogan to him t > sell at different times. Now what are the defendant's alleged excuses or defenses ? 1st. He says the testator, by his will, left it " to the discretion of my said trustees to suffer such part of my personal estate as is now invested in bank stock to remain in its present state so long as they may deem it most for the interest of my family." We answer : (1st.) That this Avas a discretion which the testator chose to bestow upon the three persons he had named as trustees. It was not a discretion that attached to the office of trustee, whoever should hold it. Besides, the obligation to sell, attached to the defendant as administrator cum, before his appointment as trustee. 2d. But this bank stock did not re- main in the state in which it was at the testator's death, after the expiration of the charter of the national bank, and espe- cially after it became converted into the stock of the state insti- tution of Pennsylvania. The testator died 28th January, 1836, the will having been executed seven years before, to wit, 22d July, 1829. The words were really written in 1829, though they take their legal date and existence January 28, 1836. The charter of the bank expired March 4, 1836, and the defendant Avas appointed administrator cum 4th February thereafter. When he took this administration, therefore, that part of the testator's estate Avhich was invested in the stock of this bank, AA'as not in the same state it was in at the testator's death. Even, therefore, if the discretionary clause of the will applied to the defendant, in his character of administrator cum, yet he could derive no excuse from it for not selling the stock imme- diately upon receiving such letters, because of the great change which had taken place in the investment. The testator left it a productive stock of a living corporation. The defendant found the charter expired, and the corporation defunct. Not only this, but the testator left it invested in the stock of a national bank, and the defendant, as administrator, found it changed into the stock of a state bank, and allowed it to remain there. The testator left it in a sort of public funds, and the defendant permitted it to enter and remain in a private corporation. The defendant says ]04 CASES IX THE SUPREME COURT. Ilo^an v. De Peyster. that the stock was specifically bequeathed by the will to the trustees named therein, in trust for the uses and purposes therein mentioned, and the defendant, as administrator, had no power to sell. (1.) These trustees renounced. The defendant was appointed administrator cum. This was with all the pow- ers and obligations of such an administrator generally. He was then either trustee to carry out the will, which directs the con- version of all his estate, real and personal, into money and pro- ceeds invested ; or, as administrator cum, he was, in the exercise of the duties of that office, obliged to call in this invest- ment. According to the defendant's doctrine, inasmuch as. the whole estate was thus bequeathed, the administrator cum had nothing to do, and was a useless appurtenance. The chancellor, in the case before cited, says : " The administrator, with the will annexed, w r as probably entitled to execute all the trusts of the will, in the same manner as if he had been named therein by the testator as the executor and trustee." By the renuncia- tion of the trustees, the estate did not vest in them ; and all the duties of exercising diligence to secure the estate, required of executors and administrators generally, devolved upon the defendant when he was appointed administrator cum. (2.) If there were any force in this idea, advanced by the defendant, it altogether ceased when he was in point of fact appointed trus- tee in June, 1840. (3.) The defendant says, that he permit- ted it to remain invested as aforesaid, with the knolwedge, approbation and consent of the complainant, Wm. Hogan, who acted, as defendant believes, for himself and wife, ana guardian of the other complainants. We reply : (1st.) There is no evi- dence of this no proof, any where, that either Wm. Hogan, Sarah Ilogan, or either of the plaintiffs, assented to the continu- ance of this investment in this stock. (2d.) But if there were any evidence of any assent of said William Hogan to the con- tinuance of this investment, it would have no effect in excusin^ * O the defendant, or lightening his responsibility. The defendant was the administrator, and bound to do his duty. Wm. Hogan had no authority to assent for Mrs. Hogan, or the infant chil- dren, lie was not general guardian of the children, but only ad NEW YORK MAY, 1855. ]Q5 Hogan v. De Peyster. lilam in the suit for construction of the will. The defendant says that the plaintiffs are barred from any recovery herein, by reason of his various accountings before the master. Now, the evidence on this subject is : The report of Master Codwise, which was merely on an order requiring him to divide and dis- tribute the property in his, defendant's, hands, amongst the heirs. It had not the slightest connection with any liability the defendant might have theretofore been subjected to, by reason of any neglect of duty. The other accountings were merely of incomes. And the final accounting was also only of income. It was not an accounting of any damages to which the defendant might be liable for neglect of duty. That was not within the province o'f the master. It is not pretended that any thing was ever paid therefor. If he was ever liable, nothing was done on these accountings, to the adjudication, payment, or waiver of any such demand. They never went beyond the accounting for moneys actually received and paid out, or invested, or pretended to be invested, within the respective periods. They took no cognizance of the inventoried assets of the estate, or the value O ' of stocks, or the liability of the administrator cum, or the trus- tee, growing out of omissions or commissions. i Murray Hoffman, for the defendant. I. It is conceded that the defendant had no power in the premises, so long as his character of administrator ad colligendum existed. II. It was not in the power of the defendant, as adminis- trator with the will annexed, to sell the stock. It was only when he was appointed trustee, under the decree of June 8th, 1840, that this power was acquired. In the opinion giyen by Mr. Hogan, October 21st, 1840 this is clearly and positively insisted upon. III. But supposing that, as administrator, the defendant pos- sessed ample power, he was fully justified in omitting to sell the stock, and holding the new stock in the state bank, as its substi- tute. (1.) It must be carefully noticed that he did not do any act to effect a chan'ge or substitution of the stock. All that he did was so far to recognize it, as to receive the dividends which VOL. XX. 14 10G CASES IN THE SUPREME COURT. Ho-jan r. Do Pevster. were paid. And these were divided, and paid away among the parties entitled to the income of the estate. (2.) The suffering a substitution of the stock was a justifiable and proper exercise of the discretion given to the trustees by the Avill, or necessarily vested in them by the law. The second clause of the will au- thorizes the trustees to suffer such part of his personal estate as was invested in baak stock to remain in its present state, so long as they should deem it for the interest of his family. It is matter of history, that the failure of the bank to obtain a recharter was known as matter of fact, and certainly before the testator's death. That identical stock could not be expect- ed to remain in its then state. The testator had numerous parcels of stock of other banks. Hence this clause of the will is either wholly inapplicable, or it sanctions the continuation of an investment in bank stock at the trustees' discretion. But the plaintiffs in their points insist, that the discretionary power therein given, was vested in the" three named trustees, and did not attach to any new trustee. Admitting this, it follows that the power did not vest, and the clause is not applicable to the defendant, as administrator with the will a.nnexed. His duty and liability are to be determined upon general principles, irre- spective of the clause, which did not apply either to him, or to stock situated as this stock was when he became such adminis- trator. Was it, then, in the exercise of an honest discretion to leave the stock in the new bank? Most of the stockholders of the old bank took or retained the stock in the new. They became stockholders in the new bank without any action of their own, but by force of the act of Pennsylvania merely. The late Mr. Watts, described by the witness Kearney as a very shrewd man in stocks, retained the shares in the new bank. Prior to the suspension of specie payments, and from March to July 1836, the market value of the state bank stock was from 120 tc 126. After the resumption in May, 1838, and from June tc July, it was 120 to 123. In November, 1839, the defendant considered the investment in such stock good, on behalf of his son, who took some under Mr. Watts, and wished not to sell The continuance of the stock in the state bank, was with the NEW YORK MAY, 1855. 107 Hogan v. De Peyster. approbation of every one interested who was competent to as- sent or approve. They were aware of it ; they received the dividends in the share of income which was divided among them, and allowed the defendant to pass his accounts before the surrogate, and before Master Codwise, without objection, protest or cavil. In October, 1839, a meeting of some of the parties in interest took place, when the propriety df selling the stock was discussed. One of the parties thought it ought to be sold. Mrs. Clendenning left it to defendant's best judg- ment. No one requested it to be sold. Mrs. Kearney states that she has heard the testator say he would not keep his stock if the charter was not renewed. This evidence was duly ob- jected to, and clearly is inadmissible. But it is singular, in- deed, that it was not communicated to the defendant, at that or some other meeting, as a strong inducement to operate upon him. The acts of the parties in 1840, after the decree of the court of chancery declaring the rights of the parties under the will, are of great importance. On the 27th of July, 1840, Mr. Ho- gan writes to the defendant, stating that by the decree in June preceding, he, the defendant, had now power to act in relation to the stock, which no one had before, and calling his attention to the point, whether it was stock of the old bank or of the new. Then followed the opinion of Mr. Hogan, carefully con- sidering the questions, dated the 21st of October, 1840, and the letter to the defendant of the 28th of October, 1840. The in- terviews and correspondence of the defendant with Dunlap and others, ensued. -The letter of Mr. Hogan of the 23d of Sep- tember, 1841, refers to them, and shows that, in the opinion of the counsel of the bank, the decision of the majority of the stockholders bound the rest, and effected the change of the stock. Then followed the letter of the parties to the defend- ant, and the consequent opinion of Mr.Wood. The failure of the bank was about August, 1841. During the period, then, from July, 1840, to December, 1841, there was an attempt zealously and wisely carried on to establish, that the stock in question was stock of the old bank, and not of the new, and a sale during such attempt would have completely defeated it ; and it is absurd JOS CASES IX THE SUPREME COURT. Hogan r. De Peystcr. to imagine that any one could have called for it. At a meet- ing stated by Mrs. Kearney to have taken place in October, 1840, the subject was discussed. One or two wished a sale none required it. It was plainly left to the judgment of the defendant, and his opinion was acquiesced in. No trustee, placed in an embarrassed position as to a claim very compli- cated, ever acted in better faith, or more honestly fell into an error of judgment. As to authorities, it is sufficient to re- fer for the general principle, to Story's Equity, &c. But the case of Gray v. Lynch, (8 Gill, 404,) is entirely decisive of the present case as far as the judgment of the highest court of another state can influence it. There the testator owned stock in the old Bank of the United States. He gave authority to vest in good and safe stocks. The executors and trustees as- sented formally to the substitution of the stock of the state bank. It was sought to make them responsible for the loss, and the court dismissed the bill. I will not quote the points or reasonings of the court. The case deserves full considera- tion. I close in the closing language of the opinion, " That if. under such circumstances, a trustee was made responsible by this court, it would deserve any other title than that of a court of equity." This bill should be dismissed with costs. Marsh, in reply. I. The defendant, in his first point, takes it for granted that we do not claim to hold him liable as admin- istrator ad cottigendum. This is not so, unless his duty as such administrator, to collect and securely hold the estate, was consistent with his permitting it to depreciate, become changed into worthless securities, and fade away. II. The defendant, in his second point, says that he, as ad- ministrator with the will annexed, had no power to sell the stock ; but he cites no authority for this proposition, resting it solely on his own assertion. But we have shown, in the plain- tiff's opening points, (point 2,) that the defendant had such power; that the general law recognized its existence in him ; that the revised statutes confirm it; and that the chancellor, in considering this very will, (8 Paige, 810, 311,) held that the NEW YORK MAY, 1855. ]0) Hogan v. De Pcyster. defendant, as such administrator, had power to execute all the trusts in the will, and consequently to dispose of the stock in question. The duty to sell is expressly enjoined by the will. This order and discretion is mandatory, imperative, absolute. It lies at the bottom of the whole matter, always excepting the legal obligation and duty of the administrator to realize effects, independently of any order. The defendant says that it is insisted in the opinion given by Mr. Hogan, that the ad- ministrator had not such power. This opinion, even if it were correct so far as regarded the execution of certain trusts, as- suredly did not apply to the ordinary action of the administra- tor for realizing and securing the estate ; that was his proper, independent duty, whatever disposition of such estate might afterwards be made. But whether or no, what has this opinion, gratis, in 1840, to do with the action or non^action, or neglect and default of the defendant, through 1837-8-9 ? He was al- ready in fault and delinquent, an afterward given opinion could not save him from the consequences of antecedent acts or omissions of acts. III. The defendant, in his third point, contends that even if he had the power, yet he was fully justified in omitting to sell the stock, and in holding the new stock in the state bank as its substitute. (1.) He endeavors to establish this point, in the first place, by saying that the defendant did not do any act to effect the change or substitution of the stock, except by recog- nizing it. This very recognition of the change or substitution thus admitted, was an adoption of it, equivalent to an actual original participation. It was not necessaiy that he should do any act towards effecting the change, to make him liable. A. neglect to do his duty, that is to say, to withdraw the funds from their precarious and unsanctioned position in the state bank stock, and invest them under the authority or in accord- ance with the principles of the New York courts, involved the same responsibility, as positive wrongful acts. ( Vide the au- thorities cited under Hie plaintiff's 2d point, viz : 1 Madd. 298 ; 5 Vesey, 839 ; 5 Pick. 96 ; 4 Barb. 626 ; N. Y. Legal Obs. 10, p. 321, an English essay, and cases cited therein.} I |0 CASES IN THE SUPREME COURT. . . Hogan v. DC Peyster. (2.) The defendant, in his second subdivision of liis third point, contends that the suffering a substitution of the stock was a justifiable and proper exercise of the discretion given to the trustees by the will, or necessarily vested in them by law. We have anticipated and answered this point, in the first subdivision of the plaintiff's second point of the opening argument. The defendant says, in sustaining this proposition, that the second clause of the will authorizes the trustees to suffer such part of his personal estate as was invested in bank stock, to remain in its present state, so long as they should deem it for the interest of his family. But it is obvious, that when it became convert- ed from the stock of the national institution, with all its guards and checks and guarantees, into stock of the state bank, which was obliged to abstract and contribute several millions of its capital to state improvements, by way of purchasing its char- ter, the said personal property, thus metamorphosed, did not remain in its then "present state." and the discretion of the defendant, if any he had, became annulled. That the stock in the national bank "did not remain in its present state," so as to come within the discretion given by the will, when it was changed into the state bank stock, is patent on the face of the charters. The first bank, with $35,000,000 capital, was held to the extent of one-fifth by the government, and had its aid and support. The second bank was not connected with the govern- ment, but was opposed by it ; and out of its capital was required to pay $2,000,000 bonus, to loan about $0,000.000 on disad- vantageous terms, arid to subscribe to a variety of companies of uncertain character and doubtful results, large amounts of stock, without any control over the action or management of such companies. No discreet man would consider stock in the second b;nik to be in the same state as stock in the first bank. The defendant argues that the testator knew, before his death, that the national bank had failed to obtain a rcchar- ter, and that consequently this particular clause of the will, giv- ing the trustees discretion to allow such of his personal estate as was invested in bank stock, to remain in its then present state., applied to other bank stocks, of which he held a number, and NEW YORK MAY, 1855. j } \ Hogan v. De Peyster. was inapplicable to this stock. It is evident that the discretion given by this clause of 'the will, does not cover the state bank stock, 'trie sale of which is absolutely within the terms of the positive order to sell. Of course, then, as the defendant shows that the clause of the will from which he seeks to draw his discretionary power has no application to the present case, the argument on that point would seem to be ended. The defend- ant says, that if the discretion did not vest in the trustee, the power to sell did not. But the order to sell is not a power, technically so called, or trust, or connected or entangled with any trust, but a naked order ; and its fulfillment gives the means to execute the trusts, and to administer the estate. Be- sides, the law, independent of the explicit order, devolved on the administrator the duty to sell. The defendant contends that it was in the exercise of an honest discretion to leave the stock in the new bank ; because most of the stockholders of the old bank took or retained their stock in the new. We reply : (1.) That the judgment of the old stockholders is not the criterion adopted by this court. If they had chosen to sell their stock and invest the proceeds in the personal obliga- tions of Mr. Biddle, it would have been no justification for a similar action by the defendant with these trust funds. (2.) Those stockholders who permitted their stock, by going into the new bank, to be devoted to the internal improvement of Pennsylvania, exercised their discretion very injudiciously ; for, as Mr. Robbins says, in the part of the evidence cited by the defendant, it " was very much to their subsequent regret." (3.) It was not a matter of discretion with the defendant at all. He was bound, with all diligence, to rescue the funds from the grasp of this cotton-speculating, bonus-paying, reckless-loaning institution of Pennsylvania, and invest them at home, according to the modes sanctioned by our courts. The defendant says that the stockholders of the old bank became stockholders in the new, without any action of their own, but by force of this act of Pennsylvania merely. We reply : (1.) The sanction of silence, and the subsequent recognition of the new bank, were tantamount to positive affirmative action, 1 12 CASES IN THE SUPREME COURT. Ilogan v. De Peyster. and charged with the same responsibilities. (2.) We L..IJ the defendant liable for not having interfered, affirmatively, and by withdrawing the funds, prevented them from passing into the state bank. The defendant says that the continuance of the stock in the state bank was with the approbation of every one interested who was competent to assent. We reply : (1.) If it was so it would not, surely, justify the defendant, so far as those who ^ere not competent to assent were concerned. No one had au- thority to assent for them. The order to sell the duty to tfell were imperative. The consent of Mr. Hogan that it should re- main, if given, which is denied, would not alter the duty of the administrator, or lessen his liability. He was not, by the terms of the will, a consenting party; his interests, too, were adverse to those of the cestuis que trust, and as for the infants he was only guardian ad litem, and not in rcm, not of their property interests. (2.) But we have shown, in the plaintiff's opening point 2, sub. 3, that the above proposition of the defendant is not correct in point of fact. The defendant alleges that the parties who were competent to assent were aware that the stock* had been changed. This would not justify the defendant as to those not competent to assent. The question is not what knowledge some of the cestuis qne trust may have had, but what was the legal duty of the defendant as such administrator and trustee. That duty did not depend upon the knowledge of those for Avhose benefit he held the fund. The defendant says that they received the divi- dends in the share of income which was divided among them, and allowed the defendant to pass his accounts before the sur- rogate and master without objection. The cestuis que trust received, doubtless, whatever the trustee chose to pay them as dividends ; but whether they knew where they came from, is neither apparent nor important. Such receipt did not adjudicate and settle any question relating to the defendant's negligence. The accountings, as by reference will appear, embraced only the moneys received from income, sales of lapsed shares of estate, and amounts paid in on account of principal for re-investment NEW YORK MAY, 1855. 1 ] 3 Hogan v. De Peyster. No examination was had as to the value of the investments of principal, whether made by the testator in his lifetime, or by the administrator since. Such accounting for 1000 shares of stock merely extended to the production of the certificates of stock. Nothing is therein stated as to liability -for not convert- ing into money at the proper time ; that was not the province of the master. Besides, the bill in this case was filed before such accounting, and the matter was before the court, and not before the master. The defendant urges that no trustee, placed in an embar- rassed position as to a claim very complicated, ever acted in better faith, or more honestly fell into an error of judgment. We reply : (1.) There was not the slightest complication about the matter. The defendant's duty was very plain no turnpike plainer; simply to sell the stock and invest the proceeds un- der the sanction of the court. It is the duty of the adminis- trator to gather into his hands and realize the personal property of the estate, so as to have it ready for distribution according to law or, application under a will. Kow simple is this prop- osition ; it is the fundamental principle of administration ; it is common sense, it is justice, it is law. Parties who are abso- lute owners of stocks, may indulge in speculative ideas of fu- ture and contingent values ; not so an administrator. (2.) It is not necessary to a recovery that the defendant should be proved to have acted dishonestly. If he chose to swerve, though from the best motives, from that plain path of duty and entire safety prescribed for administrators and trustees, the risk of loss is upon him. No better illustration of this principle could be found, than in the case cited from 4 Barb. 626, where the court, taking pains to testify to the high character and integrity of Judge Emott, yet held him strictly to the rule. The defendant's search has brought to light one case, (8 Gill, 404,) which he thinks is entirely decisive of the present. He seems to have forgotten that in that case the express direction, of the testator to invest in stocks took the case out of the very rule of equity on which we rely. No such authority was given by the will of Mr. Clendenning. It is, besides, to be remarked VOL. XX. 15 114 CASES IN THE SUPREME CODRT. Hogan v, De Peystcr. of this case in Gill, that the Maryland law is loose in regard to the duties of executors, administrators and trustees, never hav- ing adopted the English rule. This is sufficiently evident from the opinion of Dorsey, J., who, in delivering the judgment of the court, remarks : " In the course of the argument of the va- rious points relied on in this case, to charge the defendant with the loss complained of, an immense mass, both of English and American authorities, have been referred to, to prove that, in the states or country where those' decisions were made, an in- vestment of a trust fund by executors, guardians or trustees, in bank stock, was a breach of trust, and subjected those by whom it was made to all the losses and casualties resulting therefrom. In answer to these authorities it might perhaps be sufficient to say, that the English chancery rule in regard to the securities in which trust funds can only be legitimately invested, has never, literally or analogically, been extended to Maryland ; and that the American authorities cited, for the most part depend on statutory enactments of the state in which those decisions have been made, or rest on principles sanctioned by the courts of those states, but which have never been adopt- ed, directly or indirectly, in the state of Maryland." Magru- der, J., in his dissenting opinion, arrives at a conclusion more in accordance with right, and with English and American law. He says : "I must, however, think that the loss here to be 'sus- tained, ought to be borne by men who undertook the trust and then transcended the bounds of their trust duty," &c. IV. It will be perceived that the defendant does not any where contend in his points and argument that he was not liable as trustee for riot having sold the stock immediately upon his appointment as such. His main argument consists of the vari- ous divisions and subdivisions under and in support of his third point, which is that, "supposing that as administrator, the de- fendant possessed ample power, he was fully justified in omit- ting to sell the stock," &c. And yet we had contended, in our second opening point, that even if the defendant was not liable in his capacity of administrator, he surely was as trustee. V On the whole, then, we say it is the duty oi an a^ NEW YORK MAT, 1855. Hogan v. De Peyster. trator to collect, realize, and hold securely, the personal estate of the decedent, so that it be ready for distribution ; or, in case of a will, for application under the directions of such will. ,An. order in such will that he should so realize and convert into money, if it do not strengthen and enforce the obliga- tion already imposed on him by the law of administration, cer- tainly takes away any reason for favorable consideration in the event of injury through his neglect. The defendant was ap- pointed administrator cum testamenlo annexo, Feb. 4, 1837 ; in Feb. 1838, he had become derelict from duty, and so con- tinued through 1838. 1839, 1840, and throughout. His respon- sibility and liability accrued and was conclusive upon him in 1838. No after correspondence, no requests or non- requests, or refusals of requests, no after given opinions, correct or incor- rect, in 1839, 1840, or any after time, of parties interested or not interested, agreeing or disagreeing, of distributees or cestuis que trust, (all infants.) can be urged in palliation of a plain neglect of duty, in 1837 and 1838. By the Court. MITCHELL, P. J. The testator made his will in 1829, and died January 28, 1836. On the 4th of February, 1837, the defendant was appointed administrator with the will annexed. The testator, at his decease, held 1000, shares, of $100 each, in the stock of the Bank of the United States the Na- tional institution. The charter of that bank expired on the 4th of March, 1836. On the 18th of February 1836 the state of Pennsylvania chartered " The United States Bank," the insti- tution of that state. This last institution was intended to take the place of the former, and it was generally supposed that it- would do so, to a great extent ; those who disliked the first ex- tending an equal dislike to the second, and those who had con- fidence in the first generally reposing an equal confidence in the second. The testator, by the second 'clause in his will, directed his real and personal estate to be converted into money, as soon as convenient, after his decease, and the proceeds to be securely invested in the most productive manner, " leaving it. however, to the discretion of my said trustees to suffer such part of my 116 CASES IN THE SUPREME COURT. Hogan v. De Pyster. personal estate as is now invested in bank stock to remain in its present state, so long as they may deem it most for the in- terest of my family." The testator must specially have referred to this stock, as it formed a large part of his estate, and espe- cially of the part invested in bank stock. He must have known what his will was, in the month when he died, and that this dis- cretion applied to this stock ; and he must also have known that the national institution would not then probably be rechartered. He must therefore be considered as sanctioning the continuance of this stock either in the same bank if re-incorporated, or in one substantially similar, or which might be regarded as in some sense its successor. If congress had rechartered the same bank, the case would have been clear. If it had chartered a new in- stitution on a similar plan, with a right to subscribe open to all, and by arrangement between the new and old banks this sub- scription had been transferred to the new, his intention would probably have been that such transfer should be made. Here the difference was that a state institution took the place of the national one, and by arrangement between them the stock was thus transferred. There was no more reason to apprehend loss from the institution having a state charter than from its having a national one. The executors, therefore, could not be charged with any breach of duty in not interfering to prevent (if they could have prevented) this arrangement between the two i-nst tutions, or in not claiming payment of the value of their stock from the old institution. The defendant did nothing to aid the transfer, and when asked to take measures to make the old bank liable (as he had not assented to it) no proof is shown that he did not take a course satisfactory, at the time, to the plaintiffs. He was advised by counsel that it was inexpedient to attempt such a suit after dividends had been accepted from the state in- stitution. The administrator barely suffered the stock to re- main in the state in which it was at the testator's decease, and to pass as the rest of that stock did, except the part subscribed by the United States ; and then, finding it so transferred as by a common consent of the stockholders, he received the dividends XEW YOEK MAY, 1855. J 17 Hogan v . De Peyster. on the new stock. This was not a new investment by him. The case of Ac/German v. Emott, (4 Barb. 626.) shows the dis- tinction between the two cases, and that an executor is liable for an unauthorized investment by himself, on personal securi- ties or bank stock, but admits that he is not liable for permit- ting such investments made by his testator, to continue. Parker, V. C. says. (p. 635,) the case of Powell v. Evans, (5 Ves. 838,) held that executors who neglected to call in money lent by the testator on a bond, should be charged with the loss that might be sustained by the subsequent failure of the obligors. He adds, " this doctrine has not perhaps been carried to this extent in this state. The case of Thompson v. Brown, (4 John. Ch. Rep. 619,) may be regarded as somewhat modifying it." ;t If the rule has not been so rigidly enforced here, as to collecting money already invested by the testator, I think it has been equally strict with the English courts, in insisting upon proper investments, when made by the trustee." "An examination of that case. (Thompson v. Brown,} however, shows that it was not a case of investment made by the administrators. They only permitted the business to be carried on as they found it. Chancellor Kent there says, ' This was not a new and distinct original trading with the assets voluntarily entered into by the administrators. They found a store of goods in possession of a surviving partner, and they had no alternative but either to suffer him to go on and sell on the usual terms and under a continuation of the confidence reposed in him by the intestate, or to divide the goods and sell the store of R. at auction." The vice chancellor thus approves of that case and of the distinction between it and the one before him, and on that distinction sus- tains his own decision as consistent with that case and with Brown v. Campbell, (Hopkins, 233.) This last case is also approved, on the same distinction, in the opinion delivered at the general term, by Justice Strong, affirming vice chancellor Parker's decision. He says (4 Barb. 647) " In Brown v. Camp- bell Chancellor Sanford sustained the exchange of the notes of the Union Cotton Manufactory for the stock of the Otsego Cot- CASES IN THE SUPREME COURT. Hogan v. De Peyster. ton Manufactory. That hoAvever was not an original investment of money, but simply the exchange of one doubtful security for another, and might have been the best arrangement which could have been made." This transaction, if the administrator had actively engaged in it. would have been only an exchange of one security or invest- ment not approved by the courts, for another of the like nature, and generally considered at the time, equally safe, and would at that time appear a much better arrangement than a contest with the old bank for the payment of the testator's interest in the stock a contest which probably could not end until all the claims against the bank had been settled ; and then (if an opin- ion entertained by many was correct, and the old bank was real- ly insolvent) would have resulted in a total loss of the stock and the payment of heavy costs and counsel fees. In this case quite as much as in Thompsons. Brown, or in Brown v. Camp- bell, the administrator was justified in suffering the exchange of investments to be made, and ought not to be held account- able for any supposed loss that has resulted. He had no alter- native but to suffer the change which at the time must have appeared expedient, or to enter into a controversy which prob- ably would have resulted no better than the course which he adopted. Could an executor be blamed who alloAved his testator's shares in the stock of the chartered Chemical Bank to become part of the stock of the new bank under the general law. It is be- lieved that an eminent lawyer, who held such stocks as executor threatened a suit against the new bank to compel it to allow him to come in and participate in its stock. Yet the banks are en- tirely distinct in interest. So it is believed that 'generally, when the charters of old banks have expired, their stock has lie-en transferred to the new bank of the same name, unless ex- press dissent was manifested ; and that such dissent seldom occurred. This shows that the administrator was guilty of no negligence in not interfering with the transfer that was made. YORK MAY, 1855. ] \Q United States Trust Co. of N. Y. v. Brady. The bill should be dismissed ; and as the administrator is not in fault and should not be subjected to the payment of his solicitors' costs, it is with costs. [NEW YORK GENERAL TERM, May 7, 1855. Mitchell, Chrke, and Cowles> Justices.] 30 39 THE UNITED STATES TRUST COMPANY OF NEW YORK, re- <^ a 448| ceiver of the Knickerbocker Savings Institution, vs. BRADY. Where moneys deposited with the Knickerbocker Savings Institution, were loaned by such institution to the defendant, upon his promissory note, payable on demand, secured by the hypothecation of 32 shares of the capital stock of the Knickerbocker Bank ; it was held that the note was not a violation of the charter of the savings institution, nor of the act of April 15, 1853, relative to savings banks in the city and county of New York and the county of Kings. (Laws of 1851, ch. 100; of 1853. ch. 257.) The 6th section of the act of 1853 was intended to be. and is, only a prohibition against the loaning of the funds of savings institutions on mere personal secu- rities. A loan, when the note of the borrower, payable on demand, is taken, is not a loan on the security of that note. The note is only an evidence of the debt. If stock is hypothecated to secure the payment of the note, the loan will be deemed to have been made upon the stock. I he charter of the United States Trust Company of New York, is not uncon- stitutional. That company is not a corporation created for banking purposes, within the meaning of section 4 of article 8 of the constitution. The constitution gives the legislature the power, in its discretion, to create cor- porations other than banks, by special charter. And when that discretion has been exercised, the courts cannot review the action of the legislature. nature of this action, and the defense thereto, appear JL concisely from the opinion of the court. The action was tried before his honor, Justice CLERKE, without a jury, at the city hall in the city of New York, on the 16th of March, 1855, and a judgment rendered pro forma for the plaintiffs, for the amount claimed upon the note in suit, with interest, &c. The case was directed to be heard before the general term in the first instance. |20 CASES IN THE SUPREME COURT. United States Trust Co. of N. Y. v. Brady. Chas. H. Hunt, for the plaintiff. John Graham, for the defendant. By the Court, MITCHELL, P. J. The Knickerbocker Sav- ings Institution, chartered by the act passed April 8, 1851, chapter 100. amended by chapter 257 of laws of 1853, while in existence, and in the course of its business, on the 7th of Jan- uary. 1854, out of the moneys deposited with it, loaned to the defendant $700, taking from him as security for its repayment when required, an hypothecation of thirty-two shares of the capital stock of the Knickerbocker Bank, which stock was own- ed by the defendant, and was of the nominal value of $800, and also taking his note, promising to pay the $700 on demand with interest. The savings institution afterwards became insol- vent, and its assets and affairs passed by an order of a justice of the court, to the plaintiff as receiver. This action is brought to enforce payment of the note. The complaint counts only upon the note. The above facts are in substance averred in the com- plaint and answer, and were admitted by both parties at the trial ; and no proofs were given on either side. The defendant claims that the transaction was in violation of both of said acts, and particularly of the 6th section of the latter act ; and that the plaintiff is not the lawful holder of the note. Judgment was rendered, at the circuit, in favor of the plaintiff, for the amount claimed, with interest and costs, which judgment is now the subject of review by the court at general term. The note in question was not a violation of the charter of the savings institution, nor of the act of 1853. The 6th section of the latter act was intended to be, and is, only a prohibition against the loaning of the funds of savings institutions on mere personal securities. It was intended for the protection of the depositors, who. being generally in moderate circumstances, and not well able to take care of their funds, would wish to deposit them \shere they would be safe. The legislature meant to make certain the securities to be taken for them by prohibiting NEW YORK MAY, 1855. JO] United States Trust Co. of N. Y. v. Brady. loans on personal securities, and requiring that the loans should be on certain stocks or on mortgages. A loan, when the note of the borrower, payable on demand, is taken, is not a loan on the security of that note. That note is only an evidence of the debt. These banks are regarded as quasi guardians or trustees for their depositors. A statute that no guardian, executor or trustee should loan the funds of the estate on notes, drafts or other personal securities would not make void a note taken in this way ; for that would defeat the very object of the legisla- ture, which was to protect and secure the depositors in the one case, or the beneficiaries of the estate in the other. The pro- hibition was not to protect the public against any evil which could come to it from those banks holding personal securities, but to save the money of the depositors. A mortgagor, when sued upon his bond, could not set up that the latter is void under the section in question. In that case the loan would be, not upon the bond, but upon both the bond and mortgage ; principally the latter. In the present case, the loan may be said to have been made upon the hypothe- cated stock, with the note as evidence of the debt. If the note were void, and the point made by the defendant's counsel, that the action should have been for money lent, were technically sound, (See Utica Ins. Co, v. Kip, 8 Cowen, 20.) such a count might be added to the complaint, in any stage of the action, or the complaint would be considered as amended accordingly ; or, as these facts are stated in the answer, they could be treated as proved at the trial, and the defendant could not object to them on the ground of variance, as he could not pretend that he had been misled. (Code, 169, 170, 275.) The charter of the United States Trust Company of New York is not unconstitutional. It is not a corporation created for banking purposes, within the meaning of section 4, of article 8, of the constitution. Banking is there used in its then and still familiar and popular sense, that business which might be carried on by banking associations under the law to author- ize the business of banking, passed April 18, 1838. That law had been amended and reference made, each time, to its title VOL. XX. 16 122 CASES IN THE SUPREME COURT. United States Trust Co. of N. Y. v. Brady. authorizing " the business of banking" before the constitution was adopted, in 1840, ch. 363, in 1841, ch. 26, ch. 319, in 1844, ch. 41. ch. 281, and the meaning of the word had thus become fixed by legislative usage also. The duties of this company are prescribed by the second section of its charter, which do not include banking powers. The constitution gives the legislature the entire discretion of creating other corporations than banks, by special charter. (Art. 8, 1.) That discretion has been exercised in this instance, and courts cannot review its exercise. This was so held at the general term, when the charter of the plaintiffs was first brought before its notice, on a motion that the court should appoint a day on which the annual accounts of the company should be submitted to the court, under 20 of its charter. The judgment must be affirmed, with costs. The receiver, on the defendant's giving security for the costs of the action, and of an appeal to the Court of Appeals, may waive any fur- ther security on said appeal, as there is a large number of cases in which the same questions are intended to be raised, and it is important to have the decision of the court of last resort as promptly as possible in the case. [New YORK GENERAL TERM, May 7, 1855. Mitchell, Clerke and Cowlcs Justices.] NEW YORK MAY, 1855. J23 MOUNT vs. MORTON and others. ao Taa 43 549 57 289 A testator, by his will, made in March, 1801, gave to his wife the income of his u& 249 real and personal estate, during her widowhood. He then devised 4s follows : ' ' I give and bequeath unto my oldest son, Jacob, the corner lot, on the corner of Hester arid Elizabeth streets ; I also give and bequeath unto my eldest daughter, Barbara, the lot adjoining the corner, facing Elizabeth street; I give and bequeath to my daughter Eliza, the lot adjoining the above, facing Elizabeth street; and I also give and bequeath to my youngest son, William, the lot adjoining the above." The testator died in March, 1801, and his son William in August thereafter. After the testator's death, each of his four children claimed and took one lot ; the corner lot being called Jacob's, the next south, Barbara's, the next, Eliza's, and the next, William's. In 1823, the widow of the testator conveyed to Jacob all her title to any lands of which her husband died seized, or possessed. Jacob then conveyed in fee to J. S. ' the whole of lot No. 137, without any thing to indicate that he was selling an undivided interest only in the lot. In 1822, Barbara, with her husband and the widow, mortgaged lot No. 136 to C. for &650 ; nothing in the mortgage indicating an intention to pass the title to an undivided share only of the lot. This lot was afterwards sold on a foreclosure of the mortgage, and purchased by C. Before this sale, and after the conveyance by the widow to Jacob, the latter conveyed to J. S. all his " estate, right, title and interest" of, in and to lot No. 130, " being an estate in said Jacob M. for the life of his mother." In 1829, Eliza joined with her husband, A., in conveying the whole of lot No. 135 to P. in fee, with full covenants, and without any intimation that the grantors conveyed, or had only an undivided interest in that lot. William died an infant, in 1801, and his estate passed to Jacob, Barbara and Eliza. In 1821, Barbara and Eliza, with their respective husbands, joined with the widow, and conveyed to Jacob, in fee, two undivided third parts of lot No. 134, by a deed, with full covenants as to the estate granted, and describing themselves as co-heirs of William with Jacob. In 1822, Jacob conveyed this lot to P. C., with full covenants, and without any intimation that he conveyed only an undivided share. Barbara died in 1835, leaving six children, one of whom died in 1839. The plaintiff was one of her children. He claimed, that the will gave only a life estate to each child, in each hat ; that his mother, on the death of William, was entitled to an undivided third in each lot, in fee ; that such right descended to her six children, and on the death of one of them ' vested in the live survivors ; and that the plaintiff was thus entitled to one fifteenth pan of lots 136 and 137. Held, 1. That, assuming that the will did not convey to each child the fee of the lot devised to him or her, but only a life estate in it, it was plain that each child must have known that it was the intention of the testator to convey the fee. That slight evidence ought to be sufficient in such a case, that they had determined to carry out the real intent of their father, although not expressed according to law. That here was the strongest evidence that they had so de- \9\ CASES IN THE SUPBEME COURT. Mount v. Morton. tcrmined, and that they carried out this honest determination ; every act of theirs showing that determination, and showing it hi a manner strictly com- fonnable to law. 2. That if the will did not give a fee to each child in a separate lot, then each child had a life estate in a separate lot, and they were together tenants in com- mon of the reversion in fee. in all the lots, which reversion descended to them as the heirs at law of their father, as real estate not disposed of by his will. 3. That if the doctrine of estoppel could be applied so as to prevent parties dis- turbing a partition, merely because there had been possession under it, there was much more ground for applying it where, as in this cas-e, each owner had, by his or her deed, claimed to own a separate lot in entirety, and had, under that claim, conveyed the land by deed or mortgage, and subsequent fore- closure, and received from the purchasers the full consideration for the entire title to the lot, under this representation, made by all and by each, that each held a lot separately in fee, and without any co-tenant. That all the children of the testator, therefore, were estopped now from denying that each held his. own lot in fee and in severally. 4. That if each of the owners had been together when they conveyed, and had at the same time conveyed to the several purchasers, there could be no doubt that they each claimed to hold a lot in severally, and conceded to the others the like right. Such conveyance would be conclusive evidence of a. partition previously agreed on ; and they, by their acts, causing others to believe it was made, would be estopped from denying it. That the conveyances, made sepa- rately and at successive times, equally established the fact of a partition pre- viously agreed on. 6. That it made no difference that Barbara and Eliza were married women. A married woman can no more be allowed to commit a fraud than a single wo- man. She is competent to knew the difference between fraud and honesty, and to understand the obligation not to stand hy and allow another to pur- chase from her on the supposition that she has a perfect title, when she knows she has not. 0. That these acts and deeds of the parties were such evidence of an actual par- tition between the parties that a jury or court ought to find that there was an actual partition in fact. And that the several deeds and the mortgage con- firmed that partition,. so as to bind even the married women ; the deeds and mortgages having been acknowledged by. the latter on a private examination, so as to pass their title. It Ls well settled, that tenants in common may make partition by parol ; and that it is binding when followed by possession according to the partition. A PPEAL l>y the plaintiff from a judgment entered at a spe- JJL cial term, in favor of the defendants, with costs. The fol- lowing opinion, delivered at the special term, states all the material facts : NEW YOKE MAY, 1855. 125 Mount v. Morton. "MITCHELL, J. The plaintiff commenced his action to re- cover an undivided fifteenth part of lots Nos. 137, 136, on Bayard's map ; the first at the southwest corner of Hester and Elizabeth streets, and the other on the west side of Elizabeth street, both lots fronting on Elizabeth street. Jacob Meyers, the elder, owned those two lots, and the two other lots. Nos. 135 and 134, next adjoining on Elizabeth street, in 1776, and at the time of his death. He made his will, dated March, 1801, and died in that month ; on the 21st of May, 1801, his will was proved. He left surviving, his widow, Catharine, who died in 1836, and four children Jacob, born in 1791 ; Barbara, born in 1794 ; Eliza, born in 1796 ; and William, born about 1798. By his will he gave to his wife ' the income of his real and per- sonal estate, during her widowhood.' He gave the four lots above referred to in the following terms : ' I give and bequeath unto my oldest son, Jacob, the corner lot, on the corner of Hester and Elizabeth streets ; I also gjve and bequeath unto my eldest daughter, Barbara, the lot adjoining the corner, facing Elizabeth street ; I give and bequeath to my daughter, Eliza, the lot adjoining the above, facing Elizabeth street ; and I also give and bequeath to my youngest son, William, the lot adjoin- ing the above.' William died in August, 1801, about five months after his father. Eliza, the daughter, was called as a witness for the plaintiff, and on her cross-examination testified that each one of the four children, after the father's death, took one lot ; that the corner lot was called Jacob's, the next south, Barbara's, the next, Eliza's, and the next, William's ; and that, from the time of the death of her father, each one of the chil- dren claimed each a separate lot ; Jacob, the corner ; Barbara, the next ; Eliza, (the witness,) the next, and William, the last. In January, 1823. the widow of the testator conveyed to her son, Jacob, all her title to any lands of which her husband died seised or possessed. In the same month Jacob, the son, con- veyed in fee to James Sivalls the whole of lot No. 137, for two thousand five hundred dollars, with full covenants of seisin (of title in fee) and for quiet enjoyment, and further assurance and warranty, without any thing to indicate that he was selling an 12G CASKS IX THE SUPREME COURT. Mount v. Morton. undivided interest only in the lot. In December, 1822, Barbara, with her husband, and the widow, mortgaged lot No. 136, a va- cant lot, to P. Clapp and wife, for six hundred arid fifty dollars, with the usual power of sale, and a declaration that such sale should be a perpetual bar, both in law and equity, against the mort^a^ors, their heirs, &c. Nothing in this mortgage indi- O O ' ' O O O cated an intention to pass the title to an undivided share only of the lot. The lot was afterwards sold on foreclosure, in chan- cery, on the 2d July, 1824, to Clapp, for nine hundred and twenty dollars, and by him on the 15th July, 1824. conveyed to Sivalls for the same consideration, with full covenants of title. Before this sale, and after the conveyance by the widow to Jacuh, in January, 1823, Jacob Meyers, the son, and his wife conveyed to Sivalls { all the estate, right, title and interest of the parties of the first part, of. in and to lot No. 136, being an estate in said Jacob Meyers, for the life of his mother, Catha- rine Meyers.' Eliza married Robert Archbald, in October, 1819, and she joined with her husband, in 1829, in conveying her lot, No. 135, to William Pinckney (by the deed conveying the whole lot in fee with full covenants,) and without any inti- mation that the grantors conveyed, or had, only an undivided interest in that lot. William having died an infant in 1801, his estate passed to his brother Jacob, and his two sisters, Barbara and Eliza. On the 7th of August, 1821, Barbara and her hus- band, John Mount, and Eliza and her husband, Mr. Archbald, joined with the widow, and conveyed to Jacob Meyers, their brother, in fee two undivided third parts of lot No. 134 for six hundred and sixty-six dollars and sixty-six cents ; the deed de- scribes Barbara and Eliza as co-heirs with Jacob the younger of William Meyers, and it has full covenants as to the estate granted. Jacob Meyers, in March, 1822 ; conveyed this last lot in fee for one thousand five hundred and fifty dollars to Peter' Cook, with full covenants, and without any intimation that he conveyed only an undivided share. Barbara married John Mount in 1812, and died in 1835, leaving her husband surviv- ing, and six children ; the husband died in 1839 ; one of the children, Albert, died after his mother, but before his father NEW YORK MAY, 1855. Mount v. Morton. George W. Mount is one of Barbara's children. His claim is, that the will gave only a life estate to each child in each lot ; that his mother, on the death of William, was entitled to an undivided third in each lot in fee, and that right descended to her six children, and one of them dying, vested in the five, and that he is entitled thus to one-fifteenth part of lots 137 and 136. He, at the argument, however, claimed only one-fifteenth of two-thirds, considering the conveyance by Jacob as having given a perfect title to one-third, and leaving only the other two-thirds to descend to heirs. Assuming that the will did not convey to each child the fee of the lot devised to him or her, but only a life estate in it, it is plain that each child must have known that it was the intention of the father to convey to each the fee. Slight evidence ought to be sufficient, in such a case, that they had determined to carry out the real intent of their father, although not expressed ac- cording to law. Here, there is not slight but the strongest evi- dence that they had so determined, and that they carried out this honest determination. Every act of theirs shows that de- termination, and it is shown in a manner strictly conformable to law. If the will did not give a fee to each child in a separate lot, then each child had a life estate in a separate lot, and they were together tenants in common of the reversion in fee, in all the lots, which reversion descended to them as the heirs at law of their father, a? real estate not disposed of by his will. With us the law is settled that tenants in common may make partition by parol, and that it is binding when followed by pos- session according to the partition. Kent, Ch. J., says, in Jack- s-o/i v. Harder, (4 John. 212,) " The validity of the two partitions is not to be questioned. It did not require releases to make the division valid. A parol division, carried into effect by posses- sions taken according to it, will be sufficient to sever the posses- sions, as between tenants in common, whose titles are distinct, and when the only object of the division is to ascertain the sep- arate possessions of each." The court also say, in Jackson v. Vosburgh, (9 John. 276,) " There is no doubt but that where the title is admitted to have been in common, a parol partition CASES IN THE SUPREME COURT. Mount v. Morton. followed up by possession will be valid, and sufficient to sever the possession." The counsel for the plaintiff in the last case admitted the rule, but insisted, as the court also held, that it did not apply there, because a title in common was not shown, but the parties held or claimed adversely, and not in common. In Jackson, v. Livingston, (7 Wend. 136,) a deed was executed conveying 600 acres to be surveyed and taken off a large tract of 15,360 acres; it contained no description of the 600 acres, but a location was subsequently made by the acts of the parties. The court said. (Id. 141,) " The deed made the grantees tenants in common with the patentees, and the proceedings locating the right of the grantees operated as a parol partition" and then quoted the above two cases. The chancellor also said, in rela tion tothe-same deed, in Corbin v. Jackson, (14 Wend. 619-625.) " The parol partition between her [Madame D'AutremontJ and Le Fevre was also valid." Nelson, Ch. J., says, in Ryerss v. Wlieeler, (25 Wend. 434-6,) probably affirmed in the court of errors, (see 4 Hill, 468, n. a,} " It has been repeatedly decided in this court, that a parol partition carried into effect by posses- sion and occupation, in conformity thereto, will be binding be- tween tenants in common whose titles are distinct, and the only object of the division is to ascertain the separate possessions.'' The same doctrine was held by Judge Harris, in the court of appeals, in the case of Baker v. Lorillard, (4 Comst. 257-262.) and although Judge Bronson differed with him on some points, as to the title of Pearsall in that case, he expressed no dissent on this point, which related to the Pell title. A partition had been made between Mrs. Macomb, representing the Pell title, and only having a life estate, and her husband on one side, and Mr. Campbell, representing the Pearsall estate, and only having a life estate, but with power to partition, on the other side.. Mrs. Macomb, after the partition, became the owner of the re- version in fee by the death of her daughter. In 1840 she sold ths premises allotted to her. Judge Harris says, page 262, she " thus affirmed the validity of the partition. Having thus rat- ified the partition made by her when a feme sole, and when she was only entitled to a life estate, I think she is estopped from NEW YORK MAY, 1855. ]29 Mount v. Morton. making any claim to the premises. Such a confirmation is at least equivalent to a partition by parol, which, it has been often held, will, when accompanied by livery of seisin, bind tenants in common holding under distinct titles" " as Mrs. Macomb, after she became entitled tc the whole estate, has taken the benefit of that division, it must be held conclusive as to her and those claiming under her." Mrs. Pell was married when the partition was made, but single when she conveyed, in 1840. (Seep. 259, 60.) But a married woman is as competent to confirm an act done by her. if she confirm it by a deed acknowledged so as to pass real estate, as any other person. It maybe said that the sepa- rate possession here was consistent with the ownership of a life estate only in each lot, and of the reversion in common to all. But that, with the separate claim of sole title in fee in each lot, and the conveyance according to such claim, was not consistent with an ownership in common in the reversion. If the doctrine of estoppel can be applied so as to prevent parties disturbing a partition merely because there has been possession under it, there is much more ground for applying it where, as in this case, each owner has by his or her deed, claim- ed to own a separate lot in entirety, and has under that claim conveyed the land by deed or mortgage, and subsequent fore- closure, and received from the purchasers the full consideration for the entire title to the lot, under this representation made by all and by each, that each held a lot separately in fee, and with- out any co-tenant. Here Barbara and Eliza joined with their husbands, in 1821. in conveying to their brother, Jacob, two- thirds of the lot that was devised to William, and in their deed they describe themselves as co-heirs of William with Jacob. If, as claimed by the plaintiff, there was no separate ownership in fee of each lot, then this representation was false. William had only a title to this lot for life, and a reversion in fee in one- fourth of it, and Barbara and Eliza, instead of being co-heirs with him in that respect of one-fourth of the lot, and able to convey to him as such co-heirs, had only two-thirds of that one- f jurth. Jacob, also, then continued the misleading when he sold the title to the whole lot, in March of the next year,, to P. Cook, VOL. XX. 17 30 CASES IX THE SUPREME COURT. Mount v. Morton. and those conveyances executed by them, or the first of them, would naturally lead those who dealt with them to believe that they owned each the lot held by him or her in severalty, and had no claim on any other. Then the same belief would be con- firmed by the mortgage by Barbara and her husband, in Decem- ber, 1822, of lot No. 136, and the sale on foreclosure of the same lot, in July, 1824, in a suit in which they both were parties, and by the deed by Jacob in January, 1823, to Sivalls expressly, of all his estate in the lot No. 136, and there describing it as be- ing an estate for the life of his mother. This was a distinct declaration to all who dealt with the estate, that he had no title in that lot, except for the life of his mother, and that could only be (if the will did not give each a separate lot in fee) because each had consented to a partition, and taken one lot as his share of the whole. Jacob still further confirmed this belief, and re- peated the representation of sole ownership, when he con- veyed, in 1823, the whole of lot No. 137 to Sivalls. in fee, and Eliza and her husband finally confirmed them all, when they conveyed in fee the remaining lot No. 135, as the sole owners of it. These acts of the several owners, partly concurrent, as in the deed for William's lot, and partly separate, tended as much to mislead each purchaser, (unless the parties actually owned in severalty, or are estopped from denying that they so owned,) as if the owners had actually represented that they so owned. Eliza, the last to convey, stood by and saw the others convey the other lots as the absolute owners of it, and set up no claim to them ; but, as if to confirm the correctness of those sales, she, with her husband, sold the whole of the lot held by her, and they received the purchase money as for the whole. They all, therefore, are estopped now from denying that each held his own lot, in fee and in severalty. If all of the owners had been to- gether when they conveyed, and had at the same time conveyed to the several purchasers, there could be no doubt that they each claimed to hold a lot in severalty, and conceded to the otL crs the like right. That would be conclusive evidence of a par- tition previous!} 7 agreed on, and they causing by their acts others to believe it watt made, would be estopped from denying it. The NEW YORK MAY, 1855. 13 ] Mount v. Morton. conveyances, made separately and at successive times, equally establish the fact of a partition previously agreed on, although not in so striking a manner. It is true, here there was a partition for the life of each, but the acts of the parties in conveying the fee in each lot, show that that was not the only partition that they had agreed to. but that it was a partition as to the whole title to the lots. Nor was this partition so unequal as at first it might seem. Jacob had the most valuable lot, but its extra value arose principally, if not entirely at fhat time, from the building on it ; and as he had a life estate in that lofr, that building would be worth but little after the expiration of that estate of his, so that what was held in common, one-fourth of the reversion, in all four of the lots, was nearly the same as the reversion in the whole of any one lot. If the owners were mis- led as to the law, and supposed they owned the fee, they ough. not the less to be estopped, as they, by their acts, led others to purchase under the same belief, and they have each received nearly, if not quite the same value as they would have received if they had sold the reversion in one-fourth of each lot. It makes no difference, in this view of the case, that Barbara and Eliza were married women. A married woman can no more be allowed to commit a fraud than a single woman ; her deed is not valid, unless when relating to real estate and duly acknowl- edged, but she is liable for torts committed by her, and is com- petent to know the difference between fraud and honesty, and to understand the obligation not to stand by arid allow another to purchase from her, who supposes she has a perfect title when she knows she has not. Another view of the case is equally fatal to the plaintiff's claim. These acts and deeds of the parties are such evidenc< of an actual partition between the parties thart a jury or cour. bound to draw conclusions from the evidence before it, ought t( find that there was an actual partition in fact, and then the sev eral deeds and the mortgage confirm that partition, so as to bine even the married women ; the deeds and morto;ao;es havino- been ' C5 O O acknowledged by the married women on a private examination so as to pass their title. Eliza (the witness, now Mrs. Archi- ]32 OASES IN THE SUPREME COURT. Mount v. Morton. bald) shows expressly that each took possession of a separate lot, and claimed it as his or her own in severally. The lots, too, were separated, in fact, from each other, the corner lot hav- ing a house on it, and lot 135 a house on it, the last erected after the testator's death. If, as is probable, the statute of limitations cannot apply in this case, notwithstanding the lapse of so many years, it makes it more important that those principles which are preventive of fraud, should b'e liberally applied. Judgment should be entered for the defendants, with costs." John Townshend, for the appellant. I. On the death of Jacob Myers, senior, his widow, by virtue of his will, took an estate for life in the four lots Nos. 134, 135, 136. 137. (Jarm. on Wills, ed. 1844, p. 534.) II. By the will, Jacob, the son, took a life estate in lot 137 ; Barbara a life estate in lot 136 ; Eliza a life estate in lot 135, and William a life estate in lot 134. (Edwards v. Bishop, 4 Corns. 61. New v. Mesick, 3 Seld. 163.) III. The reversion in the four lots descended to Jacob, Bar- bara, Eliza and William, and they held the same as tenants in common, in fee. IV. From the testator's death each of his children claimed a separate lot ; each lot was called after the child to whom it was devised by the will ; each child took one lot. William died five months after his father, in 1821. Barbara and Eliza, the co-heirs with Jacob, of William, and the testator's widow, convey- ed to Jacob two undivided thirds of lot 134, and in 1822, Jacob conveyed lot 134 in fee to Peter Cook. In 1822 Barbara mort- gjigcd lot 136, describing it as the lot devised to her by the will of Jacob Myers, to Philip Clapp. On 25th January, 1823, testator's widow conveyed to Jacob all her estate in said four lots being an estate for her life. To this time she collected the rents. There was only one house on the lots at the testator's death ; that was on the corner lot. Testator's widow lived on the third lot from corner lot 135 ; she put a building on the lot. There was a vacant lot intervening. Jacob, after the deed from his NEW YORK MAY, 1855. ]33 Mount v. Morton. mother, built on the intervening lot. On 27th January, 1823, Jacob conveyed lot 137 in fee to James Sivalls, and on the same day Jacob conveyed to said Sivalls lot 136 for the life of his (Jacob's) mother. Jacob died in 1823. Jacob's widow married William Hicks. In 1825, Jacob's widow and administratrix conveyed to Eliza's husband the lot devised to Eliza (lot 135) for the life of Catharine. After this, and not till this, Eliza took possession of her lot. In 1829, Eliza and her husband conveyed lot 135 to W. T. Pinkney. The lot is described as the lot devised to Eliza, and Pinkney paid off the mortgage on it. In 1824 the mortgage of Barbara was foreclosed, said Sivalls being made a party to the suit. On the foreclosure sale the premises were sold to Clapp, and immediately after conveyed by him to said Sivalls. Sivalls held possession of lots 137 and 136 from 1823 to 1828. The testator's widow died in 1836. From these facts, it is evident, (1.) That not one of the testator's chil- dren was ever in possession as devisee of the lot devised to him or her. (2.) Jacob had possession only as vendee from Jiis mother. (3.) Eliza never had possession, and her husband only as ven- dee from the widow of Jacob, the son. (4.) Barbara never had possession. (5.) That/rom the death of the testator each child claimed the remainder in fee, expectant, on the death of their mother, of and in the lot by the will devised to him or her re- spectively. (6.) That when Sivalls bought of Jacob, he (Sivalls) had notice of the will of Jacob's father, and of the estate each child claimed under it. (7.) That when Barbara mortgaged to Clapp, he knew of the will of her father and the estate each child claimed under it. (8.) There is no proof that any child knew of the dealings with the property by the other. (9.) There is no proof that each child obtained the value of the whole lot. (10.) There is no proof of any intent to mislead, nor that any purchaser was actually misled. V. Presumptions are only indulged in where there are no other means of ascertaining the fact ; (3 Black. Com. 371, Oxford ed. 1773. 14 Eng. L. fy Eq. R. 223. Black v. Wright, 9 IredeWs R. 447,) and if a party having conclusive evidence in his power resort to weaker proof, the presumption 134 OASES IN THE SUPREME COURT. Mount v. Morton. is that the conclusive evidence is adverse to him. (Roe v. Har- vey, 4 Burr. 2484-7. Curlewis v. Corfteld, 1 Q. B. R 814. Lobb v. Stanley, 5 td 574. ?c# v. Frankis, 4 A/. $ . 446.) VI. The presumption of partition is inconsistent with the facts of the claim of each child of a lot in fee from the death of the testator ; and " if any established circumstance is whol- ly repugnant to the hypothesis, the hypothesis cannot be true/' (3 Stark. Ev. 483, 505.) VII. To ascertain the testator's intention, the court must look to the language of the will, " and apply to it the established rules of law." (Jackson v. Winne, 7 Wend. 52. Davidson v. Davidson, 1 Hawks, 181. Chandless v. Price, 3 Yes. 102.) And the testator's intention thus ascertained, the court Avill presume that the children meant to carry out that intention. (Jackson v. Christman, 4 Wend. 284.) VIII. The conveyance by Barbara and Eliza to Jacob, neg- atives a partition. William died five months after his father, aged three years. Eliza was then aged 5, Barbara 7, and Ja- cob 10. and there is no ground for presuming a partition among these infants. At the time of the conveyance to Jacob, in 1821, William's lot was treated as though he took it in fee under the will, showing that the children considered the will gave each a lot in fee ; also, that no partition had been made since the death of William, or his lot would have been included ; also, that no partition was considered necessary, arid this was further shown by their subsequent acts. IX. The fact that each deed purports to convey the whole lot, and not an undivided part, furnishes no ground for presu- ming a claim of a sole ownership in fee. (Jackson \. Manciits, 2 Wend. 357.) Tenants in common have a joint possession. (Cole v. Irvine, 6 Hill. 634.) And in a conveyance by a tenant in common of an undivided share 1 , the conveyance is properly of the whole. (Edwards v. Bishop, 4 Coins. 64.) Besides each grantee had the whole lot for life. (Doe v. Reed, 5 B. $* Aid 232. Livett v. Wilson, 3 Bing. 115.) And the convey- ances being by deeds operating under the statute of uses, only conveyed such an estate as the grantor actually had in the prem- NEW YORK MAY, 1855. J35 Mount v. Morton. ises. (Jackson v. Brinckerhoff, 3 John. Cas. 101. Sparrmvv. King-man, 1 Corns. 251. Collyer v. Mason, 2 Brod. . fy Blng. 685.) X. The claim of title is so far accounted for by the will as to rebut the presumption of a partition. (Doe v. Millett, 12 /wriX 1021, .Doe v. Powell, 8 Q. . Rep. 576.) The presump- tion is that the claim was founded on the will. (Benson v. Bollcs. 8 Wend. 175, 181.) XI. There can be no presumption of a parol partition. A parol partition can only be among tenants in common holding under distinct titles, and must be accompanied by livery of seisin or followed by possession. (Baker v. Lorillard, . Corns. 257.) There cannot be a presumption on a presumption. (Ham- mond, adrn'r, v. Smith, 17 Verm. 231. Pennington v. Yell, 6 English, [Ark.] 213. Duncan v. Little, 2 BibVs R. 26.) If, therefore, from the acts of the parties, it may be presumed that each claimed a sole estate in fee in a single lot, the pre- sumption mudt there rest. That presumed fact cannot be made the basis of the further presumption that that claim arose out of a partition, and not from the will ; especially as the will shows enough to warrant the presumption that the claim was founded on it, and the reasonable and legal presumption is, that each child supposed the will gave him or her a lot in fee, and that the purchasers from the children were of the like opinion. XIII. There is no evidence nor ground for presuming that in the dealings with the property by the testator's children there was any concealment of the will. The defect in the claim of title in fee was therefore obvious, and the- presumption is, the defect was known to the purchaser. (Platt v. Scntt, 6 Blackf. 390. Lewis v. Jones, 4 Barn. $* C. 506. Lane v. Shears, 1 Wend. 433.) Fraud is never presumed, (Dardnme v. Hardwick, 4 Eng. R. 482,) and cannot be inferred by ar- gument (Austin v. Cummings, 10 Verm. R. 26.) XIV. Estoppels are not favored they are odious to be used as a shield sometimes, never as a sword. When an estop [36 CASES IX THE SUPREME COUHT. Mount v. Morton. pel in pais takes place, (Carpenter v. Stilicell, 1 Kernan, 61. Lawrence v. Brown, 1 Seld. 401. Wright, v. Douglas. 10 /fork 97. Griffith v. Beech er, Id. 432. Ryerss v. Farwell, 9 / sw/, 8 Cow en, 543. Brannock v. Bouldin, 4 Iredcll's Law R. 61. Lewis v. Carstairs, 5 TF. 4" & 209. Wat kins v. J3eeA-, 12 Akw /famp. 373.) XV. The estate each child took under the will was a ques- tion of law. Their assertion of estate was only their construc- tion of the will. It was not a question as to the quantity of land, but the quantity of estate in the land. A party is not estopped by his assertion of a conclusion of law. (Brewsler v. Striker. 2 Corns. 41. Chantaitque Bank v. White, 2 Seld. 253. Jewett v. Miller, Court of Appeals, Dec. 1852. Moore v. Hitchcock, 4 Wend. 292. Hawley v. Bennett, 5 Paige, 104. Cowper v. Cowpcr, 2 P. TFwis. 720. Mat hews on Pres. JSv. 198. Sclden v. Vermilya, 3 Corns. 534.) XVI. All estoppels must be mutual, and they bind only par- ties and privies. (Sparrow v. K'mgman, 1 Corns. 247. A grantee in a deed is never estopped to deny his grantor's ti- tle. (Sparrow v. Kingman, 1 Corns. 247. Averillv. Wilton, 4 fiarfi. 180. M v. /ft//, M*. 419.) Jacob's deed to Sivalls did not estop Barbara's children. Eliza's deed did not estop Barbara's children. The mortgage by Barbara did not estop the claim of her children on Jacob's lot. (Lawrence v. Brown, 1 Seld. 401. Jackson v. Brinkcrhoff, 3 John. Gas. 101.) The declaration in the mortgage by Barbara and her husband that a sale should be a perpetual bar did not bind her children. (Dominick v. Michael, 4 Sand. S. C. It. 423. Albany Fire Ins. Co. v. Bay, 4 Corns 9. Doe v. Errington, 6 Bing. N. C. 83. Jackson \. Vanderheyden, 17 John. 167. Carpenter v. Schermerhorn, 2 /&. CA. .R 314.) XVII. The decree of foreclosure did not bar Barbara and her heirs. It was pro confesso. (1 R. L. 102, 3.) Barbara had no next friend. (Lewis v. Smith Court of Appeals^ 1854. Voorhies 1 Code, p. 89, note.} NEW YORK MAY, 1855. 137 Mount v. Morton. Jas. R. Whiting, for the respondents. The premises in question are parts of the lots, called in the conveyances No. 137 and No. 136, the first being the corner lot, and the other the lot adjoining the corner, No. 137 bqing the same given by the will to Jacob, and No. 136 being the same given by the will to Barbara. I. The fee of those lots was vested by the will in Jacob and Barbara severally. It is undoubtedly true that prior to the revised statutes the word " give," alone, did not in a will create a fee ; but it has always been held that no technical words are necessary to carry a fee, and that the intention, if it can be le- gitimately gathered from the various provision* of the will, is to govern. The words "give my estate" have been held to carry the fee. (Jackson v. Babcock, 12 John. 389. McLean, v. McDonald, 2 Barb. 8. C. R. 534.) The intent of this tes- tator is to be gathered from all the provisions of this will, and looking at them, it cannot be doubted that he intended to vest the fee of those lots in his children. ^ (1.) He clearly intended to dispose of all his interest in the property, for he gives an estate for widowhood at least, and contingently, (and in point of fact in this case,) for life to his widow, and then " gives" the lots to his children ; it has never been decided, and I trust never will be, that when an estate for life is devised to A. in a lot, and then the lot is " given" to B., that B. takes only a life estate. Such a decision and construction would be a manifest absurdity. (2.) The testator uses the word "give," in the clause as to the farm ; in that clause, his clear intent is to dis- pose of the whole interest, for he directs the sale and conver- sion into money, and its appropriation to the use of his four children. The word " give," here, must have been used to cre- ate a fee, otherwise the sale of the farm would produce nothing, and then nothing could be got for the use of the children. The widow already has an estate in the farm during her life, if she do not marry, and at all events during her widowhood, and of course any sale of the farm must be subject to this interest. Now if the children have only a life estate in the farm, the sale of such an estate subject to the widow's estate, manifestly would produce nothing effective for the children's use. . Where- VOL. XX. 18 133 CASES IN THE SUPREME COURT. Mount v. Morton. as the sale of the fee, subject to the widow's rights, would pro- duce a substantial sum. The word " give," therefore, in this clause operates to carry a fee, according to the clear intent of the testator, and having used the word here for that purpose, it shows what meaning he intended for the same word in what sense he used it in the preceding clause, and this is a fair and legitimate rule of construction a proper and careful modo of arriving at the intent and meaning of the testator in his use of the word " give," in his will generally. (3.) If the word " give" is not held to create a fee in these lots, it follows that all the testator gave, or intended to give to his children, was a life estate, subject to the life estate, or, at any rate, to the freehold estate already given to his wife ; such an interest would be valueless, or next to valueless, and it cannot be supposed that a father so intended. The rule of the common law being, that the Avord " heirs" whether in a will or deed, was requisite to create a fee, it was held that the word " give" alone did not create that estate ; but, the rule being equally undoubted, that in a will the intention is to govern, if that intention can be ascertained by construing all parts of the will together, it has not I appre- hend ever been doubted, that the word "giv be imported liquor, be forfeited and destroyed. VII. The judgment of the court of special sessions was con- trary to law and the evidence, and should be reversed. /. M. Van Cott, and N. F. Waring, for the plaintiffs. The attention of the court is asked to two questions, 1st. To the ex- tent of the prohibitions contained in the act of 1855, to prevent pauperism and crime ; and 2d. To the validity of such prohi- bition. I. The prosecutor claims, that the exception in section 1, ex- tends only to imported liquor while in the original package of importation. The exception does not, in terms, name foreign or imported liquor at all ; and the court is compelled to look be- yond the act and into the treaties and statutes of the United States, to learn what is excepted. If those treaties and stat- utes said, in terms, (what the supreme court in Brown v. Mary- land, 12 Wheat. 419, decided they say by implication) that imported liquors may be sold while in the original packages, those terms would have to be imported into our statute, and being there, would clearly define the scope and limit of the ex- ception. No rule of interpreting penal statutes requires the court to disregard this decisive method of expounding this ex- ception. If any doubt were left by this view, it would be dissipated by 22. The sole office of that section will be found to be, to de- fine and limit, the undefined and unlimited expressions of sec- tion 1. It contracts the large expressions, " intoxicating liquor" in section 1, by excluding from their operation much that those large terms would include. And it defines the exception in section 1, to mean imported liquor " in the original packages." It does not weaken this to say, that this definition in section 22, misapprehends the decis- ion in Brown v. Maryland ; for we are inquiring what the CASES IN THE SUPREME COURT. The Tcople v. Toynbee. legislature intended. We say, they intended to limit the ex- ception to the " original packages," and that that intention is not disproved by saying they also intended to limit it to such original packages, while in the hands of the original importer. The paramount rule of construction is, that the intention of the legislature is to take effect. All other rules are subsidiary to this. For two striking illustrations, in the case of penal statutes. see People v. Bedell, (2 Hill, 196 ;) also under the general bank- rupt act, Mr. Lord's opinion concedes, that the intent of the legislature, so to limit the exceptions, is pretty decisively indi- cated. And we say. that such intent speaks through all the terms and the entire frame of the act. II. The prohibitory part of the act is within the constitutional competency of the legislature. 1. The prohibition is not total. (1.) It permits the liquor to be kept and used by its owner for any and every purpose. (2.) It permits the owner to export the whole of it. (3.) It permits an unlimited sale by the owner (from 9th April to 4th July.) for a period of three months. within the state, subject to existing laws. In this respect, the act is analogous to the statutes abolishing slavery after a pros- pective date. And like the recording acts. See Varick v. JBriggs, (6 Paige, 323, unanimously affirmed by court of er- rors, 22 Wend. 543.) where it was held, that an owner who did not record his deed within the limited period, forfeited his estate to a subsequent bona fide purchaser, who first recorded his deed. (4.) It permits the sale of imported liquor under treaties and acts of congress. (5.) It permits the sale (under license, and the validity of a license system is not denied) of all liquor, within the state, for mechanical, manufacturing and medicinal purposes. (6.) And finally, it only prohibits a sale for particular purposes, and the keeping it for such unlawful sale. The question as to the power to pass prohibiting laws as presented by this act is! thus greatly narrowed. But the act may be said to involve the whole principle of prohibitory laws, and I shall so discuss it. (1.) On grounds of abstract reason, relating to the nature of civil society, and to the DLTCHESS JULY, 1855. 175 The People v. Toynbee. particular organic societies framed on the English model ; and (2.) On the terms of the state constitution, and the principles of adjudged cases. III. The act in question is in the nature of a police regula- tion, and falls within the necessary powers of civil government. The fundamental idea of a police regulation is, that it forbids acts deemed injurious to the society, and which the collective will and force of the society are alone competent to prevent, Society is founded on the paramount law of self defense. Its organism should therefore arm it against all internal and external foes. To that end, there must reside somewhere in it the power to determine what is hostile to its existence and what means shall be used - to repel the danger. In a pure democracy that power would reside in the collective people. In a representa- tive government, it will be lodged in some great department. In modern political societies, and especially in those formed on the English model, that sovereign power is lodged in the legis- lative department. It is, confessedly, lodged in no other de- partment in our American system. Wherever lodged, it must be as ample as when originally exerted by the collective people in a democracy. In the nature of things it is a comprehensive and undefined power. The exigencies of society, as to persons and things, and as to time, place and circumstances, are infi- nite, and so must be the power that provides for those exigen- cies. " The contingencies of society are not reducible to cal- culations ; they cannot be fixed or bounded, even in imagination. Will you limit the means of your defense, when you cannot ascertain the force or extent of the invasion ?" (Hamilton, Works, vol. 2, p. 457.) " When you have divided and nicely balanced the departments of government ; when you have strong- ly connected the virtue of your rulers with their interest ; when, in short, you have rendered your system as perfect as human forms can be, you must place confidence, you must give power." (Id. 454.) And see the arguments of Mr. Hamilton and Mr. Madison, in the Federalist and in the letters of Pacificus and Helvedius, where the nature of legislative and judicial powers is discussed, and this principle established by irresistible argu- 76 CASES IN THE SUPEEME COUIiT. The People v. Toynbee. ncnts. To limit this general power to defend the society against internal and external dangers, would leave it vulnerable at that point, and invite attack where it was thus less undefend-" ed ; as Achilles was mortally wounded in the heel. It would he found on investigaiton, that no American constitution con- tains such a limitation among its restrictive articles. Not one limits the power to determine what physical acts or facts are dangerous to society, and what means shall be used to repel the danger. And it results from the constitution of society and tne nature of government, that what powers of defense are not integrated in the organism itself, do not exist any where. If it is said the legislature cannot by statute prohibit a certain traffic, because the prohibition violates the first principles of society, we answer it would result that neither could the people, by their constitution, prohibit it ; and if the statute is to be overthrown by the judiciary on any such abstract notion, it would be equal ly at liberty and bound to overthrow a like express constitutional prohibition ; the limitation, quoad hoc, being equally upon the people and the people's representatives, to the legitimate ends of society and government. The denial that the people have delegated the power to the legislature, to enact the law in ques- tion, on the ground on which it is placed, is the denial of the power of the people to delegate such an authority. But if the power of the collective people to enact such laws, is conceded or proved, we proceed to maintain, IV. Under the state constitution, the legislature is invested with power to pass prohibitory laws, like that in question. (Constitution 1777, 2.) " The supreme legislative power within this state shall be vested in two separate and distinct bodies of men." (Const, of 1822, 3, art. 1, 1.) "The legislative power of this state shall be vested in a senate and Assembly." (Const. 0/1846, art. 3, 1.) "The legislative power in this state shall be vested in a seriate and assembly." What do the terms " the legislative power," and " the supreme legislative power," import ? The two expressions are undoubt- edly equivalent. The grant is of " the" legislative power the whole power the power as large in its substance as it can be DUTCHESS JULY, 1855. 177 The People v. Toynbee. conceived in idea. The distinction between the federal and state governments is familiar. The federal government takes no power, not expresssly or by necessary implication granted ; the state government takes all power, not expressly or by necessary implication withheld. The terms in which the legis- lative power is granted are intentionally unlimited and unqual- ified. The framers intended to grant all, so far as the articles cited are employed, and to provide elsewhere, by express re- strictions, for the only limitations by which the legislative department should be circumscribed. The state government having been instituted by English colonists, and avowedly on the English model, we are to ascertain the import of the terms they have used by learning the sense in which they were under- stood in the English law, and by those colonists and the cotempo- rary writers. That is the approved mode of defining constitu- tional language. Dash v. Van Kleeck, per Spencer, J. (7 John, 488, 9.) Colder and wife v. Bull and wife, (3 Dallas, 896.) In these cases, the court take Blackstone's definition of ex post facto laws, as an authoritative exposition of those terms in the constitution. (4 Cokds List. 36.) " The power and jurisdiction of parliament is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds. Lord Carnden, (Sutic/c v. Carrington, 19 How. St. 7V. 1066,) having spoken of property as sacred, he adds, but "it may be taken away by laws of forfeiture and for the public good," " every man, by common consent, gives up that right for the sake of justice and the general good." (1 Kent's Com. 320.) " The power of making laws is the supreme power in a state." (1 Black. Com. 160. et seq.} " It (parliament) hath sovereign and uncontrollable authority in the making, con- firming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical or temporal, civil, military, mar- itime or criminal, this being the place where that absolute despot- ic power, which must in all governments reside somewhere, is intrusted by the constitution of these kingdoms. All mischiefs und grievances, operations, and remedies, that transcend the VOL. XX. 23 178 CASES IN THE SUPEEME COLRT. The People v. Toynbee ordinary course of the laws, are within reach of this exi raordi- nary tribunal." (2 Story's Com. on Const, p. 15, 582.) " The truth is, that the legislative power is the great and over- ruling power in every great and free government." (Id. 533.) " There are many reasons which may be assigned for the engrossing influence of the legislative department. In the first place, its constitutional powers are more extensive and less capable of being brought within precise limits, than those of either of the other departments." After speaking of the limits on the executive and judicial, he adds : <; On the other hand, the legislative poiver, except in the few cases on constitutional prohibition, is unlimited. It is forever varying its means and its ends. It governs the institutions, and laws, and public policy of the country. It regulates all its vast interests." Does not this language describe a transcendent power ? Equally decisive is the language of Iredell, J. and Spencer. J. in the cases cited, supra, from Dallas' and Johnson's Reports, Broom's Legal Maxims, 6. "From the principles under con- sideration, and from the very nature of the social compact on which all municipal law is founded, and in consequence of which every man when he enters into society gives up a part of his natural liberty, result those laws which, in certain cases, author- ize the infliction of penalties, the privation of liberty and even the destruction of life, with a view to the future prevention of crime and to insuring the safety and well being of the public." (Rutherforth's last. b. 2, eft. 3, 1 to 5.) In section 3, he says : " Those who are united in a civil society, have agreed to put themselves under the conduct of the common understanding, to have their duties regulated, and their rights adjusted by the legislative power of that society." (Rousseau's Social Cwi- pact, c/i 4.) " If the state, or the city, be a mere moral person, whose life depends on the union of its members, and if the most important of its concerns be that of its own preservation, it should certainly be possessed of an universal compulsive force, to move and dispose each part in such a manner as is most conducive to the good of all. * * * The social compact gives to the body politic an absolute power over all its mem- EUTCITESS JULY, 1855. 179 The People v. Toynbee. ners. * * * It is agreed, that what an individual alienates of his power, his possession, or his liberty, by the social compact, is only such parts of them whose use is of importance to the community ; but it must be confessed, also, that the sovereign is the only proper judge of this importance" Locke and Paley on government are to the same effect. De Lolme, S. P. ch. 3, 7, 8. Sydney on Government, ch. 3, 44, 45, 46. He maintains the same principle, as inhering in the very nature and necessities of society. In section 45, he says, "If it be objected that I am a defender of arbitrary powers, I confess I cannot comprehend how any society can be established or sub- sist without them. * * * The judgments of men will vary if they are left to their liberty, and the variety that is found among them, shews they are subject to no rule but that of their own reason, by which they see what is fit to be embraced or avoided, according to the several circumstances under which they live. The authority that judges of these circumstances is arbitrary, and the legislators shew themselves to be more or less wise and good, as they do, rightly, or not rightly, exercise this power. The difference, therefore, between good and ill governments is not, that those of one sort have an arbitrary power which the others have not ; for they all have it; but that those which are well constituted, place this power so as it may be beneficial to the people." (Guizofs History of Representative Govern- ment, p. 442.) " But we must necessarily come at last to the supreme power which superintends all others, and is not itself ruled or restrained by any visible and constituted power." For further illustration of the principle contended for, and of sove- reign power generally, see 1 Bl. Com. 48, 9, 51. 2, 147 ; Vat- tel, b. 1, ch. 1, 1, 2 ; ch. 3, '26, 38: ch. 20, 240, 244; Grotius on War and Peace, b. 2. ch. 14, 7 ; Id. b. 3, ch. 22, 7 ; Pn/endorfs L. Nat. and Nat. b. 8, ch. 5, 1, 3, 6, 7 ; Thomas' Univers Jurisp. pp. 170, 1, 165. 6. That it is competent for the legislature, " acting on a broad and general regard to the interests of the community, to declare and limit the uses to which property may be applied," see ^tuyvesant v. Mayor of New Ybr/ ] ] The People v. Tojmbee. to the accused whether his character, his liberty and his prop- erty are made dependent upon the verdict of twelve or of six men. Innocent men have sometimes escaped from the worst of punishment by the voice of a single juror ; and in such cases the larger number of course affords the greater protection. It is true, too, that the chance of escape of the guilty is increased by the same means. But in the administration of justice it is at least as essential to protect the innocent as to punish the guilty. The right claimed by the defendant is an important one, and if his claim was well founded, the subsequent proceedings should not have been had, and the judgment resulting from them against the accused was void. On looking over the entire statute, it seems to me that the provisions relative to the trials under it indicate an intent to confine them to the special sessions. The magistrate who issues the original process constitutes the court ; they are identical. The fifth section provides that such court shall not be required to take the examination of the accused, but shall proceed to trial as soon as the complainant can be notified. The provisions of the act relative to appeals apply exclusively to judgments in the courts of special sessions, and are mostly inapplicable to trials before the general sessions, or oyer and terminer. Many of them are very important. The right of appeal is given to the complainant as well as the defendant. If the defendant ap- peals, he is required to give a satisfactory bond that he will not, during the pendency of the appeal, violate any of the provisions of the statute. The ordinary power of amendment, of the ap- pellate court, is considerably increased, and any judgment or verdict against evidence may be reversed on appeal, as (in the words of the statute) ' : in civil actions." It is not material to inquire here whether verdicts against evidence in civil actions can be reversed on appeal. I am considering the provision sim- ply as indicative of the intention of the legislature. Now if it was designed by constituting offenses under the act misdemean- ors, to confer the right to try the accused in the courts of gen- eral sessions and oyer and terminer, the legislature would, I think, have made the provisions relative to appeals applicable 2 1 2 CASES IN THE SUPREME COURT. The People -v. Toynbce. to those, courts also, otherwise their work would have b(en but half done. There are other provisions in the statute indicating a design that all trials under it should be had in the special sessions, and not any to the contrary. The rule in these cases is, that when the statute creates a new offense, and particularly describes a method of trial and a punishment adequate to the offense for its violation, the complainants, whether the public or individuals, are confined to the remedies expressly given in such statute. I am, therefore, inclined to agree with the justice in the con- clusion to which he arrived, that so far as the statute went, he could not be required to take the proffered bail. But the more important question arises whether the (in effect) denial of the privilege claimed by the defendant is not violative of the con- stitutional right of trial by jury. If it be so, the enactment, so far as it relates to compulsory trials in the courts of special sessions, is void. The constitution of this state which -went into operation in 1847, ordains, (article 1, 2,) that the trial by jury in all cases in which it has been heretofore used, should remain inviolate forever. The language is strong and evinces the importance wiiicii was justly attached to the privilege. The terms used in the constitution must be applied according to their meaning at common law, unless a different interpretation is clearly indica- ted. There is no evidence of any different intent in reference to this provision, nor can any be inferred. A jury, by the rules of the common law, must consist of twelve men. It was there- fore very properly remarked by Johnson, J., in Cruger v. The Hudson River Rail Road Company, (2 Ker. R. 198,) that the constitutional provision which I have quoted, imports a jury of 12 men. whose verdict must be unanimous. In reference to the cases to which it refers, and whether they include the sub- sequently created cases, I will quote from an opinion in the case of Wood v. The City of Brooklyn, (14 Barb. 432.) be- cause it expresses my present sentiments on this subject. " This provision -relates to classes and of course includes the individu- al cases which they comprise. In no other way can constitu- tional enactments preserve that continued efficacy which is so DUTCHESS--JULr, 1855. 213 The People v. Toyribee. essential for the public good. Whenever, therefore, a new case is added to a class it becomes subject to its rules. A crime newly created is subject to any constitutional regulations rela- tive to the class of crimes generally. The constitutional pro- vision refers to usage, and that must control and define its application. It is a matter of public notoriety that accusations for crimes have generally been tried before a jury. If there have been exceptions they have not been sufficiently numerous to affect the general usage. The introduction of a new subject into a class renders it amenable to its general rules, not to its exceptions, unless there is something peculiar calling for that application. To allow the legislature to except from the opera- tion of a constitutional provision by direct enactment, a matter clearly falling within its meaning, would sanction a fraud upon the organic law, and might 'in the end destroy its obligation." These remarks were originally applied to penalties, but in the quotation I have substituted crimes to which they are alike ap- plicable. The sentiments Avere expressed by me, in 1852, and I cite them with the greater satisfaction as they have recently received the concurrence of three of my brethren. The same principle was applied by Chancellor Walworth to the crime of murder in the case of The People v. Enoch, decided by the court for the correction of errors. (13 Wend. 159.) In his opin- ion in that case he made the following ,remark : " Malice was implied in many cases at the common law where it was evident that the offenders could not have had any intention to destroy human life, merely on the ground that the homicide was com- mitted while the person who did the act was engaged in the commission of some other felony, or in an attempt to commit some offense of that grade. This principle is still retained in the law of homicide, and it necessarily follows, from the princi- ple itself, that as often as the legislature creates new felonies. or raises offenses which were only misdemeanors at the common law to the grade of felony, a new class of murder is created" (it would probably have been more accurate to have said the previously existing class was enlarged) " by the application of this principle to the case of a killing of a human being, by a 2 ] 4 CASES IN THE SUPREME COURT. The People v. Toynbee. person who is engaged in the perpetration of a newly created felony. The court and jury in such cases immediately apply the common law principle, and the killing is adjudged to be mur- der or manslaughter, according to the nature and quality of the crime that the offender was perpetrating at the time the homi- cide was committed." There could not be a stronger case to illustrate the rule that newly created crimes are subject to the incidents of the class into which they are introduced, without any express provision to that effect in the statute. By the terms of the prohibitory act the offense imputed to the defend- ant was characterized as a misdemeanor. The usage in crimi- nal cases prevailing immediately before, and at the time of the adoption of the constitution, and to which it refers, was undoubt- edly conformable to the provisions of the revised statutes which had been in operation since 1830. (2 J?. S. 711, 2, 3.) Pursuant to those provisions persons accused of misdemeanors had the right in all cases, to giv/e bail for their appearance at the next court, having criminal jurisdiction, which must be either the general sessions or oyer and terminer, and in their doing so, or, what was equivalent, making an offer to that effect which was refused, a court of special sessions could proceed no further. That, in effect, secured to the accused at their op- tion the right to be tried by a jury of twelve men, and to be exempt from punishment except by their unanimous verdict. That right was denied to the defendant in the case under con- sideration. If the prohibitory act called for such denial it con travened the constitutional ordinance and was so far void ; or if it impliedly permitted the continuance of the privilege it should have been accorded to the defendant on his demand. So that qnaciinque via data, this objection is fatal to the conviction. The only remaining question which I deem it proper to con- sider, is : Whether the act in question, so far as it purports to prohibit the sale of intoxicating liquors to be used as a bever- age, is valid. The objection urged against that feature of the act is, that it is an exercise of despotic power, calling for an unconstitutional interference with the rig' /its of property. All tiivilized nations agree in asserting the rights of property, and DUTCHESS JULY, 1855. > 1 5 The People v. Toynbee. holding them sacred, as essential to the prosperity and happi- ness of man. Sir William Blackstone says, (2 Com. 2,) that "there is nothing which so generally strikes the imagination and engages the affections of mankind as the right of prop- erty, or that sole and despotic dominion which a man claims and exercises over the external things of the world, in total exclu- sion of the right of any other individual in the universe ;" and Chancellor Kent well remarks, (2 Corn. 319,) that " the sense of property is graciously bestowed, on mankind for the purpose of rearing them from sloth and stimulating them to action ; and so long as the right of acquisition is exercised in conformity with the social relations and the moral obligations which spring from them, it ought to be sacredly protected. The natural and act-' ual sense of property pervades the foundations of social improve- ment. It leads to the cultivation of the earth, the institution of government, the establishment of justice, the acquisition of the comforts of life, the growth of the useful arts, the spirit of commerce, the productions of taste, the erections of charity, and the display of the benevolent affections." There are, un- doubtedly, visionary theorists who advocate the community of property in small societies ; but the general sense of mankind indicates that civilized society cannot exist when the right to separate and distinct property does not prevail, or is not sacred- ly protected. The people of this state have shown their appre- ciation of the rights of property, in their organic law, by declar- ing, {art. 1, p. 6,) that "no person shall v be deprived of life, liberty or property, without due process of law." We are thus as effectually protected in the enjoyment of our property as of our own lived or our liberty. The protection given to prop- erty as well by the sense of mankind as by positive enactment makes no distinction as to its greater or less utility. It ex- tends to whatever has been held and enjoyed as such by custom and usages of the country. No pmver is given to any man or body of men to discriminate. We hold our property inde- pendently of the varying and sometimes capricious estimates of our fellow men. So universal has been the sentiment in favor f the right, and the determination to support it, that the act 216 CASES IN THE SUPREME COURT. The People v. Toynbee. in question is, with a single exception, the only instance of an attempt to legislate any species of property substantially out of existence. The exception to which I allude, is the original abolition of slavery by statute. That institution, however, did not exist, nor were slaves considered as property at common law. If tLey had been it might have been a grave question whether their owners could have been deprived even of such property without compensation. But at any rate, that was an extraordinary case, having reference to what was generally admitted to be the original rights of man, which the statute was designed to enforce, and cannot be considered as a sanction for the violation of the constitutional protection of property. The protection of any species of property must necessarily ex- tend to its essential and definitive characteristics, especially those which constitute its main value. Otherwise it might be rendered useless in the hands of the possessor, and its protec- tion would be wholly illusory. One of the essential characteris- tics of property is its vendibleness, especially for the principal use to which it can be appropriated. That necessarily results from the despotic dominion over it which Blackstone ascribes to the possessor. Chancellor Kent says. (2 Com. 319,) that the exclu- sive right of using and transferring property follows as a natural consequence from the perception aud admission of the right itself, and for this he quotes Grotius, (b. 2, ck. 6, 1.) And again the same learned commentator says, (/>. 320 ; vol. 2.) ' ; The power of alienation of property is a necessary incident to the right, und was dictated by mutual convenience and mutual wants." This is so entirely in accordance with the general sentiment of mankind and the universal practice, that it cannot' be disputed : so far as my information or recollection extends, the present is the first and only attempt to interfere with, and prevent the genera] right of sale of any species of property. That the manner of selling it may be regulated so long as the right is essentially preserved, there can be no doubt. It is upon this principle that our former laws regulating the sales of spirituous liquors Avere passed. They were, however, by no nr.eans pro- hibitory of the right. Every man was at liberty to sell in OUTGUESS JULY, 1855. 217 The People v. Toynbee. quantities exceeding five gallons, and a selected class in any quantity. Upon the same principle sales at auction of goods generally, sales by peddlers, and sales by apothecaries of poisonous drugs have been regulated, and sales of deteriorated and unwholesome provisions have been prohibited. These were merely police regulations, and it did not interfere with the ordi- nary sale of any property in its appropriate condition. So, too. it is competent for the legislature to prohibit the abuse of prop- erty so as to make it peculiarly dangerous or deleterious to society. It is on this principle that laws have been passed to prevent the storing of gunpowder in cities, to regulate the con- struction of buildings so as to prevent unnecessary exposure of lives in crowded places, and to suppress gambling in lotteries or otherwise. In none of these instances is there any interfer- ence with the ordinary use of property. There is also a power to prevent or abate nuisances. But to that there must necessarily be a limit. It cannot be extended to the general destruction of any species of property, or of its organic characteristics. If it could go thus far none would be safe, The use of animal food, tea. coffee and fruits, each of which is considered by many to be deleterious, might be prohibited. As the legislature has con- fessedly the power to adopt police regulations so as to prevent the abuses of property, it may be asked where are the limits to which it can be legitimately applied, and by Avhom are such limits to be prescribed ? It may be very difficult in many cases to draw the line, but that can be no reason for claiming an un- limited power. The right is simply one of regulation, not of destruction. When an enactment is clearly destructive of a right, and not simply reformatory of its abuses, there can be no question as to its invalidity. There is no reason for claim- ing discretionary power in such cases. That can be invoked only in cases of doubt. It can be no sufficient reason for act- ing clearly wrong in any particular matter that the exact line of separation between the right and the wrong cannot be easily 'defined. Upon the whole, my impression is that the right of property extends not only to its corpus, but to its ordinary and essential characteristics, of which the right of sale is one, and VOL. XX. 28 218 CASES IN THE SUPREME COURT The People v. ToynLee. that it can be controlled only so far as to prevent its abuse, without destroying such characteristics. It must be conceded that an unlimited and unrestricted power to take the life, the liberty, or the property of our fellow man, is despotic. And it matters not whether it is lodged in the hands of one or many, or whether the depositories are elective or hered itary, the character is the same. It was contended on the argument by the counsel for the people, that the legislature of this state possess despotic legislative power by reason of the general constitutional grant. To that I cannot assent. It is undoubtedly true that absolute power exists originally in the people constituting a distinct and separate community. It is competent for them to establish for themselves a despotic govern- ment in one man, or many men, if they should choose to do so, although an intention to confer absolute power can never be infer- red, and certainly not in a country claiming to be free. But the people of this state when they entered the union deprived them- selves of the power of establishing any other than a republican form of government. (Const, of U. S. art. 4. 4.) There is not, perhaps, any very accurate description of a republican form of government, but it is generally understood that it can- not be subject to a despotism in any of its public functionaries. The man who is the subject of despotic power, and I care not whether it be in the legislative or executive department, is a slave and not a republican. Liberty and despotism can never exist together. No general grant would confer an unlimited power over the lives, the liberty, or the property of the citizen. It was well remarked by Judge Story in Wilkinson v. Leland, (2 Peters, 657,) that " the fundamental maxims of a free gov- ernment 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 assuming that the power to violate and disregard them a power 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.' ; And Judge Bronson said in Taylor v. Porter, (4 Hill, 145,) DUTCHESS- JULY, 1855. > 1 9 The People v. Toynbee. 'The security of life, liberty and property, lies at the founda- tion of the social compact, and to say that the- grant of legislative power includes the right to attack private property, is equiva- lent 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 qualifi- cation in the whole instrument, I should feel great difficulty in bringing myself to the conclusion that the clause under consid eration." (conferring legislative power in general terms,) " cloth- ed the legislature with despotic power. 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" But, as I have already remarked, the constitution of this state provides expressly that no person shall be deprived of life, liberty or property without due process of law. This provision is general and applies to and of course limits the power of the legislature. That body can no more deprive any one of his property without due process of la.w than can a private .individual. An act of the legislature is not the due process of law mentioned in the constitution. Those words, as was remark- ed by Judge Bronson, in the case last cited, " cannot mean less than a prosecution or suit instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt or determining the title to property." In other words, a man cannot be legislated out of his life, liberty or property. That intoxicating liquors were property at the time of the adoption of our state constitution there can be no doubt. They had been for many ages in general use, as well by the prudent and the virtuous as by the reckless and the vicious. To have denied to the farmer his cheerful glass of cider, or to the labor- ing man when worn down with fatigue, the support of his cus- tomary restorative, would have excited as much astonishment and created as much resistance in the old time, as would the denial of tea or coffee to our ladies at the present day. Wheth- er those who have gone before us, including the greatest, wisest and best of their days, were right in thus indulging their tastes, or whether their conduct was indiscreet arid deserved 220 CASES IN THE SUPREME COURT. The People v. Toynbee. to be characterized as criminal, according to the opinion of modern reformers, are not questions for the consideration of the judiciary. 1 allude to the former practice to show that intoxicating liquors were property with the general assent of mankind. It was said by Chief Justice Taney, in the license cases from Rhode Island, New Hampshire and Massachusetts, (5 Howard, 577,) that " spirits and distilled liquors are universally admitted to be subjects of ownership and property, and therefore subjects of exchange, barter and traffic, like any other commodity in which a right of property exists ;" and Catron, J., remarked, in the same cases, that " ardent spirits have been for ages and now are subjects of sale, and of lawful commerce, and that of a large class throughout the civilized world, is not open to con- troversy. So our commercial treaties with foreign powers de- clare them to be, and so the dealings in them among the states of this union recognize them to be." That such liquors are property still admits of no doubt. Their importation from for- eign countries is expressly sanctioned, and they are heavily taxed by congressional legislation. If the acts of congress had been legitimately passed by the legislature of this state, we should have been virtually precluded from denying the charac- teristics 'of property to what we had directly admitted within our borders and subjected to taxation. The faith of states, which should ever be preserved inviolate, would have forbidden it. We are equally, though possibly not as directly, concluded by the acts of a general government, of which by our own volition we are a member. Intoxicating liquors are still freely admitted and heavily taxed ; and their sale by the importer, while in the cask or vessel in which they were introduced into the country, and their purchase by any one. are authorized beyond the reach of state legislation. It is true that their subsequent sale was. at the time of the adoption of our state constitution, subject and no doubt lawfully subject to the regulations contained in our excise laws. The supreme court of the United States has decided, on various occasions, that state laws regulating sales of intoxicating liquors are not prohibited by the constitution 01 DUTCHESS JULY, 1855. 21 The People v. Toynbee. laws of the United States. Some of the judges, in the license cases from three of the New England states to which I have alluded, expressed opinions that state laws prohibiting entirely the sale of intoxicating liquors, might not conflict with the powers conferred upon and exercised by the general govern- ment ; but the decision of that question was unnecessary, as it was admitted by the judges that the statutes of those states were not prohibitory. The remarks of those learned judges as to the right of the states to pass laws prohibiting the sale of foreign liquors, had no reference to the limitation of the power of the legislature of the states by their own constitutions ; and, besides, they were mere obiter dicta, as they were upon a ques- tion not at all involved in the cases before them, and would not, according to a rule they had laid down for their own conduct, at all control them or the court of which they were members, in any future determination. From the considerations to which I have alluded, I have no doubt but that .imported liquors are still, as they always have been, property. As to liquors of domestic origin, there are other and possibly more difficult questions. The control of the state over them has not been, nor unless they are introduced from other states can it be, subject to congressional legislation. Whether it is competent for the legislature to prohibit their manufacture in this state, is not now a question, as that has not been done. They can yet be lawfully manufactured, and when manufactured are still property, and as such are, equally with imported liquors, protected by the aegis interposed by our state constitution. It is clear, as I have before intimated, that the protection to property extends to and includes its generally conceded charac- teristics, especially those without which it would be valueless ; otherwise it would be but nominal and scarcely that. It was contended, however, by the counsel for the people, that the sale of intoxicating liquors was not prohibited by the statute ; that any of them might be sold for medicinal, manufacturing and sacramental purposes, and that foreign liquors might be sold by the importers, in the orignal cask or vessel, to any one. The permitted sales would be very inconsiderable. And the statute 222 CASES IN THE SUPREME COURT. The People v. Toynbee. if carried into full and its designed operation would effectually prevent its use as an ordinary beverage by the great mass of the people the use for which it was mainly designed, and with- out which it would be of little or no value. It might be acces- sible to the wealthy, but would be unattainable by men of mod- erate means. That would create a distinction between the rich and the poor which should ever be avoided in legislation, if it is desirable that our laws should be respected or enforced. It is no matter what may be the pretense, the denial would be a re- striction ; and that to be just, should operate upon all ; if not equally, the inequality should not be the direct and palpable effect of the statute. I consider the statute in question as mainly prohibiting the sale of intoxicating liquors as a bever- age, and destructive of its principal value, and with that im- pression I must adjudge it to be null and void to that extent. The inviolability of the rights of private property is subject to the prerogative resulting from the eminent domain always existing in the sovereign power to take it for public purposes, on paying an adequate compensation to the owner. But the compensation must consist of a direct and specific remunera- tion, and not merely of the general good conferred upon the community by the passage of a beneficent law. The prohibi- tory law does not, nor from the nature of the case could it, make any direct compensation to the owners for the property which it is proposed to sacrifice. So, too, there is necessarily reserved the right of taxation ; but the exercise of such right, although it requires the contribution of a portion of what be- longs to the citizen, in effect rather increases than diminishes the value of the entire property, by the security which it en- ables the public to give to all that is retained. The interest in the question as to the validity of the prohib- itory law is not confined to those only who may own the prop- erty Avhich it is proposed in effect to render unavailable to the proprietor ; it extends to the entire community. If the shield of constitutional protection can be withdrawn from one species of property, any other may be successfully assailed under some specious pretenses, or indeed without any at all. It is by nc DUTCHESS JULY, 1855. 223 The People v. Toynbee. means a sufficient answer to this to say that the power over property, which is now claimed in behalf of the legislature, would not be liable to abuse, inasmuch as the members are elect- ed by the people, with whom they retain a community of interests, as they enjoy but a short term of office, and must soon return to the ranks of private life. The patriots of the revolution who formed our national constitution, and the enlightened mem- bers of the convention which adopted our state constitution, thought otherwise, and accordingly limited the power of the legislature expressly in several important particulars, and by implication in many others. They no doubt thought, and right- ly thought, that the possession of despotic power by any de- partment of our government would be inconsistent with our free institutions, and that the safety of our lives, our liberty and our property, required that they should not be subjected to the arbitrary disposal or control of any man or set of men. It may be that the ordinary use of intoxicating drinks neces- sarily leads to their frequent abuse, and that the interests of society require that property in them should be in effect annihi- lated. If so, they might, and possibly should, be withdrawn from the pale of constitutional protection. But that has not yet been done, nor can it be done by any other power than that by which our organic laws were ordained. Whatever those insti- tutions require, the court must award, as it is the duty of the judges, imposed upon them by their official position, and under the solemnity of an oath, to support the constitution of our common country, and of our own state, from whatever quarter or under whatever pretense they may be assailed. I have not the slightest wish to extend any protection or en- couragement to the habit of inebriation, or to throw any im- pediment in the way of the good and the virtuous who are so solicitous to arrest its progress. It is an abomination, and should be suppressed (so far as human means can do it) by pre- cept, by example, and by legitimate legislation. But we should go no further, lest we " do evil that good might come." The injunction against that is wise ; as the evil is certain, while the production of the good might be, at least, problematical. 224 CASES IN THE SUPREME COURT. : The People v. Berberrich. The judgment in the court below being erroneous, it must oe reversed. ROCKWELL, J., dissented from so much of the above opinions as relates to the unconstitutionality of the act. (See next case.) Judgments reversed. [DUTCHESS GENERAL TERM, July 21, 1855. Brown, S. B. Strong and Rockwell, Justices.] THE PEOPLE, on the complaint of JOHN E. VASSAR, vs. PHILIP BERBERRICH. Where an individual is brought before a magistrate, upon a warrant issued for a violation of the act of April 9, 1855, " for the prevention of intemperance, pauperism and crime," the magistrate should take his examination ; and if, upon such examination, it appears that no offense has been committed, or that there is no probable cause for charging the accused therewith, he should bo discharged. If there is probable cause to believe the defendant guilt}', bail should be taken, if offered by the defendant, for his appearance at the next court having cognizance of the offense. The legislature did not intend, by that act, to extend the jurisdiction of courts of special sessions so far as to compel persons accused of offenses against the act, to submit to a trial before that tribunal in cases where the accused si ould offer bail for their appearance at the next cuurt of sessions or oyer and terminer at all events. A court of special sessions is one of limited jurisdiction, depiving all its power from the statute. It can only acquire jurisdiction over the person of the ac- cused upon his rcquosu to be tried before it, or his omission, for 24 hours after being required to do so, to give bail for his appearance according tc law. /^ERTIORARI to a court of special sessions held by the Vj county judge of Dutchess county, to remove a conviction of the defendant, for a violation of the prohibitory liquor law, ic selling intoxicating liquor. DUTCHESS JULY, 1855. 225 The People v. Berberrich. T. C. Campbell and John Thompson, for the people. I. In deciding the case and determining what ought to be done, the rules as to habeas corpus apply fully to certiorari. (2 R. JS. 564.) II. No person can sue out this writ, except he is committed, detained, confined, or in some way actually restrained of his lib- erty. If his object is to review the proceedings of courts, or the sufficiency of papers, his remedy is by appeal or common law certiorari. (2 R. S. 564, 35. Mercein v. The People, 25 Wend. 89. 3 Hill, 399.) III. Nothing can be reviewed on this writ except the suffi- ciency of the warrant, and whether the county judge had color- able authority to issue it ; and the fact whether the law is consti- tutional cannot properly be decided here by this court. (Li the matter of Prime, 1 Barb. S. C. R. 340, $-c. People v. Cas- scls, 5 Hill, 167, 168. Note to 3 Hill, 659 Bennac v. The People, 4 Barb. 33.) IV. Is the law constitutional under which the county judg^,- proceeded and the warrant was issued ? 1. The power to maJie- laws, in this state, is exclusively in the legislature. (See. aet-. o of the Constitution, sec. 1, 1846. Also, see art. 1 ofthes&me Const, sec. 17.) The people can make no law, repeal no law, enact no law ; they have surrendered all their power into the hands and keeping of the legislature. The people have surren- dered their rights as individuals to government, for the- purpose^ of gaining greater rights from government. (2' Kent's Com, 448.) 2. What is the limit of this legislative power? We say there is no limit, except the constitution. This nmst of neces- sity be so in all constitutional governments. The legislature are made the judges of the expediency of a law r and are quite as good judges as the people at large. The jtidiciary are never to judge of the expediency of a law. (2 Kent, 448. Butler v. Palmer, 1 Hill, 329. Charles River Bridge v> Warren 'Bridge, 11 Pick. 420. Cochran v. Van Surtay, 20 Wend: 881.) 3. If then this act does not violate some of the express- provisions of the constitution of the state of New York, it is a legal and binding act, and the judiciary cannot declare it uncon- VOL. XX. 29 * 226 CASES IN THE SUPREME COUKT. The People v. Berberrich. stitutional because it is deemed inexpedient or distasteful to them. V. The act is said to violate directly the constitution of the state of New York. 1. It deprives the accused of the common law right to a trial by a jury of twelve men. The provision of the constitution of 1846 on this subject is as follows : '; The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever." (Art, 1, sec. 2.) The provision of the constitution of 1822 is as folloAvs, (being the same precisely.) (See Const. o/1822, sec. 11, art. 7.) The provision in the constitution of 1777 is the same in substance. (See Const, of 1777, sec. 41.) These constitutional provisions following one after the other the same in each constitution in substance, only prfsei've this right in those cases in, which it lias been hereto- fore used, not in every case, not in any unless it has been here- tofore used. 2. Trial by jury has not been used in this state before the constitution in any cases where the offense was under the grade of grand larceny, till the creation of the court of spe- cial sessions in 1824. And these provisions of the constitution are deemed to have been made recognizing that fact. The right therefore of a trial by jury in no case under grand larceny can be claimed as a constitutional right. It has been given as a matter of justice, and a favor on account of our tenderness to- wards liberty. (People v. Goodwin, 5 Wend. 251. Murphy v. The People, 2 Cowen, 817, and the statute and decisions there cited.} 3. The act giving a trial by jury in cases of all misdemeanors, and creating a court of special sessions, was passed in 1834, and the most that could be claimed would be that the right of a trial by jury was secured in such cases by implica- tion. If this is so, the trial by jury secured at the time of the passage of the last constitution in such cases is given, to wit, a jury of six men. (In the matter of Newell Smith, 10 Wend. 449. Crvgcr v. The Hudson River R. R., 2 Kern. 199.) 4. It is said to violate expressly the provision of the constitution that : ' no person shall beheld to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury," W*e say the crime in question is not an infamous crime DUTCIIESS-JULY, 1855. 227 The People v. Berberrich. No common law misdemeanor was at common law an infamous crime. This question is forever put to rest by the provisions of our constitution, and the revised statutes. (2 R. S. p. 707.) " Whenever infamous crime is used in any statute, it shall be construed as including every offense punishable with death or by imprisonment in a state prison, and no other. This same 3tatute (Id. 702.) was in force before the adoption of the consti- tutions of 1822 and 1846, and according to every rule of inter- pretation of those instruments they must be deemed to have been passed with reference to this statute. This interpretation is strengthened by the fact that the words of the constitution are " capital or otherwise infamous crime." 5. It is said the act itself violates the constitution, and convicts a man of an in- famous crime without trying him by a jury, and without giving the benefit of a presentment of a grand jury, by excluding per- sons from sitting as jurors. This we deny. The provision does not render the person infamous or subject him to a single pen- alty attached to the conviction of an infamous crime. What are those penalties ? They are, (1.) The person cannot be allowed to testify in a court of justice. (2 R. S. 701, 27.) (2.) He is de- prived of the right of suffrage. (1 R. S. 4th ed. 337.) All other rights, persons convicted of infamous crimes enjoy, with other citizens. This provision, therefore, of excluding certain persons from acting as jurors, does not charge a person with any crime, or hold him to answer for one, in any sense whatever. It merely excludes a man because by interest he is incompetent, and nothing more; a right which the legislature have always had and executed. (In the matter of Smith, 10 Wend. 449. 20 John. 460.) 6. The law is said to be unconstitutional, be- cause a state cannot pass a law prohibiting the sale of personal property. We affirm it is perfectly proper to do so, and that the right exists of necessity in all governments. I it is thus unconstitutional, it must be a violation of the spirit of the constitution and not the letter. The constitution does not prohibit the legislature from making illegal the sale of property, in words. The relator claims it is not lawful to pass such an act. il.) Because it is an infringement of private rights. It does not 228 CASES IN THE SUPREME COURT. The People v. Derbeirich. infringe upon such rights. A man can drink as much as he pleases, and when and where he pleases, under this law. It only prevents one man selling or giving it to another, which iy the witnesses. Where a testator said to one of the subscribing witnesses, " Mr. McC. [the scriv- ener) will want you to be a witness to the will ;" and the scrivener read the attestation clause to the testator, and asked him whether he wished tlw person* DUTCHESS JULY, 1855. 239 McDonough v. Loughlin. present to be witnesses to the will, and he said he did: Held, that this was a sufficient request of the witnesses to become such. 1 1 is not necessary that a testator should himself formally repeat the words. It is enough if he directly and audibly adopts the language of another, used in his presence and hearing. The admission and examination of an executor and trustee as a witness to prove the execution of a will, does not annul his appointment of executor, or the legacies to him as a trustee, where nothing is given to him, nor is any appoint- ment conferred upon him, for his own personal use, but all is fiduciary and for the benefit of others. The fact that the donee of a mere naked power may be entitled to a compensa- tion for his services, does not necessarily render him beneficially interested in the execution of the power. Nor will the circumstance that an executor is entitled to commissions for his services, render him an incomptent witness to establish the will. Those commissions are allowed by statute, by way of compensation for the exec- utors' services, and are not a gift under the will. THIS was an appeal from a decree of the surrogate of the county of Kings, admitting the will of James McDonough, late of the city of Brooklyn, to probate, and determining that Eugene Cassidy was not disqualified from acting and taking letters testamentary as one of the executors of the said will, and that John Loughlin and Eugene Cassidy were entitled to receive letters testamentary as executors of the said James McDonough. On the 2d day of Dec. 1853, ^Eugene Cassidy appeared before the surrogate and presented his application in waiting, setting forth that he was an executor named in the last will and testament of the said James McDonough deceased ; that the deceased was, at the time of his death, an inhabitant of the county of Kings, and died there on the 6th day of Oct. 1853 ; that the said last will and testament related exclusively to per- sonal estate ; stating also the names and places of residence of the next of kin of the deceased, and asking that the said last will and testament might be proved, and letters testamentary granted thereon. A citation was accordingly issued, returnable on the '20th day of January. 1854. On that day Eugene Cassidy, the executor, appeared in person and by A. McCue, Esq. his coun- sel. James McDonough, a nephew of the deceased, also ap- peared in person and by counsel. The said Eugene Cassidy, 240 CASES IN THE SUPREME COURT. McDonough v. Loughlin. who was one of the subscribing witnesses to the will, was exam ined as a witness, and testified to the due execution of the will by the testator, in his presence. On his cross-examination he testified that the Avill was drawn by Mr. McCue, who read the will to the testator and asked him if there was any thing else he wished to insert. The testator said no; that Mr. McCue then said " you sign this as vour last will and testament?'' and */ O */ the testator said " I do," and signed it, on the table, by the bed ; that the witnesses signed immediately after he did ; McCue telling the deponent, at the time, he was to sign the will as a witness ; that previous to the signature by the witness, the testator said to him "Mr. McCue will want you to be a witness to the will ; he will want three witnesses to it." A. McCue, the other subscribing wit'ness, testified that some additions and alterations were made in the will, after he arrived ; that he read the will to the testator, who then signed it ; that the tes- tator spoke of its requiring three witnesses ; the witness told him that two witnesses were all that were required ; and Mr. Cassidy and himself would be sufficient ; that the witness read the attestation clause to the testator, and asked him whether he wished him (McCue} and Cassidy to be wit nesses to the will, and he said he did. The testator, by the second clause of the will, gave to Eugene Cassidy $1000, "to be applied by him to certain uses and purposes heretofore made known to him, and the carrying out of which I intrust to him.' He then directed his executors to invest various sums, and pay the interest thereof to individuals named, and for charitable objects particularly spe- cified. By the 5th clause he gave to Cassidy the right of pre- senting three young men to an ecclesiastical education provided for in the will : with power to nominate and appoint, by will, a successor to said power of presentation. And lastly he gave, bequeathed and devised to John Loughlin, Roman Catholic bishop elect of the diocese of Brooklyn, and to the Rev. Eugene Cassidy, all of his estate, wheresoever situate and not particularly devised and bequeathed by said will, for the uses and purposes previously set forth. And he appointed them and the successor of them, executors and trustees of his will ; there- DUTCIIESS JULY, 1855. 241 McDonough v. Loughlin. by giving unto them, and the successors of them, such powers as might be necessary to carry into effect the provisions of said will. At the foot of the will was the attestation clause, on the left of the testator's signature ; below which was a memoran- dum of the erasures and interlineations in the will. And the names of the attesting witnesses were subscribed at the end of this memorandum. The surrogate decreed that the will was duly executed by the testator, who was competent to bequeath personal estate ; that the will was a valid will of personal estate, and that the proofs thereof were sufficient. And he ordered that the will, with the proofs and examinations, be recorded ; and that letters testa, mentary should issue to the executors named therein. From this decree James McD enough, one of the heirs and next of kin of the decedent, appealed. /S. B. Brophy, for the appellant. I. The will was not exe- cuted, or attested, according to the requirements of the revised statutes. (1.) There is no signature of any witness, at the end of the will. The statute requires that there shall be at least two attesting witnesses, each of whom shall sign his name at the end of the will, at the request of the testator. (2 R. *V. 124, 32 ; 2 Curteis, 342, 343 ; 8 Paige, 488.) (2.) Signing "the memorandum of alterations, is not signing at the end of the will, within the meaning of the statute. (Ma&uire v. Ken; 2 Bradf. 254, and cases there cited.} (3.) There is no evidence to show that the decedent requested Eugene Cassidy or A. Me- Cue to witness the will. II. Assuming that the will was duly executed, the surrogate erred in granting letters to Eugene Cassidy, on the ground that he was a necessary subscribing witness to the will. (2 R. 8. 125, 42, 3rf erf.) (1.) The whole interest vests in the execu- tor, on the death of the testator. (9 Wend. 302 ; 2 Hill, 181.) An executor has an interest in the estate to the extent of his commissions. (2 R. S. 137, 62. Burritt v. Silliman, 16 Barb.. 198. Taylor v. Taylor, 1 Rich. 531. Tucker v. Tucker, 5 Iredell, 161. 4 Hawks, N. C. 141. Domirdck v. Michael. VOL. XX. 31 242 CASES IN THE SUPREME COURT. McDonoujrh v. LoughlSn. 4 Sandf. S. C. R. 401. Judson v. Gibbons, 5 Wend. 224.) (2.) The fifth clause of the will gives to Eugene Casskly the right of presenting three young men to an ecclesiastical educa- tion, wi4h power to appoint his successor to this right. This is a beneficial appointment. (2 Black. Com. 22, A". Y. ed. 1849.) (3.) The statute provides, that a subscribing witness to a will cannot take any interest, because the effect of his testimony would be to secure for himself all the benefits conferred on him by the will. (7 Barb. 554. 8 Adolph. fy Ellis, 215. 16 id. 747, 745.) III. The will was materially altered in several parts, without the knowledge or consent of the decedent ; such alterations are presumptively fraudulent. (1.) There is no evidence to show when, where, or at whose instance the alterations were made in the will. Alterations apparent on the face of a will, are presumed to have been made after the will was executed, unless evidence to the contrary is adduced. (Shall- cross v. Palmer, 16 Adol. $ Ellis, N. S. 747.) Where fraud, is apparent the onus probandi is thrown with great strict- ness on those who seek to establish the will. (Park \. Olloff] 2 Phillim. Eccl. Rep. 323. 1 id. 187, 493.) (2.) Omitting to produce evidence in elucidation, which is in the power of the party, or within his knowledge, shall be holden to turn every doubt against him. (1 Stark. Ev. 34. 3 id. 487, 8.) IV. The cross-examination shows that the attesting witnesses contradict themselves, and each other ; their testimony is there- fore shaken, and they alone proved the will. In a case preg- nant with the appearance of fraud, and resting on the attesting witnesses alone, these witnesses must be beyond suspicion, and if at all shaken in credit, no part of their evidence can be relied on. (1 Hagg. Eccl. Rep. 288.) Eugene Cassidy, in whose favor the alterations are, is a legatee, a patron to an ecclesiastical appointment, and executor and a witness to the will. He was the conduit of the decedent's directions to tho other witness who wrote the will, and in whose handwritirg the alterations were made. Knowledge of .these erasures and alter- ations, is therefore conclusive against both of the attesting wit- DUTCHESS JULY, 1855. 243 McDonough v. Loughlin. nesses ; yet they offer no explanation. If narratives like the present may be written at the end of a will, and signed as an attestation clause, a wide door is thrown open to the most enor- mous frauds, upon testators and heirs at law. The court should assert a safe general principle, irrespective of any opinion it may form as to the good or bad faith of the witnesses in the particular instance, and so give effect to the spirit of tb.p statute. A. McCue and H. B. Daryea, for the respondent. I. The will of the testator is executed in the manner prescribed by the revised statutes. (2 R. &. 3rf ed. p. 124, 32. Remsen v. Brinckerhoff, 26 Wend. 325. See 1 Denio, 33.) II. The respondent, Cassidy, Avas a competent witness to prove the execution of the will. (2 R. *$*. 3d ed. 125. 42.) III. If the legacy and devise, to the respondent Cassidy, be void, then he takes no beneficial interest or appointment under the will. The office of executor is not such a beneficial interest or appointment as is contemplated by sec. 42, page 125, vol. 2, R. S. 3d ed. The law vests the whole personal estate in the ex- ecutor. And an executor and trustee may be a witness to the will under which he takes his appointment. (Jarmin on Wills, 2d Am. ed. vol. 1. p. 106, and cases therein cited. Phipps v. Pitcher, 6 Taunt. 220. Tucker v. Tucker, 5 Iredell. 161. Valentine v. Jackson, 9 Wend. 302. Babcock v. Booth, 2 Hill, 181. 1 W. Black. 325. 1 Douglass, 139. 12 East, 250.) The decree of the surrogate should be affirmed. By the Court, S. B. STRONG, J. The statute would have made the respondent Cassidy a competent witness to prove the execution of the will, even if he would have otherwise been ex- cluded by the rules of the common law. (2 R. S. 65, 50.) The only objection, of any weight, to his admissibility was that he was the applicant to establish the will, and therefore respon- sible for the costs, in the event of a failure. That objection not having been raised before the surrogate, it must be deemed to have been waived, and can be of no avail on an 244 CASES IN THE SUPREME COURT. McDonough v. Louahlin. appeal. (Leach v. Kelsey^ 7 Barb. 466. 1 Cow en fy Hiir Notes, 256, 266.) I can see no valid objection to the manner in which the wit- nesses to the execution of the will subscribed their names. The legislature undoubtedly intended that the certificate of attestation should intervene between the body of the will and the names signed by the witnesses. The memorandum of the erasures and interlineations is merely a part of the certificate. Taken together, it states that the paper as altered, was exe- cuted by the testator and attested by the witnesses. That, so far as I know, is, and was before the adoption of the revised statutes, the usual practice where there are alterations to the will as at first drawn, and it seems to me is free from objec- tion, and very proper. The alterations in the will in question are quite numerous, and the memorandum is consequently a long one, but that, in the absence of any charge of fraud, can make no difference. The appellant is mistaken in point of fact in his allegation that there is no evidence to show that the decedent requested Oassidy and McCue to witness the will. Cassidy testified that the testator said to him, " Mr. McCue will want you to be a witness to the will." And McCue swore that ' he read the attestation clause to the testator, and asked him whether he wished us (Cassidy and McCue being the only persons then in attendance) to be witnesses to the will, and he said that he did." It surely is not necessary that a testator should himself formally repeat the words. It is enough if he directly and au- dibly adopts the language of another, used in his presence and hearing. To hold otherwise would be to sacrifice substance to mere unmeaning formality. I am strongly inclined to think that the admission and ex- amination of Cassidy, as a witness to prove the will, did riot an- nul his appointment of executor, or the legacies to him as a trustee. The statute avoids any beneficial devise, legacy, inter- est or appointment, to witnesses, (2 R. S. 65, 50.) but the use of the word " beneficial," if it has any signification, indicates that there may be devises, legacies, interests and appointments DUTCHESS-JULY, 1855. 245 McDonough v. Loughlin. to an executor or trustee, which may be sustained, notwithstand- ing his examination in support of the will. The only question in this case is whether the legacies or appointment are bene- ficial to Cassidy. Clearly nothing is given to him, nor is any appointment conferred upon him, for his own personal use. All is fiduciary, and for the benefit of others. He will be, it is true, entitled to the commissions allowed by the statute. But that is by way of compensation for his services, and is not a gift under the will. Payment for services (and in most cases of this kind the compensation) is never considered as a gratuity. It is undoubtedly beneficial to have an employment, for a rea- sonable compensation, but the benefit is not of a character to disqualify a witness, and it is to such only that the statute re- fers. The revised statutes declare that devises in trust are not necessarily beneficial. They provide (1 R. S. 7^2, 76) that powers are beneficial or in trust, and (in 79) that a gen- eral or special power is beneficial when no person other than the grantee' has, by the terms of its creation, any interest in its execution. These provisions are certainly antagonistical to the idea that because the donee of a mere naked power may be entitled to a compensation for his services he is therefore bene- ficially interested. It has been held in South Carolina, (Taylor v. Taylor, 1 Richardson, 531, and Tucker v. Tucker, 5 IredelVs Law Rep. 161.) that the office of executor is an appointment yield- ing emolument, and that therefore one named as an executor in a will is an incompetent witness to establish it. And the same principle was adopted in the case of a trustee entitled to com- pensation, in North Carolina. (Allison's Ex'rs v. Allison, 4 Hawks' Rep. 141.) The same rule has been adopted by this court at a general term* in the third district, (Burritt v. Silli- man, 16 Barb. 198,) although, as stated by Judge Harris, " with hesitation." But the decisions in the English courts are the other way. (1 Modern Rep. 107, before Lord Hale. Lowe v. Jolliffe, 1 W. Black. 365. Holt v. Tyrrell, 1 Bar- ' nard. Rep. K. B. 12. Bettison v. Bromley, 12 East, 250.) In the case last cited, Lord Ellenborough said that the point 246 CASES IN THE SUPREME COURT. The People v. Crilley. had been decided, so long ago as Lord Hale's time, that an ex* ecutor having no interest in the surplus was a good witness to prove the will, in a cause concerning the estate ; and this had been followed by other decisions to the same effect. I am in- clined to follow the English decisions, as it seems to me they are supported by the better reason. It is true that in England the executor has not, generally, any compensation for his ser- vices ; but it is taking a very narrow view of the subject to suppose that the statute allowing a meager compensation for what are too often unthankful services, can confer such a benefit as to disqualify an otherwise competent witness. The tendency of modern legislation is to relax the rules of exclusion, and I yield to the spirit of the age where those rules were merely technical, or had no substantial foundation. The surrogate's decree must be affirmed. [DUTCHESS GKNERAL TERM, July 2, 1855. Brown, S. B. Strong and Rock- well, Justices.] THE PEOPLE vs. CRILLEY. The sale of ale in less quantities than five gallons, without having a license therefor, granted according to the provisions of title 9, chapter 20, of the first part of the revised statutes, is not prohibited by the 15th section of that title, nor declared a misdemeanor by the 25th section. /^ERTIORARI to the oyer and terminer of the county of \J Dutchess, to remove a conviction of the defendant upon an indictment for a violation of the excise Jaw. T. C. Campbell, district attorney, for the people. /:/. A. Nelson, for the defendant. By the Court, S. B. STRONG, J. The defendant was tried on an indictment for a violation of the 15th section of the title UUTCHESS JULY, 1855. 247 The People v. Crilley. of the revised statutes, relative to excise and the regulation of taverns and groceries. (1 R. 8. 680.) That section is in the following words : " Whoever shall sell any strong or spirituous liquors, or any wines, in any quantity less than five gallons at a time, without having a license therefor, granted as herein direct- ed, shall forfeit twenty-five dollars." The 25th section declares that all offenses against the provisions of that title shall be deemed misdemeanors. The only proof to sustain the charge was that the defendant had sold one gill of ale, to be drank in his store. The court below charged the jury that " the sale of ale in less quantities than five gallons, without having a license therefor, granted according to the provisions of title 9, part 1, chapter 20 of the revised statutes, is a misdemeanor." To that the defendant's counsel excepted ; and whether the court was right or erred in thus instructing the jury, is the only question presented for our determination. It was decided by this court, in Nevin v. Ladue, (3 Denio, 43,) that ale was included in the terms strong or spirituous liquors as used in the statute, and a conviction founded simply on the defendant's confession that he had sold ale, strong beer or fermented beer, without a license therefor, was affirmed. That case was subsequently taken to the court for the correction of errors, (3 Denio, 437,) where the judgment of this court was reversed, on the ground that the defendant's confession was in the alternative, and did not prove that he had sold any thing stronger than common table beer. For that reason the major- ity of the members of the court of dernier resort who delivered written opinions, declared that the question whether ale or strong beer was within the prohibition of the excise law, did not arise in the case. Although, therefore, the opinions of the ^ate judges of this court, and of Chancellor Walworth, who concurred with them, are entitled to great respect, yet as they were expressed upon a question not necessarily involved in the case before the court, they have not the force of authority, arid we are at liberty to adopt and follow our own conclusions. Clearly, ale is not comprehended within the term wines, as it is generally understood and applied. That term includes 248 CASES IN THE SUPREME COURT. The People v. Crilley. the fermented juice of the grape, and possibly of other fruit Neither is it a spirituous liquor, as spirits are manufactured by distillation ; whereas, ale is produced by fermentation. If it is included at all in the statutory prohibition, it must be under the denomination of " strong liquors." There is no statutory definition of the word " strong," as applied to liquors. Its meaning is a mere matter of inference. I do not agree with the chancellor that our legislature in passing the act were influenced by the phraseology of King James' version of the scriptures, or the language of the Egyptians, the Greeks or the Romans. I doubt much whether the framers of our stat- utes consult the bible, or the works of any ancient authors, for the meaning of terms, but they are governed in that re- spect, as I think they should be, by the authority which con- trols our language, the present usage by well informed people. The words " strong" and "weak" are relative terms, both hav- ing reference to the medium of the class to which they are ap- plied one being above and the other below it. The word liquors, as commonly used, includes all that are spirituous, vinous or inferior fermented, including malt. The meaning should not, I. think, be extended any further for the purpose of applying relative terms designating the qualities of either class. The strength of liquors and their intoxicating powers depend upon the quantity of alcohol which they contain. Spirituous liquors contain from 53 to 56 per cent, wines from 18 (cham- pagne) to 26 (port) per cent ; currant wine and cherry wine over 10 per cent, metheglen about 7i per cent, cider (the aver- age) about 7 2 per cent, and ale (the average) about 6| per cent. (Brandc's Manual of Chemistry, 1645, 1646.) If the rule of interpretation which I have mentioned should be applied to these liquors, ale being so far below the medium, could not be appropriately denominated strong. I am inclined to think that it is not originally so classed. After all, perhaps the statute is its own best expositor. The words " strong" and "spirituous" are connected sometimes by the disjunctive, and at others by the copulative conjunction, but both are uniformly prefixed to the term liquors, without any DUTCHESS JULY, 1855. , 249 The People v. Crilley. thing to denote separate or distinct individuality. There is some reason for inferring that both qualifications were designed to characterize the same identical subject matter. The prin- cipal objection to this interpretation is that it makes the expres- sions tautological, but instances of that kind are frequent in our statutes. It would seem too that the term strong was designed to apply exclusively to spirituous liquors, from the subsequent specification of crimes. That would have been superfluous and indeed improper if wines had been previously included as strong liquors. The statute would then have prohibited the unlicensed sale, first of a class, and then of a part of it. Then too in a sec- tion of the article of the revised statutes relative to the observance of Sunday, passed at the same time, (1 R. IS. 676,) there is a prohibition against selling on that day any ale, porter, strong or spirituous liquors. Here, again, if ale had been included in the general expression of strong liquors, its specification would have been unnecessary and improper. The law of Massachu- setts Bay, ch. 105, .2, quoted by the defendant's counsel, makes the same distinction between ale and strong drink or spirits, and it also prevails in the English statute, 26 Geo. 2, ch. 31, 7, 11. Tt was contended by the counsel for the people, hov ever, that the provision in the 29th section of the statute relative to excise, that no person shall be subject to be prosecuted undei that act for selling metheglin, currant wine, cherry wine or cidei proved that the legislature intended to include other than spirituous liquors and wines in the regulations prescribed by the statute. Currant wine and cherry wine were undoubtedly included in the general term wines, and there was of course a sufficient reason for specially exempting them, if they were to, be exempted at all. But the reason is certainly not so clear for excepting metheg- lin and cider, unless they had been previously included. The counsel for the defendant supposes that they were particularly excepted because spirituous liquors are applied to a considerable extent for their preservation. Possibly that may have been the reason, but provisos and exceptions are frequently inserted in our statutes to prevent the extension of some general term be- yond the intent of the legislature, pro majori cautela ; and it is VOL. XX. 32 250 CASES IX THE SUPREME COURT. The People v. Crilley. vtry unsafe to apply them in such a manner as to enlarge the meaning of the general provision : and that should never be done when such provision creates a penalty or a crime. The design of a statute is often illustrative of the meaning of <-j o its phraseology. Clearly, in the instance under consideration it was to promote the cause of temperance, by regulating the sale of a portion of the intoxicating liquors in general use. The particular aim would naturally be to prevent the indiscriminate sale of those which were supposed to be the most detrimental. Spirituous liquors were the most dangerous, then wines, and lastly inferior fermented, including malt, liquors. The statu- tory regulation included all spirituous liquors, and all wines ex- cept currant wine and cherry wine, which were deemed to be the weakest and the least prejudicial. The act allowed the unrestricted sale of those two liquors, and also of cider and me- theglin. All of those, as we have seen, are stronger than ale, and it seems to me that our legislature could never-i*ave designed to sanction the unrestricted sale of those different kinds of liquor, and at the same time to prohibit the free sale of that which was weaker and less prejudicial. That would have been absurd ; and although our legislative bodies have sometimes made strange enactments, yet in matters of implication it is better to infer that they intended to act consistently. In my opinion the conviction in the court below was wrong, and it must be quashed. Conviction quashed. [DUTCHESS GENERAL TERM, July 2, 1855. Brown, S. B. Strong and Rockwell, Justices.] CAYUGA JUNE, 1855. 251 BOGERT vs. HAIGHT. A wharfinger and warehouseman, by holding himself out to the public as such, extends a license to enter upon his premises, to all persons having occasion tc do so, in connection with that business. His employment, however, is a merely private one. He is under no legal obliga- tion to allow the use of his wharf or warehouse to every person applying, even if he has suitable accommodations, and a reasonable reward is offered him ; but he may limit the general license, or terminate it, in the case of any partic- ular persons, by giving them notice not to come upon the premises. And after he has given such a notice to an individual, and thereby revoked tho license as to him, an entry of the latter upon the wharf is a trespass, for which an action will lie. The possession of the premises, by the plaintiff, in such a case, is sufficient evi- dence of his right to bring the action. A PPEAL by the defendant from a judgment of the Yates JL'JL county court. The action was commenced before a justice of the peace for a trespass, in entering upon the plaintiff's dock or wharf. The plaintiff was the owner of a dock and storehouse at Dresden, on the Seneca lake, used for a steamboat landing, and other purposes. The defendant was the driver of a stage, employed in carrying passengers and freight to and from the landing. About the 1st of November, 1853, the plaintiff for- bade the defendant coining upon the dock. Afterwards, and on the 6th or 7th of December, the defendant came on again and refused to leave. For this entry the action was brought. The plaintiff recovered a judgment for six cents damages, and the county court affirmed the judgment. Jas. Taylor, for the appellant. E. Van Buren, for the respondent. By the Court, T. R. STRONG, J. The plaintiff was a wharf- inger and warehouseman, and by holding himself out to the public as such, extended a license to enter upon his premises, to all persons having occasion to do so in connection with that bu- siness. (Heaney v. Heaney, 2 Denio, 625. Bearddey v 252 CASES IN THE SUPREME COURT. Bogert v. Haight. Frtnch, 7 Conn. R. 125.) His employment, however, was a merely private one ; he was under no legal obligation to allow the use of his wharf or warehouse to every person applying, even if he had suitable accommodations, and a reasonable re- ward was offered him ; but he might limit the general license. or terminate it, in the case of any particular persons, by giving them notice not to come upon the premises. An innkeeper is bound to admit all persons who apply peaceably to be admitted as guests, when he has accommodations ; and a common carrier is bound to receive and carry all goods offered for transportation, or all passengers, which he can conveniently carry, upon the usual price being paid or tendered : but this obligation rests upon considerations of public policy applicable to those cases. Upon the same grounds of public policy innkeepers and common carriers are subject to extraordinary responsibility for the safety of property placed in their care. The cases of innkeepers and common carriers, are exceptions to the general rule of law, as to the duties and responsibilities of bailees and persons engaged tn business for hire, which allows persons to decide for them selves with whom they will do business, and requires of them only ordinary care and diligence. This general rule applies to wharfingers and warehousemen. The cases are numerous, that the principles of public policy referred to do not embrace them, and that they are bound to exercise only ordinary care in regard ^o the safety of goods intrusted to them. (Stor-y on Bailments, 444 to 458, and cases cited. Schmidt v. Blood, 9 Wend. 268. Foote v. Storrs, 2 Barb. S. C. R. 326.) And no good reason is perceived, why they should be bound to receive on their premises any persons against their will, after reasonable notice. If the foregoing views are correct, the plaintiff having re- voked the license as to the defendant, the entry of the defendant for which the action was brought was a trespass, and the defend- ant was liable therefor. Assuming that the trespass was committed out of the county of Yates, the justice had jurisdiction. (Graver /. McKcon, 2 Pinio, 639. Code, 53.) CAYUGA JUNE, 1S55. Mitchell v. Worden. The possession of the premises by the plaintiff was sufficient ' evidence of his right to bring the action. In my opinion the judgment of the justice was right, and that of the county court, affirming it, should be affirmed. Judgment affirmed. [CAYUGA GENERAL TERM, June 4, 1855. Selden, Johnson and T. R. Strong, Justices.] MITCHELL and others vs. WORDEN. The law does not, in ordinary cases, impose upon a purchaser of property the duty of disclosing to the seller, at or before the sale, the state of his pecuniary circumstances, however desperate they may be, and be known by him to be. This general principle is applicable, notwithstanding there has been a long course of dealing between the parties, in the course of which credit has been given to the purchaser, and he has punctually performed his engagements ; and his insolvency has occurred during those dealings. >o relation of trust or confidence is thereby created, which should entitle the seller to expect of the purchaser, or require of the purchaser, as a legal duty, to communicate to the seller information of his inability to pay all his debts while he continues his business and the management of his affairs. Therefore, although a purchaser, at the time of making an additional purchafe from persons with whom he has been in the habit of dealing, is insolvent, and he well knows his insolvency, and intentionally conceals it from the vendors, by simply withholding his knowledge on the subject, without otherwise say- ing or doing any thing to mislead, and he still retains the possession of prop- erty, and'is pursuing his business as before, he is not thereby guilty of a fraud, entitling the vendor to avoid the saje. But if the purchaser, at the time of making a new purchase, is not only insol- vent, and knows himself to be so, but has performed an open and notorious act of insolvency, by breaking up his business and assigning his property for the benefil of his creditors, it is his duty, arising out of his previous dealing with the vendors, to communicate that fact to them, before the sale; and the violation of that duty amounts to a fraud. A person receiving the property thus obtained, from the purchaser, without pay- ing any thing on account of it, and with notice of facts which render hiir legally chargeable with knowledge of the fraud, will not be considered a bona fide purchaser. 54 CASES IN THE SUPREME COURT. Mitchell v. Worclen. MOTION by the plaintiffs for a new trial, upon a case. The complaint alleged that the plaintiffs were partners, doing business as merchants, at Philadelphia ; that on the 17th of November, 1853, Edward W. McCabe, a. liquor merchant at Auburn, sent an order to the plaintiffs, by mail, directing them to send to him a cask of old pale brandy, of 78 gallons, and a cask of gin ; and that on the 23d of November he also ordered six baskets of champagne wine ; that on the 2d of December, 1853, the plaintiffs shipped and sent to the said McCabe the brandy and wine so ordered, which were of the value of about $400 ; that the said brandy and wine were shipped and sent by the usual and ordinary mode of conveyance, and reached the depot and store house of the New York Central Rail Road at Auburn, on or about the middle of December, and the same remained and continued until about the 26th day of that month in the possession and custody of the said rail road company, at said depot, as a middle man between said McCabe and the plaintiffs. The complaint further alleged that at the date of the said McCabe's first order, and prior thereto, he the said McCabe was in straitened and failing circumstances, and insol- vent, to the knowledge of said McCabe and the defendant in this action ; and at the date of the said second order, he. the said McCabe had, to the knowledge of the defendant, made and transferred to certain assignees his property, for the benefit of his creditors, and was insolvent, to the knowledge of said Mc- Cabe and the defendant ; and that McCabe concealed said in- solvency from the plaintiffs, with intent to defraud them. That at the date of said first order, and prior thereto, and all the time subsequent thereto, up to an,d until about the 28th day of December, 1853. the plaintiffs were entirely ignorant of the said straitened, and failing, and insolvent circumstances -f the said McCabe, and of said assignment by him. and believed him to be in good circumstances, and to be dealing and doing busi- ness in good faith, and the said brandy and champagne were shipped and sent to said McCabe by the plaintiffs, in conformity to said orders, in entire good faith, and solely because of their en- tire reliance upon the supposed good faith of said McCabe, and CAYUGA JUNE, 1855. 255 Mitchell v. Worden. their belief in the goodness and sufficiency of the pecuniary and business circumstances and solvency of the said McCabe ; and upon an indefinite and uncertain credit therefor. That on or about the 26th day of December, 1853, the defendant, being advised and cognizant of the straitened, failing, and insolvent cir- cumstances of the said McCabe, and of the assignment thereto- fore made by said McCabe, of his property for the benefit ol certain of his creditors, and being advised and cognizant of the absolute refusal which had been theretofore made by said rail road company to deliver up or surrender said brandy and cham- pagne to said McCabe, because of his known insolvency and as- signment, and being advised and cognizant of the absolute refusal which had been theretofore made by the assignee of said McCabe, under said assignment, to take or receive said brandy and champagne, from said rail road company, as a part or portion of said assigned property of McCabe, and being ad- vised and cognizant of the non-payment, and existing indebted- ness of said McCabe for said goods, and the inability of said McCabe to pay them for the same, and of the same being in the possession and custody of said rail road company, as a middle man between the said plaintiffs and said McCabe, or his said assignee, did wrongfully and fraudulently remove said brandy and champagne from the premises of said rail road company, against their will, and with intent to defeat the right of stop- page in transitu of said property by said plaintiffs, and there- upon concealed and secreted the same from the plaintiffs, and upon a demand which was made upon the defendant, of said property, by the plaintiffs, on the 29th day of December, 1853, and immediately on the discovery of the premises aforesaid, and before suit, the defendant wrongfully and fraudulently refused to surrender or yield up the same to the plaintiff, to their dam- age $400, and interest from December 29, 1853. The same cause of action was set out, in similar form, in other counts. The defendant, by his answer, denied each and every allega- tion contained in the complaint. He also denied that the right, title and property in the said brandy and wine were in the plaintiffs, or in any stranger or third person. 2.56 OASES IN THE SUPREME COURT. Mitchnl' ? Worden. On the trial McCabe was examined as a witness for i!ie plaintiffs, and proved the signing and sending of the orders to the plaintiffs, by him. He further testified : " I afterwards saAV the property ordered, in the store house at the depot in Au- burn, or I was told it was there ; the order, which is not dated, (the first one,) was sent on the 7th day of November, 1853; the goods were worth over $375 ; the brandy was worth from $4 to $4.10 per gallon, an.d the casks contained about 80 gallons; the gin I took and used and left the brandy in the car house ; there were six baskets of champagne, worth from $14 to $18 per basket ; I have been in the habit always of leaving my articles in the car house until I wanted them and then I took them awa}^. The order dated November 23, 1853, was the last order I made upon the plaintiffs ; the goods so ordered by me were not paid for: they were obtained on credit ; our understanding was six months. On the 21st day of November, 1853, I made a general assignment of my property for the benefit of creditors ; I did not at the time of, or prior to the time of sending cither of the orders for goods to the plaintiffs, communicate to the plain- tiffs the condition of my pecuniary affairs, or that I had made an assignment. I think one of the plaintiffs told me on the 8th of December, that he saw the fact of my assignment ad- vertised. The brandy came on the 8th day and the wine came on the 9th day of December, 1853." On his cross-examination the witness said: " I had not any idea, when the first order was sent, of making an assignment of my property." It was proved that the goods arrived at the depot about the 9th or 10th of December, 1853, ar.d remained there until the 26th of that month, when they were delivered to a carman by the name of Austin, who had been McCabe's cartman and was in the habit of taking his goods away. Margaret J. McCabe was then called by the plaintiffs and testified : " I was at home in Auburn in December, 1853 ; I know the defendant Worden} I had a conversation with the defendant during the month of December last, at my house, relative to the goods then at the rail road depot ; the conver- sation was about my selling the goods to him ; I wanted to do CAYUGA JUNE, 1855. 257 Mitchell r. Worden. so ; I made an arrangement with the defendant and he was to take the goods ; I sold him the goods ; I seftt Austin the cart- man to the depot to get the goods and take them to the de- fendant's ; Mr. Worden afterwards told me he had received the goods ; Mr. Worde/i did not pay me for the goods ; there were no particular terms of sale ; Mr. McCabe was then indebted to Mr. Worden ; Mr. Worden was to take up some notes at the bank given by Mr. McCabe; the transfer by me of the goods was made on account of Mr. McCabe's indebtedness to Mr. Worden ; think I have a faint recollection of something said about $500. something said about notes; cannot tell exact amount of McCabe's indebtedness to Worden ; I told the de- fendant that John E. Beardsley said defendant was not protect- ed in McCabe's assignment, and he had rather the defendant would have the goods than any one else, and that somebody would have them if the defendant did not have them, and' also something said about keeping the defendant still in regard to the assignment ; the defendant said he did not want to have any thing to do with the goods ; I gave an Irishman the money to pay the freight on the goods ; the defendant knew I was going to pay the freight ; the goods were part champagne ; the defendant told me there were baskets of champagne there ; Mr. McCabe was in Rochester at the time of this conversation ; the defendant has not at any time since, paid me for the goods." Edward W. McCabe was then recalled by the plaintiffs and tes- tified : " There were two notes of mine indorsed by the defend- ant which lay in Auburn bank; both notes were due at the time of the assignment made by me ; I have not paid Worden in any other way than by turning out this property ; notes were both signed by McCabe and indorsed by the defendant ; one note was for $225, the other for $200 ; one was payable in four months, the other in three months." The plaintiff then proved a demand of the goods, of the de- fendant, before the commencement of the suit, and a neglect or refusal to deliver. The defendant's counsel moved the court to nonsuit the plain- tiffs on the grounds, (1.) That on the 2d day of December, VOL. XX. 33 258 CASES IN THE SUPREME COURT. Mitchell v. Worden. 1853, when the plaintiffs shipped the brandy and wine from Philadelphia to McCabe at Auburn, the delivery was absolute and unqualified, and the title in and to the same then passed to McCabe. (2.) That the brandy and wine having arrived at the depot in Auburn, was subject to McCabe's order, and the right to stop the same in transitu was at an end, and the plaintiffs had shown no property in the goods. (3.) That the fact, if true, that McCabe was insolvent when he ordered the goods, was not evidence of fraud. That there was not sufficient evidence to sustain the action. After argument by the respective coun- sel, his honor, the judge, granted the motion and nonsuited the plaintiffs. To which decision the counsel for the plaintiffs excepted. And the plaintiffs except to said decision on the grounds, (1.) That the evidence entitled the plaintiffs to a verdict. (2.) That when the plaintiffs demanded the goods of the defendant, the right of stoppage in transitu was in force. (3.) That there was sufficient evidence of fraud to go to the jury. (4.) McCabe's title to the goods had passed to his assignees before the transfer to the defendant, and prima facia the evidence en- titled the plaintiffs to a verdict against the defendant. (5.) The transfer by Mrs. McCabe of the goods to the defendant was invalid against the plaintiffs. (6.) The bona fides, sufficiency of consideration and notice, were questions that affected the defendant's purchase, and should have been left to the jury. Geo. Rathbun, for the plaintiffs. John Porter, for the defendant. 'Mu the Court. T. R. STRONG, J. The basis of this action / ' / is, that the sales of the property in question by the plaintiffs to McCabe, were obtain'ed by the latter by a fraudulent conceal- , raent from the plaintiffs of important facts in regard to his pecuniary circumstances, which it was his duty to disclose tc them, wherefore the sales Avere void ; that the defendant is not a bona fide purchaser from McCabe ; and that he wrongfully withholds arid has converted the property, CAYUGA JUNE, 1855. 259 Mitchell v. Worden. In i elation to the brandy, a portion of the property, I am sat- kSned the evidence falls entirely short of sustaining the action. The order for the brandy was forwarded to the plaintiffs some days before McCabe made an assignment ; he did not then, as he testified, contemplate making an assignment; it does not appear that he was then insolvent, or that he understood he was so, except as it may be inferred from the mere fact that he soon after made a general assignment for the benefit of his cred- itors, without any proof of the extent of his inability to pay his debts ; there is no evidence of an intention on his part not to pay for the property, or of any fraudulent intent, in making the purchase ; and for aught that appears, his circumstances were as good at that time as they had been at any time while he had been a customer of the plaintiffs. But assuming that McCabe was, at the time of the purchase of the brandy, insolvent ; that his circumstances had become reduced during the period he was buying of the plaintiffs from time to time on credit, and meeting his engagements as to pay- ments ; and that he well knew his insolvency, and intentionally concealed it from the plaintiffs, by simply withholding his knowledge on the subject, without otherwise saying or doing any thing to mislead ; yet retained the possession of property and was pursuing his business as theretofore he was not, in my opinion, thereby guilty of a fraud, entitling the plaintiffs to avoid the sale. The law does not, in ordinary cases, impose upon a purchaser of property the duty to disclose to the seller, at or before the sale, the state of his pecuniary circumstances, however desperate they may be, and be known by him to be. Although the knowledge may be of the highest importance to the seller, for the protection of his interests, the duty of com- municating it is only a moral duty, belonging to a large class of similar duties denominated by Chancellor Kent, " imperfect obligations which are binding in conscience, but which human laws do not and cannot undertake directly to enforce." (2 Kent's Com. 4th ed. 490.) Parties to contracts must themselves ex- ercise reasonable care to guard against loss, and. in general, that degree of care requires the party giving credit to make 260 CASES IN THE SUPREME COURT. Mitchell v. Wordcn. inquiries of the party to whom it is given, at least, in regard to his ability to pay. For a fraudulent misrepresentation by the purchaser, of important facts in respect to his circumstances, accompanied with damage, the law affords a remedy ; the sale may be avoided ; and an action for the fraud, to recover the damages, will lie. The general principle above stated, that the purchaser is under no obligation to disclose to the seller his in- solvency, although known to him, is, I think, equally applicable notwithstanding there has been a long course of dealing be- tween the parties, in the course of which credit has been given to the purchaser and he has punctually performed his engage- ments his insolvency having occurred during those dealings. No relation of trust or confidence is thereby created, which should entitle the seller to expect of the purchaser, or require of the purchaser, as a legal duty, to communicate to the seller information of his inability to pay all his debts, while he con- tinues his business and the management of his affairs. If there is an obligation to disclose in such a case, where does it com- mence 1 at insolvency, or on the way to insolvency, and at what point, and what proof of knowledge is required ? An attempt to extend the protection of the law to purchasers, so far as to impose such an obligation, would work much more injustice than it would remedy. In relation to the sale of the wine, the other portion of the property in question, there is an additional fact to those which exist and are assumed to exist, in respect to the sale of the brandy, which, upon the question of fraud in the sale, is entitled to much consideration. The order for the sale of the wine was not made until two days after the assignment by McCabe, and when of course he was entirely divested of property. Not only was he insolvent, and known by him to be so, but he had then performed an open and notorious act of insolvency. Was it not his duty, arising out of his previous dealings with the plain- tiffs, to communicate that fact to them before the sale. The plaintiffs carried on business at Philadelphia, remote from Mc- Cabe, whose place of business was the city of Auburn ; they had from time to time for the period of five years, made sales CAYUGA--JUNE, 1855. 26 I Mitchell v. Worden. to him, and he had paid them a great deal of money ; their dealings would naturally excite the confidence of the plaintiffs in him, and lead them to expect, at least, that in case of his breaking up his business and assigning his property for the benefit of his creditors, he would on applying to them to make a further purchase, inform them of those facts. I am not pre- pared to say that to this extent the plaintiffs had not a right to repose confidence in him, and to be protected in so doing by law. I think they had ; and that thus far McCabe was under a legal duty, the violation of which was fraud. Here is a plain, well defined limit for the commencement of a legal obligation a course of dealing calculated to produce confidence, followed by closing business and giving up the property for creditors. Thus far, legal protection can in practice be afforded to sellers without injustice to purchasers. (Story's Eq. Jur. 204, 207. Bench v. Sheldon, 14 Barb. 66, and cases died.) It cannot be claimed, upon the evidence, that the defendant was a bona fide purchaser. He had notice of facts which render him legally chargeable with knowledge of the fraud ; and be- sides it does not appear that he paid any thing on account of the property, or that his situation has been in any way changed. I do not perceive that the doctrine of stoppage in transitu has any relation to this case. If the right existed while the property was at the depot in Auburn, it was certainly at an end after the property came into the possession of the defendant. A new trial must be granted, with costs to abide the event. [CAYITGA GENERAL TERM, June 4, 1855. Selden, Johnson and T. R. Justices.] 262 CASES IN THE SUPREME COURT. SMITH vs. COMPTON. An agreement for the submission of matters in difference to arbitration, followed by the arbitrators entering upon their duties the arbitration being still pend- ing and undetermined constitutes no defense or legal obstacle, in abatement or in bar, to an action for the same matters, commenced after the making of the agreement. Such an agreement is a mere authority, revocable by either party, at any time before the case is finally submitted to the arbitrators for decision, subject only to liability for damages. A justice of the peace cannot be permitted to give parol evidence of what took place before him, it seems. But if his docket is afterwards given in evidence the error will be cured. Parol evidence is inadmissible to contradict the docket of a justice. A consent of the parties, in presence of the justice, that a cause shall be submit- ted to the justice conditionally, with a reservation to the plaintiff of liberty to withdraw the suit, is binding on the parties, and if entered by the justice in his docket, it forms a part thereof, and is no more subject to be contradict- ed than any other part of the docket. 1 PPEAL from a judgment entered upon the report of a ref- J-A. eree. The plaintiff's complaint contained three counts. In the first count the plaintiff claimed to recover for goods, wares and merchandise, sold and delivered to the defendant, specifying the time, quality and value. In the second count, he claimed to recover for money paid, laid out and expended, spe- cifying time and amount ; and, in the third count he claimed to recover for two years' work, labor, and services performed, and goods, wares and merchandise sold, and money paid, to the amount of one thousand dollars, and claimed that the defendant was indebted in a balance of five hundred dollars. The defend- ant, in his answer, denied generally and specifically each and every allegation of the plaintiff's complaint. 2d. The answer set up a counter-claim against the plaintiff' for goods, wares &c., and claimed that the plaintiff was indebted to the defend- ant in the sum of five hundred dollars. 3d. The answer set up a submission in writing to arbitration- by the plaintiff and de- fendant; that the arbitrators entered upon the discharge of their duties, and that the same matters for which this action is Drought were still pending and undetermined. 4th. The an CAYUGA JUNE, 1855. Smith v. Compton. also set up in bar of a recovery by the plaintiff, that before the commencement of this action the plaintiff impleaded the defendant in a justice's court before one Lyman S. Kendall ; that the plaintiff proved and gave in evidence the same iden- tical account for which this action is brought, and submitted the same to the justice, who rendered judgment in favor of tho defendant. 5th. The answer also set up in bar the commence- ment of an action by the plaintiff against the defendant, in a justice's court, before one Lyman S. Kendall, to recover the value of a wagon sold by the plaintiff to the defendant, before the commencement of this action which, was the wagon specified in the complaint : that a trial was had, the same was submitted to the justice, and judgment rendered for the defendant. The plaintiff replied to the several matters contained in the answer, denying the same either specifically or generally. On the trial before the referee the defendant produced a written submission to arbitration, executed by the plaintiff and defendant, before the commencement of this action, of all matters in controversy in this action. The plaintiff admitted the execution of the instrument. The defendant offered in evidence the said written submis- sion, and then to follow it up by showing that the said submis- sion and matters were still pending and undetermined before the arbitrators. The plaintiff's counsel objected to the evidence, upon the ground that the defendant in his ansAver having set up matters in bar of the plaintiff's action had thereby waived all matters in abatement of said action, and the referee 'sustained the objection ; the defendant's counsel excepted. The defendant's counsel then offered to prove the further fact, in addition to the above, that the arbitrators in the said submis- sion namod, in pursuance of the submission, entered upon the discharge of their duties, as such arbitrators, and that the said matter AN as still pending and undetermined. The plaintiff's counsel objected, upon the same grounds, and the referee sus- cained the objection ; to Avhich decision the defendant's counsel excepted. Lyman S. Kendall Avas then sworn, on the part of the defendant, and testified, " I was an acting justice of the 264 CASES IN THE SUPREME COURT. Smith v. Compton. peace, in the tc-vvn of Tyrone, in April, 1852. The plaintiff commenced an action against the defendant by summons on the 6th of April, 1852, returnable on the 16th of April. On the return of the summons the parties appeared and issue was joined. The plaintiff complained in writing for a wagon sold and delivered, a wagon taken and sold, and for the use of a wagon, and demanded judgment for $100. The defendant's answer, Avhich was in writing, denied each and every allegation, and set up a counter-claim." The defendant's counsel then asked the Avitness what further took place before him on the trial. The plaintiff's counsel objected to the justice's giving parol testimony of what took place before him, upon the grounds that his docket was the highest evidence, and should be introduced, to prove what took place before the justice. The referee sustained the objection, and the defendant's counsel excepted. The defendant's counsel then read the justice's dock- et in evidence. Among other things, the docket contained the following entry : " May 1st. H, C. Vanduzer appeared for plaintiff, defendant appeared personally, and proceeded to try the cause. Witnesses sworn," &c. " By a stipulation of plaintiff's and defendant's counsel it was agreed that when plaintiff ?e- turned he should have the privilege of withdrawing the sv.'t. May 3d. Plaintiff withdrew the suit and judgment was rend.'.r- ed against plaintiff for $1.97 costs." The defendant's cout sel then offered to show, by the justice, that Smith, the plaintiff, carne home on the same day of the trial and after the same was closed on Saturday, and that the justice informed him of the trial and stipulation, that he had a right to then withdraw the suit and called on him to know what he was going to do about it, and that Smith then declined to withdraw it. The plaintiff's counsel objected to the evidence, upon the ground that the justice could not give parol evidence to contradict his docket, and upon the farther ground that the defendant's counsel, having introduced the docket in evidence, was concluded by it, and had no right to introduce evidence tending to impeach it, and the referee sus- tained the objection, and defendant's counsel excepted. The defendant's counsel then offered to prove by the justice that CAYUGA JUNE, 1855. 265 Smith v. Compton. 3n Monday in the forenoon the justice called on the plaintiff, Smith, again, to know whether he was going to withdraw the suit or what he was going to do, and that Smith then declined tp withdraw it ; that in the afternoon of the same day, Smith same to the office of the justice, and told the justice he would withdraW the suit, and the justice entered judgment as appear- ed in the docket. The plaintiff's counsel objected to the evi- dence, upon the same grounds, and the referee sustained the objection. Defendant's counsel excepted. The defendant then offered to show by the justice that after the witnesses \vere sworn the cause was abolutely and unconditionally submitted to the justice, on the first day of May, 1852. The plaintiff's counsel objected to the evidence, upon . the same ground, and the referee sustained the objection, an'd the defendant's counsel excepted. The defendant's counsel then offered to show by the justice that the entry on the docket, in relation to the stipula- tion, was made by the justice by the directions of the plaintiff, and his counsel, after the third day of- May. To which the plaintiff's counsel objected, and the referee sustained the objec- tion and the defendant's counsel again excepted. The referee found the following facts : The plaintiff was in the employment of the defendant as clerk, one year and eleven months, ending 31st March, 1851, and that his services were worth at the rate of $375 a year, amounting to the sum of $718.75. That between the 31st day of March, 1851, and the time of the commencement of this action, the defendant appro- priated and converted to his own use, a two horse lumber wagon, the property of the plaintiff, without any express contract for, the purchase thereof; that said wagon at the time of such con- version was worth the sum of $40, and as a conclusion of law thereupon, the referee found that the defendant became and was indebted to the plaintiff at the time of the commencement of this action and for the said wagon so sold and delivered to him, in the sum of $40, making the total amount of the plaintiff's account proved, $758.75. The defendant proved a uook account against the plaintiff, amounting in all to the sum of $563.62, arid leav- ing a balance due to the plaintiff of $195.13. The defendant VOL. XX. 34 2QQ CASES IN THE SUPREME COURT. Smith v. Complon. also proved that the plaintiff commenced an action against him before Lyman Kendall, Esq. a justice of the peace of the county 'of Steuben, sometime in April, 1852 ; that on the 16th of April aforesaid, the parties appeared by counsel, and the plaintiff put in his complaint in writing, in one count whereof he complained against the defendant for the conversion of a wagon, in another for the sale of a wagon, and in'another for the use of a wagon, and claimed damages to the amount of $100. The defendant's answer denied the plaintiff's claim, and set up a counter-claim, and claimed damages to the amount of $100. The cause was thereupon adjourned by the consent of the parties to the first day of May then next, at the office of the said justice in Tyrone, at which time and place the plaintiff appeared by counsel, arid the defendant in person, and proceeded to try said cause. That after the evidence was closed on both sides, the plaintiff being absent, by a stipulation between the plaintiff (by his counsel) and the defendant, it was agreed that when the plaintiff return- ed he should have the- privilege of withdrawing said suit. That on the 3d day of May, 1852, the plaintiff withdrew the suit, and judgment was rendered against him for $1.97 costs. The ref- eree also found as fact, and as a conclusion of law from the pre- ceding facts, that the said cause was not " finally submitted" to the said justice to be decided by him on the merits. And he found as further conclusion of law, that the judgment so ren- dered by the said justice was not a bar to the plaintiff's claim in this action, nor any part thereof, and that the plaintiff was entitled to judgment against the defendant for $195.13, be- sides costs. D. J. Swiderlin, for the appellant. Seely fy Wolcott, for the respondent. By the Court, T. R. STRONG, J. An agreement of submis- sion of matters in difference to arbitrators, followed by the arbi- trators entering upon their duties the arbitration being still pending and undetermined constitutes no defense, or legal ob- CAYUGA JUNE, 1855. 267 Smith v. Compton. stacle, in abatement or in bar, to an action for the same matters, commenced after the making of the agreement. Such an agree- ment is a mere authority, revocable by either party, at any time before the case is finally submitted to the arbitrators for decis- ion, subject only to liability for damages. It is not a bar to a subsequent action, because it does not determine the right of action before an award is made, and no sufficient reason is per- ceived why it should preclude an action by operating in abate- ment of it. A former action for the same cause is, in general, a ground of abatement. The reason given in Gould's Plead- ing, (ch. 5, 122, p. 283.) is, that " the law, which abhors a multiplicity of suits, will not permit a defendant to be harassed by two or more actions for the same thing, where a complete remedy might be obtained by one of them. The object of the rule is to prevent vexation." This reason has but little if any force, in reference to a pending submission to arbitration. The agreement of submission, as has already been observed, is a meie revocable authority; the plaintiff in the action can have no security that his adversary will not revoke it ; and if the arbitration should proceed to an award, there is no mode, in the case of a common law arbitration, of enforcing the award but by action, when for the payment of money. This is very far short of the complete remedy obtainable by an action founded upon the original cause of action. Besides, very little vexation com- paratively, can be accomplished by the submission ; not suffi- cient to require that protection should be afforded by making it pleadable in abatement. But there is another reason why a submission to arbitration is not available in bar or abatement of a subsequent action for the same cause embraced in the sub- mission. The principle is well settled, that a specific perform- ance of an agreement to refer a subject of controversy, will not be enforced by^ the courts, on the ground that it is against public policy thereby to exclude parties from a resort to the proper judicial tribunals. (Story's Eq. Juris. 1457, and cases there tiled. Hag- ff art v. Morgan, 1 Selden. 422.) Upon the same principle, when an arbitration has been entered into which is still pending the case not having been submitted for final de- 268 CASES IN THE SUPREME COURT. Smith v. Compton. cision it will not be allowed to affect the right of either party to seek and pursue a remedy for the same matter in a court of justice. The doctrine that the submission of a pending action operates as a discontinuance, has nothing to do with the question consid- ered. The ground of discontinuance in such a case is, that by the submission the parties voluntarily provide another mode for the trial than that prescribed by law in the action, and thereby substantially agree to, and do, withdraw the cause from the court ; to which agreement there can be no valid legal objection. The decision, excluding parol proof by the justice of what took place before him, if erroneous, did no harm, as his docket was immediately given in evidence ; but I am inclined to think it was correct. (Boomer v. Laine, 10 Wend. 525. Brother- ton v. Wright, 15 id. 237. Heermans v. Williams, 11 id. 636.) The evidence offered, in contradiction of the docket of the justice, was, I think, properly rejected. The substance of the entry in relation to the stipulation was, that by consent of the parties the cause was submitted conditionally, with a reserva- tion to the plaintiff of liberty to withdraw the suit, which con- sent was, in my opinion, binding on the parties, and properly formed a part of the docket, (2 R. S. 269, 244.) It was no more subject to be contradicted than any other part of the docket, (Hard v. Shipman, 6 Barb. 621. Brintnall v. Fos- ter, 7 Wend. 103. McLean v. Hugarin, 13 John. 184.) Proof of an award Avas not admissible under the pleadings. It is not alleged in the answer that an award had been made ; on the contrary it is averred that the submission is pending and undetermined. This disposes of all the points made on the argument before us, and the judgment on the report of the referee must be affirmed. [CAYUGA GENERAL TERM, June 4, 1855. Sdden, Johnson and 1 R. Strong. Justices.] CAYCGA JUNE, 1855. 269 I 20 ELIZABETH JACQUES, survivor, &c. vs. JOSIAH SHORT. 21 ij Where a lease is executed by husband and wife, of land in which the wife has an estate for life, and the lessee covenants, in terms, to pay rent to both, this of itself is sufficient to entitle the husband and wife to join in an action for the rent; notwithstanding the wife did not acknowledge the execution of the lease and therefore was not bound by it. One effect of uniting the wife, in such an action, is that upon the death of the husband his interest in the cause of action survives to the wife, and no inter- est vests in the personal representatives of the husband. By uniting the wife, the husband signifies his assent to giving her such an inter- est in the cause of action ; and he thereby vests the wife with his interest, in the event of his death. For this reason the section of the statute which gives to the executors or admin- istrators of a person to whom rent shall have been due and xmpaid at the time of his death, the same remedy, by action, for the arrears, which the decedent might have had if living, is not applicable to such a case. Where land is demised to A., and he conveys the same to B. by deed, without any reservation or reference to the lease, and B. conveys to C. and the latter to D. in like manner, D. acquires all the interest of A., the original lessee, therein, and becomes in law an assignee of the lease ; and as such he is liable on the covenant to pay rent. An assignee is liable on all covenants which run with the land as covenants to repair; pay rent, &c. although not expressly named therein. And he cannot claim any benefit from the omission of the lessor to record the lease. He is chargeable with notice of the lessor's rights ; inasmuch as they fully appear in the chain of liis own title. 1 PPEAL from a judgment entered at a special term, after a jLA. trial at the circuit. The action was brought to recover rent due on a lease from the plaintiffs Darius Jacques and Eliz- abeth his wife, to the defendant's grantor. On the 1st of April, 1839, Mrs. Jacques being entitled as the widow of Levi Van Farren, a former husband, to a life estate in certain premises as tenant in dower, and she and her husband, D. Jacques, being in possession thereof, they executed a lease of the premises to Elijah Stephens, for and during the natural life of Mrs. Jacques, at an annual rent of $100. This lease was neither acknowl- edged nor recorded. The covenants in the lease did not in terms include the "assigns" of either party. On the 25th of June, 1839, Elijah Stephens and wife conveyed the same prem- 270 CASES IN THE SUPREME COURT Jacques v. Short. iscs, without any reservation or reference to the lease or to the claims of the plaintiff, to Samuel Wright. On the 18th. of No- vember. 1845, Samuel Wright in like manner conveyed to Cal- vin Ward, and Calvin Ward on the 2d day of April. 1849, conveyed in like manner to the defendant, Josiah Short. Ste- phens, from the time the lease was executed in 1839, continued to pay the stipulated rent, until the year 1850. This action was brought upon the lease, by Jacques and wife against Short, for the recovery of the rent in arrear. Darius Jacques died after the suit was commenced. The action was tried at the Livingston circuit, in May, 1854, before Justice Welles, without a jury. Judgment was given in favor of the plaintiff, for $258.84. T. Hastings, for the appellant. I. The defendant cannot, in this form of action, or indeed in any form of action, be made liable upon the lease, either as the assignee of the term, or oth- erwise ; and the learned judge erred in permitting the lease to be read in evidence, as well as in adopting the conclusion of law that the defendant was liable. (1.) As the joint lease of Da- rius and Elizabeth Jacques, for the term of her natural life, it has no vitality, for the reason that she, being a feme covert, could not pass the estate without an acknowledgment of her deed. If, on the other hand, the lease is to be upheld as the separate deed of Darius Jacques, then he had no right to create the estate or term for life of the wife. He could only create a, term coextensive with the coverture. If the lease is to be re garded as valid to pass the estate during coverture, then the rent in arrear at the time of his death would go to his represent- atives ; and the cause of action does not survive to the present plaintiff. (2 R. S. 32, 21.) All the rent claimed in this ac- tion accrued during the coverture, and the present plaintiff could not have maintained an action therefor even against Ste- phens ; much less against a 'stranger to the contract. (2-^ The covenant contained in this lease, on the part of Stephens, is merely personal, and does not run with the land. It does not Contain any words of succession such as "executors," "admin- CAYUGA JUNE, 1855. 271 Jacques v. Short. istrators" or "assigns." It has been so regarded by the pt.rties. Stephens continued to pay the rent as upon a personal covenant nearly eleven years after he had parted with the estate. The defendant is not the lessee in fact or in form ; and there is no privity of contract between him and the plaintiff. If he is at all liable, it must be by privity of estate. To constitute this relationship, the covenants in the lease must run with the land ; and to make the defendant liable, he must have entered and possessed the estate. The covenants in the lease are be- tween Jacques and Stephens, and do pot extend to the assignees of either party, (because not named,) and no covenants can be implied. (2 Barb. Ch. Rep. 559. 14 Wend, 88.) The cove- nants in such a lease do not run with the land. (6 Cowen, 302. 8 id. 266. 4 Comst. 134.) No privity of estate can be created under such a lease, except by contract. (2 Hill, 444.) The doctrine of a privity of estate, so as to render the assignee liable, does not extend to a grantee of a grantee, that is, be- yond the immediate grantee of a lessee ; and the defendant being a grantee under several other grantees, is not liable. II. If the court shall be of opinion that the preceding point is not well taken, then it is insisted that the defendant is pro- tected by the statute relative to the recording of conveyances. (2 R. *S*. 47.) The lease not being recorded, is void as against the defendant, (1.) All the rights of parties to conveyances apply to this case, the lease not being recorded, and not being so executed as to entitle it to be recorded. (2 R. S. 40 to 47, 44.) (2.) The doctrines of protection to a grantee with no- tice from a grantee without notice, and vice versa, are fully stated in Clinton's Digest, page 389, 311, 312, 313. (2 Hill, 650. 1 Paige, 323.) (3.) The defendant had not sufficient notice in fact. Explicit notice must be shown ; notice to put a party on inquiry is not sufficient. (1 Clint. Dig. p/>. 386, 389, 307 to 310. 8 John. 137. 12 id. 452, 8 Cowen, 260.) (4.) The estate under the lease was forfeited by the non-pay- ment of rent, and ceased running with the land ; and no action can be maintained against the defendant for rent accruing after forfeiture. (21 Wendell, 120.) Waiver of the forfeiture dis- 272 CASES IN THE SUPREME COURT. Jacques v. Short. charged the defendant. (5.) The defendant was only liable for the rent accruing while he was assignee. When he parted with the possession he discharged himself. (9 Cowen, 88. 3 Barb. Ch. Rep. 52.) Charles C. Wilson, for the plaintiff. I. The rulings of the court below upon the admission of evidence were correct. A covenant extends to the heirs and assigns of a party, although not named in the instrument. Actual notice of the plaintiff's title, before purchase by the defendant, may be shown. The in- terrogatory was a proper one. But it may be true that he did not prove a sufficient notice. {Jackson v. Bnrgott, 10 John. Rep. 457.) II. Proof of the defendant's possession of the demised prem ises is prima facie evidence that he is assignee of the term, and sufficient in connection with the lease to entitle the plaintiff to recover. There is sufficient evidence to warrant the court be- low in finding that the defendant was assignee of the lessee. (Armstrong v. Wheeler, 9 Coieen, 88. 4 Hill, 112. Durando v. Wyman, 2 Sand. S. C. R. 597.) III. The conveyances, from Peck down to the defendant, op- erate as assignments of the lease. The lessee could not hold adversely, having taken the lease ; and every conveyance must in law have been given under and in subordination to the lease. The presumptions from possession and the deeds must be considered together, and reconciled, if possible. Stephens may have agreed to pay the rent to the plaintiff, but the grant- or is, notwithstanding, the assignee of the lessee. (Childs v. Clark, 3 Barb. Ch. 52, 59. 4 Cruise, 160, 161.) IV. That the plaintiff had a life estate in these lands, is ad- mitted. It also appears that her interest was apparent of record. (1.) The defendant held the estate of which the plain tiff's first husband died seised, under and through such husband. (2.) One of his title deeds contains an admission of the plain- tiff's title and estate, which estops the defendant from denying notice of the plaintiff's title. (Jackson v. Parkhurst, 9 Wend, 209. Chautanque Co. Bank v. Risley, 4 Demo's Rep. 480. CAYUGA JUNE, 1855. 273 Jacques *. Short. 1 Clinton's N. Y. Digest, 474.) (3.) The lease and the sub- mission to arbitration are confessions of the defendant's grantors, and operate to charge him with notice. (1 Comtoe/c, 525.) (4.) The possession of the lessee and his assigns is the pos- session of the lessors, the plaintiffs, and grantees of the estate are bound to take notice of the rights and interests of the person in possession. (5.) R. R. Jacques informed the defend- ant that his grantor was paying the plaintiff rent for this land. (6.) The lease is one of the muniments of the defendant's title, and follows the estate, and the presumption is that its counter- part is the defendant's possession, received from Stephens, through the intermediate grantees. (7.) It was not the grant ors' duty to get the lease recorded ; they did not have posses- sion of the lease. The grantee of the estate created by the lease was the person for whose protection and by whom the lease should have been recorded. The object of the registry act is to protect third persons from the subsequent fraudulent acts and conveyances of the grantors, and not to give the grantee and his assigns and privies in estate, notice of the extent and quality of their own estates, as is claimed by the defendant in the case at bar. By the Court, T. R. STRONG, J. It was admitted at the trial, that at the date of the lease the plaintiff had title to the demised premises for her life. This title was of course sub- ject to the estate of her husband in the premises by virtue of the marriage, for their joint lives; and it is settled that in an action "for rent or other cause of action, accruing during the marriage, on a lease or demise or other contract relating to the land or other real property of the wife, whether such contract were made before or during the coverture, the husband and wife may join, or he may sue alone." (1 Chit. PL 5th Am. ed. 20. 1 Roper on H. fy IV. 213. Reeve's Dom. Rel 131 to 133. Decker v. Livingston, 15 John. 479.) In this case the covenant to pay rent is in terms to both, which of itself is sufficient to en- title them to join in the action, although she did not execute the lease in such a manner as to be bound by it the execution VOL. XX. 35 274 CASES IN THE SUPREME COURT. Jacques v. Short. of it not having been acknoAvledged by her. One effect of unit- ing the plaintiffs in the action was, that upon the death of the husband the interest in the cause of action survived to the wife, and no interest vested in the personal representatives of the hus- band. (1 Chit. PL 21. 1 Roper on H. $ W. 212.) By unit- ing the wife, the husband signified an assent to give her such an interest in the cause of action. (1 Roper on H. <$* W. 213. Reeve's Dom. Rel 132.) The statute (1 R. S. 747, 21) giving to the executors or administrators of a person to whom rent shall have been due and unpaid at the time of his death, the same remedy by action for the arrears which the testator or in- testate might have had if living, is not applicable ; for the rea- son that the husband had vested the plaintiff with his interest, in the event of his death. The defendant, by the conveyance to him of the premises, acquired all the interest of the original lessee therein and be- came in law an assignee of the lease. (Provost v. Colder, 2 Wend. 517. Armstrong- v. Wheeler, 9 Cowen, 88. Acker v. Witherell, 4 Hill, 112.) As such he is liable on the covenant to pay rent. An assignee is liable on all covenants which run with the land, as covenants to repair, pay rent, &c.. although not expressly named therein. ( Verplanck v. Wright, 23 Wend. 506. Allen v. Culver, 3 Denio, 284. WoodfalVs L. $ T. 278.) The defendant cannot claim any benefit from the omission to record the lease. He is chargeable with notice of the plain- tiff's rights, as they fully appear in the chain of his own title. The views presented cover all the points of the appellants, and in my opinion the judgment at special term should be affirmed. Judgment affirmed. [CAYUGA GENERAL TERM, June 4, 1855. Selden, Johnson and T. R. Strong. .Justices.] CAYUGA JUNE, 1855. 275 FIERO vs. REYNOLDS. The provision of the statute, prescribing the time within wh ch a venire for a stcond jury, upon a discharge of the first by a justice, for their failure to agree, shall be made returnable, (2 JR. S. 245, 111,) was designed for the conven- ience of the parties, and a compliance with it may be waived by their consent- ing that the process be returnable at a later period. Where the return of the justice, after stating the discharge of the first jury, added " I then proposed to the parties to postpone the cause until the 17th day of May, 1853, at &c., to which neither party made any objection. I then issued another venire," returnable at the time and place proposed ; Held that it must be inferred, upon the principle that every reasonable intendment is to be made in support of a judgment, that the parties understood the proposition, and said nothing indicating dissent; that the parties were in a position requiring them to express their dissent, or be concluded ; and that the omission to object was equivalent to an express consent to the postponement. In such a case a consent, in express terms, is not necessary. APPEAL from a judgment of the Cayuga county court. The action was commenced before a justice of the peace, by summons returnable May 7, 1853, and was tried on the 14th of May. before a jury ; a venire being called for by the defendant. The jury did not agree, and were discharged by the justice, on the same day, Saturday. The justice stated in his return, that he then " proposed to the parties to postpone the cause until the 17th day of May, (Tuesday.) to which neither party made any objection." There was no other consent to this arrange- ment than such as is to be implied from the silence of the parties. On the adjourned day the plaintiff appeared, with his witnesses, and took judgment. The defendant did not appear, but ap- pealed to the county court, arid there alleged for error the viola- tion of the section of the statute which provides that when a jury cannot agree, and are discharged, the justice " shall issue a new venire, returnable within forty-eight hours, unless the parties shall have consented that the justice may render judg- ment on the evidence already before him ; which in such cases he may do." (2 R. S. 245, 111.)' The county court reversed the judgment of the justice, and the plaintiff appealed to this court. 276 CASES IN THE SUPREME COURT! Fiero v. Reynolds. Wm. Allen, for the appellant. Jas. R, Cox, for the respondent. By the Court, T. R. STRONG, J. If the justice erred, in making the second venire returnable more than forty-eight hours after discharging the first jury, it did not affect his juris- diction ; the case was one of mere error or irregularity, in the exercise of jurisdiction. But his judgment was subject to re- versal for the error, as much so as if he had acted without juris- diction. (Hard v. Shipman, 6 Barb. 621.) The provision of the statute, prescribing the time within which a venire for a second jury upon a discharge by a justice of the first for their failure to agree, shall be made returnable, (2 R. S. 245, 111,) was designed for the convenience of the parties, and compliance with it may be waived by their consent- ing that the process be returnable at a later period. (Embury v. Conner, 3 Comst, Rep. 511, and cases there cited.) It is claimed on the part of the appellant, that such consent was given in this case, and that presents the principal question for decision. The return of the justice, after the statement of the discharge of the first jury, proceeds, " I then proposed to the parties to postpone the cause," to the time to which it was postponed, " to which neither party made any objection." The proposition was to the parties, from which it must be understood that it was heard by them. It is not stated what language was used in making the proposition, or whether or not any thing was said by the parties, or either of them, in answer to what was said by the justice. If the respondent had regarded it as important, he might doubtless, by proper proceedings in the county court, have procured an amendment of the return, in those particulars, but in the absence of more precise information, it must be in- ferred, upon the principle that every reasonable intendment will be made in support of a judgment, that thf parties understood CAYDGA JUNE, 1855. 277 Ficro v. Reynolds. it, and that neither said any thing indicating dissent. The re- turn next states, " I then issued another venire," returnable at the time and place proposed, and it is a reasonable inference that this was done in the presence of the parties. It thus ap- pears that there was not only the proposition by the justice, but that it was acted upon at the time, with the full knowledge of the parties ; and the statement that no objection was made ap- plies to the whole period. Was not this omission to object equivalent to an express consent to the postponement? Were not the parties in a position that required them to express their dissent or be concluded? Could the justice fail to understand the parties as consenting? The proper answers to these ques tions appear to me to be plain. I am satisfied that both parties intended to, and did in fact, at the time, consent to the post- ponement. ( Whitney v. Crirn, 1 Hill. 61. Kilmore v. Su- dani, 7 John. 530. Bullard v. Spoor, 2 Cowen, 430. Acker- man v. Finch, 15 Wend. 652.) It was pr-oper for the justice to return the particulars of what took place before him in relation to the postponement. It is sufficient to sustain his judgment if it is apparent from the return that the consent of the parties was given ; and the court will draw the conclusion as to the general fact from the partic- ular facts returned. The principle of the case of Taylor v. Betsford, (13 JoJui. 487,) is not applicable to this case. It is, that the consent of parties to a justice entering the room where the jury are delib- erating, privately and apart from the parties, to answer ques- tions at the request of the jury, will not be inferred from the knowledge of the parties that he was going into the room, and their not making objection ; inasmuch as the practice is danger- ous and improper, and ought to be guarded against. Here there is no dangerous or improper practice against which it is impor- tant to provide. The case referred to, as has been said by the court in subsequent cases, is an extreme one, and the principle ought not to be extended. ( Whitney v. Crim, above cited. Moody v. Pomeroy, 4 Denio. 115.) In cases like the present. I 278 CASES IN THE SUPREME COURT. Clark v. Van Vrancken. am of opinion that a consent in express terms is not necessary. The judgment of the county court must be reversed, and that of the justice affirmed. [CAYUGA GENERAL TERM, June 4, 1855. Selden, Johnson and T. R. Strong, Justices.] CLARK vs. VAN VRANCKEN. The general doctrine that where a party does not appear he waives nothing, is well settled ; but this means, nothing impeaching the jurisdiction or authority of the court to act, and nothing 5n the way of objection to the proceedings and the competency or sufficiency of evidence on the part of the plaintiff. This is the extent to which the rule has been or can properly be carried. With the exception of objections to the jurisdiction, and those which arise upon the proceedings and case of the plaintiff, all objections are waived by an omission to appear and make them, in the proper form, before judgment. An omission to challenge is a waiver of all objection to a juror, in like manner as an omission to plead a defense is a waiver of the defense. And this, whether there be an appearance or not. Accordingly, where in an action before a justice of the peace, an adjourment took place, afler issue joined, and the defendant, although present, did not ' appear, on the trial ; it was held that he could not. on appeal from the judg- ment, raise the objection that some of the jurors who sat upon the trial were not competent, as such, for want of the requisite property qualification. A PPEAL by the defendant from a judgment of the Living- _/!_ ston county court. The action was commenced before a justice of the peace, and, after issue joined, was tried by a jury, who found a verdict in favor of the plaintiff for $100. From the judgment rendered thereon, the defendant appealed to the county court, Avhere the judgment of the justice was reversed. The defendant did not appear, on the trial before the justice, or make any objection to the jurors, or either of them, but in the county court he assigned for error in fact that William Woolever, Isaac Preston and Merrick C. Townsend, and each of them, were not competent jurors, by reason of not having the property qualifications required by the statute. CAYUGA JUNE, 1855. 279 Clark v. Van Vranckeu. R. L. Dorr, for the appellant. / J. A. Van Derlip, for the respondent. By the Court, T. R. STRONG, J. The complaint, in each count, charges an entry upon real estate, and in connection .herewith the commission of other acts. In two of the counts the taking and carrying away of personal property, and in the other, making a noise and disturbance, and using indecent lan- guage to the plaintiff's family, whereby the plaintiff's wife be- came sick, and he lost her services. The cause of action, in each count, is the entry on the premises ; all the rest is matter of aggravation. (Howe v. Willson, 1 Denio, 181. HJoughtaling v. Hbitghtaling, 5 Barb. 379, 382. Eames v. Prentice. 8 Gushing, 337.) And the proof given upon the trial abund- antly established the several causes of action, and most of what is alleged in aggravation. The defendant cannot have any benefit from the slight proof in support of a license in fact to enter upon the premises, as no justification of that character is set up in the answer. (Haight v. Badgeley and wife, 15 Barb. 499.) There was no proof introduced to sustain the justification, or new matter pleaded by the defendant. This disposes of the whole case, with the exception of a single point presented by the assignment of error in fact, viz : that some of the jurors who sat upon the trial were not com petent, as such, by reason of not having the property qualifi- cation prescribed by the statute. After issue was joined an adjournment took place, and the defendant, although present, did not appear on the trial. (Fanning v. Trowbridge, 5 Hill. 428.) It is claimed in his behalf, that as he did not appear, no objection which he might have taken, had he appeared, is waiv- ed, and that he may avail himself of any such objection on appeal. The general doctrine, that when a party does not appear he waives nothing, is well settled ; but this means, nothing im- peaching the jurisdiction or authority of the court to act, and 80 CASES IN THE SUPREME COURT. Clark v. Van Vranckcn. nothing in the way of objection to the proceedings and the com- petency or sufficiency of evidence on the part of the plaintiff. This is the extent to which the rule has been or Can properly be carried. In McNutt v. Johnson, (7 John. 18.) the objection was the incompetency of the proof, and the court say, "The defendant not being present at the trial cannot be deemed to have waived any objection to the competency of the proof; it ought therefore to have been legal." In Northrup v. Jackson, (13 Wend. 85,) it was objected " that the declaration was gen- eral when it should have stated the special contract, and also that parol evidence was given of the letter of the defendant upon which his liability rested." The court say, " as the defendant waived nothing on the trial he has a right now to raise the objections." In Squier v. Gould, (14 Wend. 159,) the objection allowed was, that evidence was received which was not admissible. In Tiffany v. Gilbert. (4 Barb. 320,) error in fact was assigned on certiorari, that the judgment was rendered by a justice of the peace not residing in the same town with either of the parties, nor in an adjoining town. &c. wherefore the justice had not jurisdiction. The judg- ment was reversed in the county court on that ground, and the decision was affirmed in this court. The objection in the case last cited did not appear in the plaintiff's proceedings or evidence, but as it went to the jurisdiction of the court, the plaintiff was allowed to make it by assigning error in fact. (See Robinson v. West, 11 Barb. 309.) In Post v. Black, (5 Dcitio, 66. 67.) the return of the justice showed he was re- luted to the plaintiff, and it was objected on the return only, without any assignment of error in fact, that the justice was thereby disqualified from acting as such, and the court, after remarking that the omission to notice the objection at the trial was not a waiver of it, say. " The question of jurisdiction may be raised at any time." In cases of defect of jurisdiction, the proceedings are gen- erally a nullity, and may be attacked for that cause collaterally; arid there is therefore much propriety in permitting a party who did not appear in the court below, to have the benefit in CAYUGA JUNE, 1855. 281 Clark v. Van Vrancken. error of such a defect by assigning error in fact ; but with the exception of objections of that character, and those which arise upon the proceedings and case of the plaintiff, I think all objections are waived by an omission to appear and make them in the proper form, before judgment. The right to answer, and hence of necessity the right to make a defense which must be set up by answer in order to be available, is waived by not appearing in. the court below. Payment, release^ set-off, accord and satisfaction, and all affirmative defenses, or defenses aris- ing out of new matter to be brought forward by the de- fendant, which existed before judgment, are thus waived. No one would think of making such matters the subject of an assignment of error in fact. The same principle which ex- cludes this, applies, in my judgment, with the exceptions already stated, to all objections in the nature of a pleading founded upon new matter. And to this class belongs a chal- lenge to a juror for a want of the requisite property qualification, or for any thing else forming a principal cause of challenge. Such a challenge is in the nature of a pleading, although not strictly a pleading as regulated by the code ; it must be answered by a denial or a demurrer, and an issue thus be formed upon it, which must be formally tried ; the issue makes a part of the record, and the proceedings and decision upon it may be re- viewed on appeal. (Ex parte Vermilyea, 6 Cowen, 555. The People v. Vermilyea, 7 Cowen, 108. The People v. Mather, 4 Wend. 229.) A challenge to a juror does not go to the jurisdiction of the tribunal ; though a juror be incom- petent as such the trial is not invalidated ; and the only mode by which the incompetency can be alleged and the facts consti- tuting it introduced is by a challenge which must be supported by proof, if the facts are disputed. Where there is no chal- lenge there is no issue and no basis for the proof. And the challenge must be made before the trial, otherwise the right to make it is waived. On the whole, I am satisfied, that an omission to challenge is a waiver of all objection to a juror, in like manner as an VOL. XX. 36 282 CASES IN THE SUPREME COURT. Curtiss v. Rochester and Syracuse Rail Road Company. omission to plead a defence is a waiver of the defense. Wheth er there be an appearance or not makes no difference. The judgment of the county court must be reversed, and that of the justice affirmed. [CAYUGA GENERAL TERM, June 4, 1855. Selden, T. R. Strong and Johnson , Justices.] CURTISS vs. THE ROCHESTER AND SYRACUSE RAIL ROAII COMPANY. In an action against a rail road company, to recover damages for an injury sus- tained by a passenger by means of a collision, it is not erroneous for the court to charge the jury that, in ascertaining the amount of the plaintiff's damages, it is proper for them to consider the bodily pain and suffering which has occurred, or is likely to occur, in consequence of the injury, but that they cannot act upon conjecture as to the prospective condition or situation of the plaintiff; and that the jury can only consider, in respect to the future, what the evidence renders reasonably certain will necessarily and inevitably result from the original injury. Bodily pain and suffering which is necessarily and directly to flow from the injury, is as much a part o,f the injury as the continuance of a physical disability occasioned by it. Only one action can be maintained to recover damages for a personal injury. Yet it is not necessary for the injured person to wait until all the consequences of the injury have become fully developed. He is entitled to sue whenever he thinks proper, and to recover damages for both past and future pain of body, as well as for past and future deprivation of health, or of any of his bodily powers. But in respect to all the subjects of damage, it is requisite that they should be the legal, direct and necessary results of the injury, and that those which, at the time of the trial, are prospective, should not be conjectural. Damages arising from bodily pain and suffering need not be alleged specially in the complaint. Where it appeared, from the evidence, that the cars were thrown off the track of a rail road, and a collision thereby occasioned, because the rails were not right, or from some defect in the mode of securing them in their place ; Held that the degree of care which the law imposed on the rail road company required tnem to see that the rails were in a right position, and not to trust exclusively to the lever of the switch, when the rails were in open view while moving it ; and also to see that the rails were firmly secured ; and that if they omitted tc do so they were guilty of negligence. CAYCGA -JUNE, 1855. 283 Curtiss 11. Rochester and Syracuse Rail Road Company. It was therefore held, further, that the question of negligence was properly sub- mitted to the jury. Also held, that proof, uncontradicted, that the switch was rightly placed, did not rebut all presumption of negligence. Where, in an action against a rail road company to recover damages for a per- sonal injury occasioned by a collision, there was evidence showing that the plaintiff had been incapacitated by the injury from labor most of the time for nearly two years, and there was also testimony tending to prove 'that the disa- bility would be permanent, or at least long continued ; Held, that a verdict of $4,500 was not so excessive as to indicate partiality, prejudice, passion, or any thing improper, in the jury. TVHIS was an action to recover damages for an injury re- ceived by the plaintiff while a passenger in the car of the defendants, in consequence of the defendants' negligence. The complaint alleged that the defendants were common carriers, for hire and reward, of persons and their baggage, between Syracuse and Rochester. That on the 7th day of August, 1852. the plaintiff became a passenger in the defendants' car at Geneva, to be carried safely to Auburn ; and that while on the way the defendants so carelessly and negligently conducted themselves, their railroad, and the cars in which the plaintiff was sitting, that the engine and cars ran off the track at Wa- terloo, and produced a collision between the different cars of the same train ; and that by reason of that collision and the neg- ligence of the defendants, she received an injury on one of her legs. The complaint also set forth and claimed special damages in all, $12,000. The answer was a denial of each and every allegation of the complaint, except that which alleged that the defendants were a body corporate, and that they owned the said rail road and used it for the conveyance of passengers from Syracuse to Rochester. The action was tried at the Cayuga circuit, in May, 1854, before Justice Johnson. The plaintiff proved the facts set forth in the complaint, and introduced med- ical and other testimony to show the nature and extent of the injury sustained by her. The collision occurred at Waterloo, where there were three tracks a middle one, and one on each side, and while the train in which the plaintiff was a passenger was running at the usual speed, upon the middle track. The 284 CASES IN THE SUPREME COURT. Curtiss v. Rochester and Syracuse Raif Road Company. train ran off on to a side track, and thence into the ditch. The court charged the jury that the fact of this accident occurring, was of itself presumptive evidence of negligence on the part of the defendants, and it lay with them to explain and to prove that they were not negligent, in order to discharge them from liability for the injury occurring to the plaintiff; that it was a question of fact for the jury to determine from all the circumstances and evidence of the case, whether the switch was rightly placed, and whether the injury arose from any neg- ligence on the part of the defendants ; that if the injury was the result of pure accident only, and without any neglect of the defendants, the plaintiff could not recover ; and that it was a question of fact, for the jury to determine from the evidence, whether the injury arose from any neglect of the defendants ; and if so, then the defendants were liable. To which charge * O the defendants excepted. The court further charged the jury that this was not a case for exemplary damages ; but that it was for the jury to determine, from the evidence, the amount of damages which the plaintiff had sustained or was likely to sus- tain in consequence of the neglect of the defendants ; and that in ascertaining such damages, they would be justified in taking into consideration, and it would be proper for them so to consider, the bodily pain and suffering which the plaintiff suf- fered or was likely to suffer in consequence of the neglect of the defendants ; and also, for the loss of her time and the physicians' bills and such expenses and injuries as the plaintiff had sustained in consequence of the neglect of the defendants, and to award to the plaintiff such damages therefor as in their judgment would be proper. To which charge, so far as it re- lated to bodily pain and suffering, the defendants excepted. The defendants requested the court to lay down some more defi- nite rule to the jury for estimating damages in cases of injuries of this kind. But the court declined so to do ; and the defend- ants excepted to such refusal. But the court did' charge that future or prospective damages could not be awarded by the jury upon conjecture as to the probable condition or situation of the plaintiff, resulting from the injury ; and that future damages CAYUGA^JUNE, 1855. 235 Cuitiss v. Rochester and Syracuse Rail Road Company. could only be awarded when it is rendered reasonably certain from the evidence, that such damages will inevitably and neces- sarily result from the original injury. The court further sharged, that the presumption of negligence may always be repelled by proof that due and proper care had been taken by the defendants, and if the jury were satisfied that the accident occurred in consequence of some secret defect in the materials, which could not be discovered by human foresight, then the in- jury was the result of a mishap for which the defendants were not to blame and could not be legally amerced in damages, and the verdict must be for the defendants. The counsel for the de- fendants then asked the court to charge the jury that they could not take into consideration, in estimating the plaintiff's damages, the bodily and mental pain and suffering which the plaintiff un- derwent, resulting from the injury ; and that the only compen- sation which the jury could award to the plaintiff was for the pecuniary loss which she had sustained ; which request the court declined, and the defendants excepted. The defendants then re- quested the court to charge that the proof, uncontradicted, in this case showed that the switch was rightly placed for the train in which the plaintiff was a passenger, and awaiting its approach ; and that this rebutted any presumption of negligence arising from the accident; and that the plaintiff could not recover without proof of actual negligence. The court declined thus to charge, and the defendants excepted. The jury found a verdict for the plaintiff for $4,500, and the plaintiffs, upon a case, moved for a new trial. Geo. Rathbun, for the plaintiff. There is in this case no ob- jection or exception for the admission or rejection of evidence. The only points taken or raised on the part of the defendants, are on the charge of the court to the jury. I. The charge of the court, at fol. 87 and 88, is correct, to wit : " The fact ot this accident occurring, was of itself presumptive evidence of neg- ligence on the part of the defendants, and it lay with them to explain it, and to prove that they were not negligent, in order to discharge them from liability for the injury occurring to the 2S6 CASES IX THE SUPREME COURT. Cartiss v. Rochester and Syracuse Rail Road Company. plaintiff." The counsel for the defendants will hardly attempt a denial of the first proposition in this part of the charge. The legal presumption is too well established. This being conceded, as it must be, the second is an unavoidable and necessary con- sequence. It is a conclusion of law, arising from a legal pre- sumption. Presumptive evidence of negligence is prima facie evidence, which, unexplained or uncontradicted, entitles the plaintiff to a recovery. Hence, to avoid the force of this pre- sumption, the defendant must disprove or explain it. II. This part of the charge contains two distinct propositions ; one is undoubtedly correct ; if the other be, in fact, incorrect, the defendants cannot take advantage of it, because their excep- tion is to the two propositions combined. It is too broad. An exception or objection must be specific. It must be limited to matter claimed to be erroneous, and must be, in fact, erroneous, not in part, but entire. A general objection to a charge, or part of a charge, must stand or fall upon the question. Is the part so objected to, in the whole erroneous ? III. The rule laid down by the court to guide the jury in the ascertainment of the plaintiff's damages is not erroneous. This part of the charge contains several propositions, various in char- acter, and presenting the various items, proper to be taken into consideration by the jury in determining the amount of damages. It cannot be denied that most of these items are correct. It may now lie contended that the bodily pain and suffering " which the plaintiff was likely to suffer in consequence of the neglect of the defendants," as stated in the part of the charge excepted to, was erroneous. This Ave deny. But we claim that the defend- ants are not at liberty to raise that question. No such point is made in the case. If the counsel had placed his exception on this precise ground, it is possible the court might have modified its charge in this respect. At all events, the attention of the court would have been called directly to the question, and a de- cision made, with the knowledge that the counsel regarded it as erroneous. The exception taken, points equally to any and all other portions of the charge to which exception is taken, This exception is too broad. Nothing was said about the damages OAYUGA JUNE, 1355. 287 G'urtiss v. Rochester and Syracuse Rail Road Company. alleged in the complaint ; no exception was placed on any such ground. It is too late to do so in this court. IV. The damages found by the verdict of the jury are not excessive. Y. The court was correct in declining to charge as requested by the defendants' counsel. Geo. Underwood^ for the defendants. I. The learned judge erred .in charging the jury, "that in ascertaining the plaintiff's damages they would be justified in taking into consideration, ana it would be proper for them so to consider, the bodily pain and suf- fering which the plaintiff suffered, or was likely to suffer, in con- sequence of the neglect of the defendants." We are aware that this court in the case of Morse v. The Aub. and Syr. R. R. Co., (10 Barb. 621,) have held that a jury could give damages for pain and suffering in an action of this kind. Without question- ing here the correctness of that decision, we place our objections to the charge of the court in this case upon strictly legal prin- ciples. (1.) The charge permits and invites the jury to conjec- ture or attempt an estimate of the extent, duration and intensity of future pain and suffering. This goes much farther than the case cited. Such damages would be analogous to the allowance of unearned and contingent profits', which is never permitted (Blanchard v. Ely, 21 Wend. 342. Giles v. O' Toole, 4 Barb. 261). The same rule prevails in actions of tort as on contract. (21 Wend. 350. 3 Wheat. 546. IHow.ZS.) (2.) It allowed the jury to go out of the evidence. There was no proof of any future pain, or that there would be any. The age of the plain- tiff was not shown, so that the jury might have even that for a starting point in their conjectures of the probable duration of her life, and consequent duration of suffering. (3.) There was no claim for any such special damage in the complaint, and al- lowance for damages therefor would be giving more than she claimed. The complaint only claims that she suffered pain from the time of the injury to the commencement of the action. It is nilent in respect to future pain and suffering. The plaintiff cannot recover any other special damages than those alleged. (3 Am. CASES IN T1IE SUPREME CO GET. Curtiss v. Rochester and Syracuse Rail Road Corrpany. Jurist, 294. 3 Bing. N. C. 371. 4 Blackf. 277, 8. 2 Phil Ev. 248. 4 Barn, fy Adol. 514.) The law presumes that the plaintiff knows what her damages are, and that she will not fail to allege enough. " And therefore, for the jury to give more damages than the plaintiff declares for, would be unreasonable." (Lilly 1 !! Prac. Rep. 2d ed. 1. 1 Archb. N. P. 414.) If dam- ages for future loss be claimed, the complaint should have count- ed upon and averred the same, as was done in the ca?e of Colletl \. The London and Northwestern Railway Co., (6 .Qng.. Law and Eq. Rep. 307.) And the jury having been thus instructed upon a question of this kind, where their sympathies would natu- rally and generously run in favor of the plaintiff against a rail road corporation, it is impossible to say what proportion of the ver- dict was occasioned by their calculations upon this point. (Graham on New Tr. 260 to 265.) (4.) Such damages must !>e, in the nature of man's existence and constitution, wholly and absolutely contingent and conjectural ; dependent upon life, health, disease, conditions, circumstances and providences, which we humbly insist are not within the province of a jury, sworn to give a true verdict, according to the evidence upon the issues, an I no other, joined between the parties. (5.) The complaint does not aver any pain or suffering in consequence of the de- fendants' neglect. II. The learned judge also erred in declining to charge the jury, as requested by the counsel of the defendants, that the proof showed that the switch was rightly placed ; that this re- butted any presumption of negligence ; and that the plaintiff could not recover without proof of actual negligence. And the court also erred in charging the jury as it did, that it was a question of fact, for the jury to determine, from the evidence, whether the injury arose from any neglect of the defendants ; and if so. then the defendants were liable. The evidence, un- contradicted, shows that the switch was rightly placed. The lever and target were rightly placed for the express train, and the evidence shows that it had always theretofore worked well, and did, that morning. Only a few minutes before the accident the freight train was, at this place, switched off for the purpose CAYUGA JUNE. 1855. 289 Curtiss v. Rochester and Syracuse Rail Road Company. of allowing this express train to pass down. The switch was changed for this purpose, and, after the freight train had pass- ed off the main track to the side track, it was immediately changed or put back to the main track in order to pass this express train then expected. This shows that the defendants used due and proper care at that point. It is true, Halligan says he did not look to see whether the rails moved when he put back the lever and target in an upright position, which would,, if the rails had moved, have been correct for the main track and for this express train, nor did Connolly see the track itself after the lever and target were put back in an upright position. Halligan had. while then standing there, just moved the lever and target from an upright position (on the main track) to allow the freight train to pass off, which it did by reason of his moving the lever, and then as soon as the train passed on to the side track, immediately changed back the lever and target to an upright position, and locked it up, which made it correct for the main track and the express train. Connolly saw all this done by Halligan. Having done that, which had been uniformly and usually done to allow similar trains of cars to pass that point in safety, (for the train was going at its usual speed,) it is humbly submitted that " due and proper care" was exercised by the defendants. They had done all that very careful men do in such cases. They trusted to the law of mechanics. The lever was constructed upon mechanical principles, and had been uniformly obedient to the law of those principles. It had theretofore performed its office. Human care and foresight cannot change the action of those principles. The law which controls the action of a lever is uniform and not subject to any exceptions. If the defendants had neglected to take any steps to change the lever or target to its correct position for this train, or had left the same unattended for any length of time, or not fastened, it might be regarded, possibly, as negligence on the part of the defendants. But neither of those circum- stances exist in this case. Human care and foresight are to be used in a relative sense. Every accident furnishes some new experience even to the most prudent men, and they are thereby VOL. XX. 37 2he relator, or to appoint the defendant. Both the commission ;o the defendant and the general order accompanying it were null and void. A peremptory mandamus is awarded, but without costs. [SUFFOLK SPECIAL TERM, August 6, 1855. 5?. B. Strong, Justice.] RATHBONE vs. McCoNNELL and LANE. A claim of possession is not a claim of title to land. In its most comprehensive sense, the term title embraces the possession, but not in the sense in which it is used in the section of the code giving costs to the plaintiff in actions for the recovery of real property, or where a claim of title to real property arises on the pleadings, or conies in question. As there used it is nothing less than an assertion of a right of possession. In au action to recover damages for the diversion of water from land, of which the plaintiff alleges he is the owner and in the possession, the act done being above his land and the injury consequential, it is not necessary for the plain- tiff to prove, in regard to his right or interest, any thing further than that he .was in possession of the premises at the time of the injury. The party in possession is the proper person to bring such an action. The owner, if not in possession, cannot maintain an action, except for an injury to his reversionary interest, and under a complaint presenting such a case. A parol license to divert water from a water course, so as to prevent it from passing over another's land, is valid. Where the object of an action was to recover damages, sustained in conse- quence of an act done by the defendants above the plaintiff's land, by which the water of a water-course, passing over such land, was diverted and the plaintiff deprived of the use of it, the defendants alleged as a defense, that the act was done with the leave, license and permission of the plaintiff, it was held, that the answer was to be viewed as setting up a mere license, and that under this issue the title to the land did not come in question, so as to entitle the plaintiff to costs under the 304th section of the code. APPEAL by the defendants from an order made at a sp^ial term, reversing and setting aside a decision of the clerk of Steuben county, refusing costs'to the plaintiff and allowing costs to the defendants. The order appealed from further directed that the plaintiff be allowed his costs in the action, and that the same 312 CASES IN THE SUPREME COURT. Bathbone v. McConnell. be adjusted by the clerk, on application, and inserted in the judg ment in the usual manner, as provided by statute. The complaint was as follows : " Isaac Rathbone, the plaintiff in this action, complains of Aaron McConnell and Ira Lane, the defendants here- in, and says that he the said plaintiff, for a long time past, has been and still is the owner and in the possession of certain lands and premises, with the appurtenances, in the town of Howard, in the county of Steuben, and used by him for farming and ag- ricultural purposes, and for the pasturing, raising and keeping of cows, cattle and horses, and was at the time of the committing of the wrongs and injuries hereinafter mentioned, entitled to have and enjoy the benefit and advantage of the water of a certain stream or water-course for the irrigating of the said lands and premises, and improvement of the soil thereof, for the supplying of his cows, cattle and horses with water, and for agricultural purposes, which, until the diversion thereof as hereinafter mentioned, had run and flowed, and still of right ought to run and flow, upon and across the said lands and prem- ises. That the said defendants, on or about the first day of March, 1853, and on divers days and times between that day and the commencement of this action, in the town of Howard aforesaid, wrongfully and unjustly cut, dug and made, and caused to be cut, dug and made, divers sluices, trenches and channels in and out of the sides and banks of the said stream or water-course, and laid pipes or pump-logs in said stream or water-course, above the said lands and premises of the said plaintiff, and ever since has kept and continued, or caused to be kept and continued, the said sluices, trenches and channels and the said pipes and pump-logs, and thereby during all the time aforesaid, unlawfully and wrongfully diverted and turned the water of the said stream or water-course away from the said lands and premises of the said plaintiff, and stopped and pre- vented and hindered the water of the said stream or water- course from running and flowing along its usual course upon and over the said lands and premises as the same of right ought to have done, and otherwise would have done, and deprived the said plaintiff of the use, benefit and advantage of the said wa- MONROE SEPTEMBER, 1855. 313 Rathbone v. McConnell. ter for the purpose of irrigating his said lands and premises, the improvement of the soil thereof, and for the watering of his cows, horses and cattle, and for all agricultural, farming and domestic purposes, and by reason thereof the water of the said stream or water-course sufficient for the supplying the said plaintiff Avith water for the purposes aforesaid, during all or any part of the time aforesaid, could not nor did not flow upon and across the said lands and premises as the same of right ought to have done and otherwise would have done ; and the said plaintiff thereby, for want of sufficient water could not, during the time aforesaid, use and enjoy his said lauds and premises or follow or exercise his said business of farming, and of raising, pasturing and keeping of cattle, horses and cows in so large, extensive arid beneficial a manner as he might and other- wise would have done, but was thereby deprived of the full and ample use and enjoyment of his said lands, and of all the benefits, profits, gains and advantages which he otherwise might and would have made and derived from the cultivation thereof, and by carrying on his said business thereon. And the said plaintiff says that by reason of the premises aforesaid he has suffered and sustained damage to the amount of one thousand dollars, for which sum, together with costs, he demands judg- ment against the said defendants." The defendants, by their answer, denied all the allegations in the complaint. And for a further answer to so much of the complaint as related to the plaintiff's being the owner and in the possession and occupation of the premises mentioned in the complaint, and of the use made by him of the same, and whether he was entitled to have and enjoy the benefit and ad- vantage of the water of a certain stream or water-course for the irrigating of the said lands and premises and other pur- poses as was alleged in the said complaint, the defendants averred that they did not know and had not any knowledge or information thereof sufficient to form a belief. And for a further answer to the complaint the defendants denied that they, "on or about the first day of March, 1853, or at any other time, in the town of Howard aforesaid, unlawfully or VOL. XX. 40 3 ] 4 CASES IN THE SUPREME COURT. Rathbone v. McConnell. wrongfully diverted and turned the water of the said stream or water-course away from the lands and premises of the said plaintiff, or stopped, prevented or hindered the water of the said stream or water-course from running and flowing along its usual course upon and over the said lands and premises as the same of right ought to have done. And said defendants deny, and each of them denies, that they deprived the said plaintiff of the use, benefit or advantage of the said water for the pur- pose of irrigating his lands and premises, or for any other improvements or purpose whatever. And for a further answer to the said complaint, these defendants say, that in the year 1853, they, with other citizens of the village of Howard in the county of Steuben, at the request and solicitation, and with the leave, license, permission and consent of the said plaintiff, first made, given and granted, made and constructed an aqueduct to convey and by means of which they did conduct and convey the water of a certain spring to the said village of Howard for the pur- pose of supplying the inhabitants of the said village with water, which is the unlawful and wrongful diversion and turning of the water of the said stream or water-course away from the lands and premises of the said plaintiff, alleged in the said complaint." E. How ell : for the appellants. TF. Barnes, for the respondent. By the Court, T. 11. iS'fitoNG, J. The plaintiff alleges in his complaint that he "for a long time past has been, and still is, the owner and in ilie possession" of the lands and premises; and the defendants in their answer put the allegation in issue, by denying it generally, and also by averring that they "have not any knowledge or information thereof sufficient to form a belief." In order to determine whether a "claim of title to real property arises on the pleadings" thus far given, within the meaning of section 304 of the code, it is important to con- eider what was necessary to be proved on the part of the plain MONROE SEPTEMBER, 1855. 315 Rathbone v. McConnell. fciff upon the issue, in order to maintain the action. The action, under the former system of pleading, would be termed an ac- tion on the case, and the injury complained of. a nuisance. The act done, by which the water-course was diverted, was done above the plaintiff's land, and the injury to the plaintiff was consequential. (Crabb's Real Prop. 430, 433.) It was ob- viously not necessary for the plaintiff to prove, in regard to his right or interest, any thing further than that he was in posses- sion of the premises at the time of the injury. In 1 Chilly's PI. 330, (Phil. ed. o/"1828,) it is stated, in regard to injuries to real property, corporeal or incorporeal, that it is now fully settled, that in a personal action against a wrongdoer, for the recovery of damages, and not the land itself, it is sufficient to state in the declaration, that the plaintiff, at the time the in- jury was committed, was possessed of the premises. (See also CrabVs Real Prop. 409, 410.) The precedents only allege possession. (2 Chilly's PL 788, 769.) And it is not necessary to prove more than need be alleged. It is equally clear, I, think, that proof of possession was necessary, and that without it the action could not be supported. The party in possession was the proper person to bring the action. The owner, if not in possession, could not maintain an action, except for an injury to his reversionary interest, and under a complaint presenting such a case. (Or abb's Real Prop. 433, 443. Arch. N. P. 409, 410.) Chitty says. " when a reversioner sues for an injury to land, &c., in possession of his tenant, his interest must be described accordingly." (1 Chitty's PI. 330.) And such is <"he precedent of a declaration in such a case. (2 id. 778.) It must be expressly alleged that the reversion has been preju- diced. (Id. in notes.} As the complaint in this case is framed, the injury to the possession is the gist of the action. The alle- gation of ownership does not at all enlarge the issue to be tried. An issue upon the ownership alone, aside from the question of possession, would be immaterial. The issue formed is practically and substantially a claim of possession on one side, denied on the other. Undoubtedly upon the issue made, evidence of title, in connection with the fact that the premises were unoccupied, if 3 1 6 CASES IN THE SUPREME COURT. Ratlibone v. McConnell. such was the case, was competent for the plaintiff, with JL view to prove a constructive possession, which would have been suffi- cient. But such evidence would have been equally admissible if possessiou only had been alleged. Had it appeared on the trial that the premises were vacant, and the plaintiff had given evidence of title, to prove a constructive possession, the case would have been one of a claim of title arising on the trial ; but it will not be assumed upon the pleadings, in the place of an allegation of possession, that the premises were vacant, and that proof of title was necessary. It will be intended by the allega- tion of possession, that the plaintiff was in actual possession. A claim of possession is not a claim of title. In its most com- prehensive sense, the term title embraces the possession, but not in the sense in which it is used in the provision under con- sideration. As there used it is nothing less than an assertion of a right of possession. (Brown v. Majors, 1 Wend. 495. Ehle v. Qnackenboss, 6 Hill, 587.) If under the liberal system of pleading of the code, the plain- tiff might, under this complaint, recover as a reversioner for an injury to his reversionary interest, he will not, at least, looking at the pleadings alone, be regarded as making any such claim. It is further alleged in the complaint, that the plaintiff was " entitled to have and enjoy the benefits and advantages of the water " of the stream or water-course across his land ; and this allegation is denied in the answer. This right is not averred, in terms, to be an incident to the land, but upon the case, as stated in the complaint, it is prima facie an appurtenant to the nremises. It would be supported by proof of possession alone. And if the issue is broad enough to admit evidence of a right independent of the land, derived from an agreement or license, I think it must not be understood from the complaint alone, that such a right was intended to be averred. The plaintiff will be regarded as intending to claim the use of the water as an appurtenance. In this view the right is involved in the issue as to the possession. And no claim of title to real property arises on the pleadings relating to it, for the reason already stated, that a claim of possession is not a claim of title. MONROE SEPTEMBER, 1855. 317 Ratbbone v. McConnell. The defendants, in the answer, in addition to denying the complaint, set up as an affirmative defense, that they, with others, "at the request and solicitation, and with the leave, license, permission and consent of the plaintiif, first made, giv- en and granted, made and constructed an aqueduct to convey, and by means of which they did conduct and convey, the wa- ter" to a village named, for the purpose of supplying the inhab- itants Avith water. This defense must be deemed controverted under section 168 of the code. It was held by the learned jus- tice at special term, that this issue raises a question of title to real property, for the reason that the defendants set up a per- manent right derived by deed from the plaintiff to the water of this water-course, which right was part of the plaintiff's free- hold. If this is a correct construction of the answer, the con- clusion drawn from it is right ; but is this a fair and just construction ? The object of the action is to recover damages sustained in consequence of an act done by the defendants above and off the plaintiff's land, by which the water of u water-course, passing over the plaintiff's land has been diverted, and the plaintiff has been deprived of the use of it. It is set up in defense that the act was done at the request and solicitation, and with the leave, license, permission and consent of the plain- tiff, first made, given and granted. This permission is expressly designated by the defendants as a license, and the answer is in the ordinary form of a plea and answer of license. (3 Chilly's PL 1106.) The words, "given and granted," do not enlarge the answer; it is the "leave, license, permission and consent," and nothing more, that were granted. If the matter of the de- fense is available as a license, the defendants having named and presented it as such, that should be regarded as its scope and operation. That it is valid as a license is, I think, well settled by authority. In Pierreponl v. Barnard, in the court of appeals of this state, (2 Selden, 279,) it was held, that a parol license by the owner of land to cut and carry away standing timber, fully executed before revocation, was a com- plete protection for what was done under it. The principle of that case is directly in point. The trees were as much a 318 CASES IN THE SUPREME COURT. Rathbone v. McConnell. part of the freehold as the right to the use of the water (Green v. Armstrong. 1 Denio, 550.) The diversion of the latter might be justified under a license, as well as the cutting of the former. Liggins v. Inge, (7 Bingham, G82 ; 20 Eng. Com. L. Rep. 287,) also goes directly in support of the validity of the license. It was an action on the case for wrongfully con- tinuing the diversion of water from the plaintiff's mill, and the facts and question to be decided, as briefly stated in the opinion of Tindall, Ch. J.. were these: "It appeared in evidence be- fore the arbitrator, that the bank of the river which had been cut down, was the soil of the defendants ; and that the same had been cut down and lowered, and the weir erected, and the water thereby diverted by them, the defendants, and at their ex- pense, in the year 1822, under a parol license to them given for that purpose by the plaintiff's father, the then owner of the mill ; and that in the year 1827 the plaintiff's father repre- sented to the defendants that the lowering and cutting down the banks was injurious to him in the enjoyment of his mill, and had called upon them to restore the land to its former state and condition ; with which requisition the defendants had refused to comply. The question therefore is, whether such non-compliance, and the keeping of the weir in the same state after, and notwithstanding the countermand of the license, is such a wrong done on the part of the defendants as to make them liable in this action." After stating the argu- ment on the part of the plaintiff, and some remarks in refer- ence to it, the chief justice observes : " But we think the operation and effect of the license, after it has been completely executed by the defendants, is sufficient, without holding it to convey any interest in the water, to relieve them from the burthen of restoring to its former state what has been done under the license, although such license is countermanded, and consequently that they are not liable as wrongdoers for persist- ing in such refusal." The views of the court are given by the chief justice at considerable length, and it is also held, that the license, after it was executed, was not countermand- able. That was much further than it is necessary to go in this MONROE SEPTEMBER, 1855 319 Bathbone v. McConnell. 3ase. That case is referred to with approbation in Smith v. The Birmingham and Staffordshire Gas Light Co. (1 Add. cj- El. 526 ; 28 Eng. Com, Law. Rep. 140 ;) and in Wood v. Mauley, (11 Add. <^ El. 34 ; 39 Eng. Com. L. Rep. 19.) The case of Otis v. Hall, (3 John. 450,) decides that such a license is valid, and also that setting it up does not raise a question of title. The action was a special action on the case, for overflowing the plaintiff's land, by means of a mill-dam erected by the defendant on his own land. On the trial the de- fendant proved that he had permission to erect the darn, and over- flow the plaintiff's land if necessary for the use of the mill. On a motion by the plaintiff for full costs, under a statute then ex- isting, on the ground that the title to lands came in question, the court, after stating the question, and expressing the opin- ion that the freehold or title did not come in question, within the purview of the statute, say : " The case bears no anal- ogy to that of Heaton v. Ferris, (1 John. 146.) Here was no claim of a right of entry into the plaintiff's land, nor of any direct use or enjoyment of it. The defendant merely sets up a right to use his own land in the manner he has done, by erecting the dam ; that any consequential injury to the plain- tiff was waived by his express license for that purpose ; and that it was a mere damnum absque injuria, for which the plaintiff had no right of action. The statute only applies t6 cases where a claim or question to the direct use by entry on another's land comes in controversy. This and many other cases of consequential injuries as for nuisances erected on the defendant's own land, do not in any manner bring the title in question. Nor does the setting up a leave or license by the plaintiff raise a question as to the title, or give any right or interest in the plaintiff's land." If a license to flow land with water is valid, it would seem that a license justifying the al- leged wrongful diversion of water from it must be, at least until revoked. The case of Chandler v. Duane, (10 Wend. 563,) was a motion for costs to the defendants, and similar to that last cited. Sutherland, J., says, "the action and the ground of iefense, and all the circumstances in the case, were precisely 320 CASES IN THE SUPREME COURT. Rathbone v. McConnell. the same as in this," and the same principle was applied. (*S'ee also Clinton v. McKenzie, 5 iStrobhart, 36.) Viewing the portion of the answer in justification of the act complained of in the complaint, as setting up a mere license, it is very plain that no question of title was raised by putting the same in issue. (Mumford v. Whitney, 15 Wend. 380. Wickham v. Seely, 18 id. 649.) The case of Powell v. Rust, (8 Barb. 567,) is entirely un- like the present. The decision in that case, that a claim of title arose on the pleadings, was placed upon the ground that Rust claimed, by virtue of an agreement with the plaintiff, the property in, and the right to enter with teams and take away certain growing trees and shrubs, which were part of the land. Here, no transfer to the defendant of a right to the use of the water is asserted, but only a permission to do an act by which the diversion of the water was effected. If the license may not be revoked, it is not because it conferred any interest in the use of the water upon the defendant, but because it operated as a yielding up and relinquishment of the water di- verted. (Liggins v. Inge, above cited.) Mumford v. Whitney, above referred to, is the case of a claim by the defendant to a permanent interest in the plain- tiff's land. Davis v. Townsend, (10 Barb. 333,) contains only the same doctrine. For the foregoing reasons, I am of opinion that no claim of title to real property arises on the pleadings in this case ; hence the decision at special term should be reversed. [MONROE GENERAL TERM, September 3, 1855. SeUen, ,'ohnson and T. R Stronq Justices.] MONROE SEPTEMBER, 1855. 321 THE TRUSTEES OF THE THEOLOGICAL SEMINARY OF AUBURN vs. ALMERON H. COLE adm'r &c. of Chloe Hyde, deceased. Where there is a bequest of the whole residue of the testator's estate, after pay- ment of debts and legacies to one person for life, limited as to part, upon a contingency, to the use thereof for life, with a valid gift over of that part, upon the happening of the contingency, and as to the rest, absolute of the entire estate, as to the part of the estate to which the contingency relates, the income only can be paid to the residuary legatee ; but as to that portion of tho estate respecting which the bequest is absolute, the principal must be paid. Tho gift over does not attach to" the entire residuary estate, so as to render tho whole a security for its payment, but the executor may, as to the legatee, set apart a principal sum sufficient to discharge the gift, and proceed to satisfy the other legacies. And the residuary, or any other legatee, who has been paid his legacy, will not, in case of a subsequent deficiency of assets to pay the gift, from the waste of the executor, be obliged, for that reason, to refund any part of what he has received. The residuary legatee is not entitled, before the happening of the contingency, to demand of the executor, on account of the legacy to him, any thing further than the balance of such legacy, after deducting a sum sufficient to pay the contingent gift when it shall become payable. The administrator of the residuary legatee is not liable to the contingent legatee; for the payment of the contingent gift, after the contingency has occurred, without at least an allegation, and proof, that -his intestate, or himself, has re- ceived more than the intestate was entitled to receive, and of such other circumstances as would clothe him with the character of a trustee for the plaintiff as to the excess. ACTION to recover the two last installments, of $2500 each, of a legacy of $10,000, claimed to have been given by David Hyde, of Auburn, to the plaintiffs, by his will executed April 10, 1824, and which took effect by his death on the 12th day of April in the same year. He left real estate of the value of $12,000, and personal of the value of $20,000. The clause of the will under which the claim was made, and which was pre- ceded by certain specific bequests, was as follows : " I give, devise and bequeath all the rest and residue of my estate, both real and personal, which shall remain after payment of my debts, funeral charges and legacies above mentioned, unto my daughter, Chloe Hyde, her heirs and assigns forever ; and if she should die without lawful issue, then I give and bequeath VOL. XX. 41 322 CASES IN THE SUPREME COURT. Trustees of Theological Seminary of Auburn v. Cole. . unto the Theological Seminary, of Auburn, in the state of New York, the sum of ten thousand dollars for the purpose of endow- ing a professorship in said seminary, to be paid to the said trus- tees in four equal annual payments, after the death of the said Chloe. I give the custody, tuition and guardianship of the person of my said daughter Chloe to my brother-in-law, Daniel Kellogg, Esq. until she shall attain the age of twenty-one years ; and all or such part of my said estate as he shall deem neces- sary shall be applied for her maintenance, education and sup- port." Daniel Kellogg was named as executor^ with power to sell the real estate, and received letters testamentary in May, 1824. Chloe Hyde, the only daughter of the testator, became 21 years of age August 16th, 1837, and died on the 21st May, 1850, intestate and without issue, and the defendant, in July, 1851, received letters testamentary upon her estate. The ex- ecutor paid her expenses during his life, and for some part of the time she resided in his family. He sold most of the real estate during his life, and the proceeds were received in part by him, and the residue by the executors of his will. He did not keep the assets of the estate separate from his private estate, but kept an account of his receipts and payments, making himself debtor for all the receipts, and crediting himself with all payments. Daniel Kellogg died May 4, 1836, and at his death all the assets of the estate of David Hyde, except what he had expended in the settlement of the estate, the payment of legacies, and the main- tenance and education of Chloe Hyde, "remained absorbed in his estate, and passed as such into the hands of the executors of his will." Chloe Hyde never received into her possession, or exercised any actual control over, any part of the assets, beyond the sum required for her support, until August 1,1849, when the executors of the will of Daniel Kellogg paid to her, by the conveyance of real estate, f>47 ; 000 ; and they subsequently paid her small sums for her support, until her death. She did not receive, during her life, so much in the aggregate as was due to her for the interest and income of the estate. On the 1st of January, 1852, the defendant entered into a written agreement with the executors of the will of Daniel Kellogg, by A10X ROE SEPTEMBER, 1855. 323 Trustees of Theological Seminary of Auburn v. Cole which the sum due to him as administrator, from said executors, was fixed at $50,000 ; on account of which they then paid him in bonds and mortgages $31.775.27, and on the 1st of July, 1853, in lands, $12,000, and the balance remains unpaid. The jury found a special verdict containing the above and other facts ; upon which the justice who tried the cause, ordered a judgment for the plaintiffs, for the amount claimed, with in- terest. For further facts see the same case, when formerly be- fore the court, 18 Barb. 360. John Porter, for the plaintiffs. I. The legacy given by Da- vid Hyde's will to the plaintiffs, is good and valid in law as an executory bequest. The provision in the will specifying the times of payment, is conclusive to show that the testator did not, by the expression, " dying without lawful issue," intend any other than issue living at the death of Chloe Hyde. (4 Kent's Com. 282. Hill v. HUl, 4 Barb. 419. Jackson v. Stoats, 11 John. 337. Fosdick v. Cornell, 1 id. 440. Mo/at v. Strong, HO id. 12.) II. The bequest to Chloe of all the rest and residue of his real and personal estate, did riot, so far as the amount of the legacy in question is concerned, give her an absolute property in the same, nor a right to dispose of the same in her lifetime. She only took a conditional interest therein, depending on the event of her leaving issue at her death, to determine whether it was absolute or not. (Jackson v. Bull, 10 John. 19. Hill v. HiU, 4 Barb. 419. Helmer v. Shoemaker, 22 Wend. 138. Lott v. Wyckoff, 1 Barb. 572, 576. 2 Kenfs Com. 270.) III. The guardian of Chloe had the power to apply to her maintenance, education and support, only so much of the estate as he should deem necessary for that purpose ; this did not give him the absolute control over all the remainder devised and be- queathed to Chloe by the will. It is only when absolute own- ership, and right of disposal of property, is given by the will, that the limitation over is held to be void, as inconsistent with the executory devise. (The Attorney Gen. v. Hall, Fitzg. 314. Ide v. Idc, 5 Tyng, 500. Jackson v. Bull, 10 John. 19, 324 CASES IN THE SUPREME COURT. Trustees of Theological Seminary of Auburn v. Cole. Livingston v. Delancy, 13 id. 537. Jackson v. Robins. 15 id. 169.) Again, the power of disposal of any portion was given to the guardian, and not to Chloe. the cestui que trust. And it was given for a particular, defined and limited object, and to be lim- ited to the necessity of the case. To contend that the guardian, under this clause, had the absolute power of disposal of the whole property, would be a manifest violation of the intention of the testator, as evinced by the whole will. IV. Daniel Kellogg, the testamentary guardian of Chloe, though spoken of in the will as only guardian of her person, be- came, as such, guardian of her estate also ; and it became his duty, imposed by statute, to take the management of her estate as such guardian. (2 R. S. 150, 1, 2, 3.) Kellogg, being both executor and guardian, the law will presume, after a rea- sonable time has passed for settling all claims against the estate, that he held the funds in his hands as the guardian of Chloe (Karr v. Karr, 6 Dana, 3.) V. When Chloe became 21 years of age, she was not only en- titled to the whole fund and its increase, except such parts thereof as had been paid out according to the directions of the will ; but she had the legal possession of it the actual posses- sion of the executors of Kellogg was her possession. If the fund existed in the shape of securities for money, they held them for her use ; if in the shape of a debt due from the estate of Kellogg, the legal possession was in her. VI. There is no foundation for the claim set up in the answer, that the legacy given to the plaintiifs was payable, if at all, out of the specific, original fund left by the testator at his decease, to be found either in the will or in law. After Chloe became of age. she held the whole fund, with its increase, in her own right, subject however, in the contingency that has occurred, to pay from her estate the plaintiff 's legacy. It was a contingent trust in her. VII. The defendant, as administrator, became entitled to all the personal property of Chloe, in whatever shape it existed, in money, stock, securities for money, debts, or in any other way ; and his responsibility to answer for any claims against the es- MONROE SEPTEMBER, 1855. 325 Trusti es of Theological Seminary of Auburn v. Cole. tate of Chloe can never be discharged, while any assets remain that may become available. (2 R. S. 82, 6. Wooden v. Bag- hy, 13 Wend. 456. Beecher v. Grouse, 19 id. 306. Jenkins v. Freyer, 4 Paige, 47.) VIII. The plaintiffs are authorized to receive and hold the legacy in question by their act of incorporation, and the laws of the state. (Sess. Laws of 1820, p. 197 ; of 1840, p. 267 ; of 1841, p. 245. Yates v. Yates, 9 Barb. 324. /m- v. Run- die, 15 id. 139.) H. R. Selden, for the defendant. I. Chloe Hyde, under the will of her father, took an estate in fee in the lands, and an absolute estate in the personal property. The gift over, of $10,000. to the plaintiffs, is therefore void. 1. The governing principle in the construction of a will, as of every other instrument, is, that the intention of the maker is to be ascertained, and effect given to it so far as is consistent with the rules of law. 2. If that intention, when ascertained, is unlawful, it is as much the duty of courts to defeat it, as it is to effectuate it when lawful. (11 Wend. 294, 299, 301. 1 Satidf. Ch. 274.) 3. It was the intention of the testator here to give to his daughter Chloe, an estate in fee in his lands, and a like absolute estate in his personal property, subject to be defeate'd on her death, as to $10.000 (if so much remained unexpended by her,) in case she died without issue living at her decease ; the $10,000 to be in that event paid to the plaintiff. To determine the question of intention, I insist : (1.) That the will in the clearest terms dis- poses of the testator's entire estate, real and personal, and shows that it was not his intention to die intestate with regard to any part of it. The expression "all the rest and residue of iny estate, both 'real and personal," without the added words, of inheritance, would have given to the devisee an estate in fee. (6 John. 191, and cases cited in notes c and d : 16 id. 555, Jones find Van Bur en, arguendo ; Id. 587, Kent, Chancellor ; 11 id. 374, Yates, J. ; 1 T. R. 411.) But the testator, to re- move all possible doubt, not only gave to Chloe " the rest and res- idue of all his estate," but gave it to her, "her heirs and assigns 326 CASES IN THE SUPREME COURT. Trustees of Theological Seminary of Auburn v. Cole. forever." (2.) The plaintiff's construction must reduce the interest of the devisee in the lands, contrary to the express terms of the will, from a fee to a life estate, and her interest in the personal estate to a life use of it only, and would make the testator die intestate as to the remainder of his estate, after the termination of the life interest, and the payment of the plaintiff's legacy. (3.) Not only is the entire estate given to Chloe and her heirs, but the express power of disposition of it is given to her, by the most appropriate and comprehensive of legal terms, for that purpose, viz : to " her heirs and assigns forever." (4.) If only a life interest was given to the daugh- ter, there was at least a possibility that the income might not be sufficient for her education and support, and that possibility was in the mind of the testator when he gave to her guardian power to apply "all or any part" of the capital of the estate to that object. That guardianship could only continue till she arrived at the age of 21. Did the testator, intend that after arriving at maturity, his daughter should have no power over the body of the estate which he left to provide for her wants, should it be necessary? Could she appropriate no part of it, in case of marriage ? Such a construction as is claimed by the plaintiff would both contradict the letter of the gift to her, and do violence to the whole spirit of the will. (5.) I infer from the case already decided upon this will that the plaintiff's coun- sel and the court assume that Chloe Hyde took an absolute estate in all which was given to her, except the $10,000 claim- ed by the plaintiff; and as to that, that she took " only the use, unless she should have issue living at her death, and that if she should not have such issue, the same should go to the plaintiffs." (18 Barb. 375. 383, point 4, 384-5.) I think there can be no distinction in her claim to the different parts, at least, of the personal estate. If the plaintiffs' claim is valid, it extended. as against her. to every part of that estate, reducing her right in the whole to the mere use of it for her life, the title being in the executor, in trust for the plaintiffs, to the extent of $10,000, and for the next of kin, not of Chloe Hyde, but of David Hyde, as to the surplus, if any. (Jeremy's Eq. Jur MONROE SEPTEMBER, 1855. 32? Trustees of Theological Seminary of Auburn v. Cole. 104. 1 P. Wms. 550, and note I. 2 Story's Eq. Juris, k 1067. 1 id. 540, 596. 606, note 1.) This result is in con- flict with the letter, and the whole scope and spirit of the will, For these reasons, it is insisted that the testator intended what he said when he gave the entire residue of his estate, not before disposed of, to his " daughter, Chloe Hyde, her heirs and assigns forever" 4. An absolute disposition having been previously made by the will of the whole property, the gift over to the plaintiffs on the death of Chloe Hyde without issue was void. (1.) The legacy was never charged on the real estate, and the plaintiffs could never reach that or its proceeds, whether their legacy was valid -or not. (Lupton v. Lnpton, 2 John, Ch. 614, 623. Swift v. Edson, 5 Conn. R. 531, 536. Gridley v. Andrews, 8 id. 15. 2 Story's Eq, Jur. 1247, note 2, p. 703, Qth ed.) The power of sale given to the ex- ecutor, does not (until exerted) affect the title, nor work a equitable conversion of the real into personal estate. It re quires a positive direction to produce that result. {Leigh 344 CASES IN THE SUPREME COUET. Elton v. Markham. plaint, possessed as of his own property, of the watch, was not warrar ted by the code. 4. That a denial of all fraudulent intent on the part of of the defendant, " or any unlawful conversion of said watch to his own use," formed no material issue in respect to the intent ; and that the denial of any unlawful conversion was not intended to controvert that the defendant actually converted and disposed of the property to his own use, but simply the unlawfulness of what he did. 6. That an averment, in the answer, of a sale and delivery of the watch to the defendant was not inconsistent with the allegation in the complaint, of a bail- ment, and therefore a denial of it; it not appearing, on the face of the plead- ings, that the sale was not subsequent to the bailment. A denial, in an answer, must be general or specific, or it must, be of any knowledge or information, &c., sufficient to form a belief. A PPEAL, by the plaintiff, from a judgment entered at a JLA. special term of the court, after a trial at the circuit. The complaint was as follows : " Nathaniel Elton, the plaintiff in this action, complains of Thomas Markham, the defendant, for that the said plaintiff on or about the 31st day of May, 1851, was lawfully possessed as of his own property, of one large gold English lever watch, of the value of one hundred and twenty-five dollars, and that the said plaintiff, on or about the time above stated, in the town of Perinton, county of Monroe, did lend said watch, without' any consideration therefor, to the defendant in this action, for the space of four days, with the promise on the part of the defendant, that within that time said watch should be returned to the plaintiff, its rightful owner, and that the de- fendant well knew that said watch was the property of and belonged to the plaintiff, but fraudulently intending to defraud and deceive the said plaintiff, has not delivered said watch to the plaintiff, although often requested so to do, but has con verted and disposed of said property to his own use, to the dam age of the plaintiff of one hundred and fifty dollars : where- fore the above named plaintiff demands judgment against the above named defendant for the sum of one hundred and fifty dollars, besides costs." The defendant put in the following answer : *' Tlie defend- ant for answer to the complaint of the plaintiff, says that he is not informed and cannot state whether the plaintiff, on or about the 31st day of May. 1851, was possessed as of his own prop MONROE SEPTEMBER, 1855. 345 Elton v. Markham. erty of one large gold English watch. And the defendant fur- ther answering specifically denies that the plaintiff, on or about the 31st day of May, 1851, did leave such watch as aforesaid, with the defendant in this action for any period, with the prom- ise of this defendant to return the same to the plaintiff. And the defendant denies all fraudulent intent on his part toward the plaintiff, or any unlawful conversion of said watch to his own use. The defendant further answering, says that the plaintiff, on or about the 31st day of May. 1851, at the place in said complaint mentioned, for a full consideration, agreed to be paid by the defendant 'to the plaintiff, sold and delivered the said watch to the defendant." The plaintiff replied, denying that on or about the 31st day of May, 1851, or at any other time, for a full consideration, or for any consideration, agreed to be paid by the defendant, the plain- tiff sold the watch mentioned, to the defendant ; but that the defendant wrongfully and unlawfully converted the same, while it was the property of the plaintiff. On the trial, at the Onta- rio circuit, before Justice Taylor and a jury, the plaintiff gave no evidence, but relied upon the pleadings to recover, claiming that no material allegation of the complaint was denied by the answer, so as to require proof from the plaintiff to entitle him to recover, &c., and requested the court so to hold. The court refused, and held that each allegation was sufficiently de- nied to require proof of the same, by the plaintiff; to which ruling the plaintiff by his counsel excepted. The jury found a verdict for the defendant ; and a motion, having been made, at a special term, for a new trial, upon excep- tions, the same was denied. S. F. R. Mallory, for the plaintiff. J. C. Smith, for the defendant. By the Court, T. R, STRONG. J. It was insisted on the part of the plaintiff at the trial, that none of the material allegations in the complaint were controverted by the answer VOL. XX. 44 346 CASES IN THE SUPREME COURT. Elton v. Markham. and that all of them must, therefore, under section 163 of the code, for the purposes of the action, be taken as tme ; hence that upon the complaint and answer the plaintiff was entitled to a verdict ; and the justice was requested by the plaintiff's counsel so to decide. The justice refused thus to decide ; but on the contrary decided, that said allegations were, and that each of them was sufficiently denied to put the plaintiff to the proof thereof, and that without proof of the said allegations, and each of them, the plaintiff could not recover. An excep- tion was taken on the part of the plaintiff, to the refusal of the justice " to decide and hold as requested, and to the decision and ruling of the said justice as above stated." It is manifest, that the refusal to decide, in accordance with the proposition submitted that every thing material in the complaint was ad- mitted, and that the plaintiff was entitled to a verdict is sub- stantially different from the decision thereupon made that each material allegation must be proved, in order to maintain the action. The refusal was correct, if proof of any one of the alle- gations was necessary to entitle the plaintiff to a verdict ; the decision following it was erroneous, unless proof of all that are rnaterral was necessary. But as the exception is single em- bracing both the refusal and the subsequent decision unless both were erroneous, the exception must fail. In Jones v. Os- good, (2 Selden, 233,) it was held that "a general exception to a charge and every part of it, when the charge involves more than a single proposition of law, and is not in all respects erro- neous, presents .no question for review upon appeal." The same doctrine is reiterated in Caldwell v. Murphy ', (1 Kernan, 416 ;) arid it is said in that case, in reference to a similar exception : "This has so often been held insufficient, that no further re- mark respecting it is now necessary." Clearly, upon the same principle, a single exception to a series of decisions, one of which is correct, is unavailing. The complaint is substantially, that the plaintiff, " on or about the 31st day of May, 1851, was lawfully possessed as of his own property, of one large gold English lever watch," stating its value, "and that the said plaintiff, on or about the time ab, ve MONROE SEPTEMBER, 1855. 347 Elton v. Markham. stated, ,fcc., "did lend said watch, without any consideration therefor, to the defendant in this action, for the space of four lays, with the promise, on the part of the defendant, that, with- in that time said watch should be returned to the plaintiff, its rightful owner ;" it is then charged that the defendant knew the watch was the property of the plaintiff, and that with intent to defraud, (fee., he has not delivered it to the plaintiff, although often requested, but has "converted and disposed of it to the defendant's use," to the plaintiff's damage of $150 j and judg- ment is demanded for that sum, with costs. It does not appear by the complaint, that the watch ever came into the possession, or under the control of the defendant, except by the allegation that it was lent to him by the plain- tiff. That allegation is therefore a material one. It was not necessary to make it ; a general allegation that the defendant had the watch in his possession, without stating how he ac- quired it, would have been sufficient to connect the defendant with the property ; but it was hecessary to connect the defend- ant with it in some way, to lay a foundation for the allegation of a refusal to deliver it to the plaintiff on request, and of a conversion ; and the plaintiff having chosen to do it in the mode adopted, and in no other mode, the allegation employed for the purpose is an issuable allegation. The third paragraph of the answer is in these words : "And the defendant further answering, specifically denies that the plaintiff, on or about the 31st day of May, 1851, did leave such watch as aforesaid with the defendant in this action, for any period, with the promise of this defendant to return the samo to the plaintiff." This is bad pleading in form ; it is a negative pregnant ; the denial may be strictly true, and yet only the time stated in that part of the complaint to which it is intend- ed to apply which is wholly immaterial be wrong. But this form of pleading was formerly, when a general demurrer would lie for defects in substance, and a special demurrer was 're- quired for formal defects, only the subject of a special demur- rer ; and unless demurred to specially, it put every thing material to which it applied in issue. ( Gould's PL ch. 6, part 348 CASES IN THE SUPREME COURT. Elton v. Markham. t, 29 to 36. Bac. Ab. tit. Pleas and Pleadings, 6.) Al- though still objectionable, it cannot, I think, be said that it does not controvert the allegation to which it relates, within the meaning of section 168 of the code. It is an informal de- nial, and unless objection is made for defect of form, before the tri*l, it will be waived, and each allegation will be regard- ed as controverted. One mode of objecting to such a defect is, I think, by motion, under section 160 of the code, the last clause of which provides that "when the allegations of a plead- ing are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment.'' Whether that is the only mode, it is not necessary now to decide. Overlooking the defect of form, which has been considered, I think the portion of the answer above given, substantially controverts the allegation in the complaint, of the lending of the watch to the defendant. Webster's definition of the word "lend" is, "1. To grant to another for temporary use, on the express or implied condition that the thing shall be returned, as to lend a book." A "loan for use" is defined by writers on the law of bailment to be "a bailment of goods to be used by the bailee temporarily, or for a certain time, without reward." (Story on Bailment, 6, 219, 220.) Thus understanding the term "lend" in the complaint, the delivery of the watch to the defendant, and his promise to return it, are included in the allegation that the plaintiif lent the watch to the defendant. Tht answer, instead of a literal denial, negativing the allega- tion in the words of it, denies that the plaintiff did leave the watch with the defendant for any period, with his promise to return it. This meets the substance of the allegation, and puts it in issue. The first paragraph in the answer is, that the defendant " is not informed and cannot state," whether the plaintiff was, at the time stated in the complaint, possessed as of his own prop- erty of the watch. The code does not warrant this form of denial. A denial must be general or specific, or it must be MONROE SEPTEMBER, 1855. 349 Elton v. Markham. " of any knowledge or information, &c. sufficient to form a be- lief." The third paragraph denies all fraudulent intent on the part of the defendant, " or any ulawful conversion of said watch to his own use." The denial of the intent forms no material issue ; and the denial of any unlawful conversion was not in- tended to controvert that the defendant actually converted and disposed of the property to his own use, but simply the unlaw- fulness of what he did. This is apparent from the fourth and last paragraph of the answer, which is, that the " plaintiff, on or about the 31st day of May, 1851, &c., sold and delivered the said watch to the defendant." And the whole answer must be regarded in giving a construction to any part of it. Tho answer does not purport to, and does not in fact, set up sepa- rate defenses. The several denials and the new matter are designed to aid and support each other. It is contended on the part of the plaintiff, that the conclu- ding part of the answer, alleging a sale and purchase, is in- consistent with the allegation in the complaint, of a bailment, and therefore a denial of it. If the supposed inconsistency ex- isted, without some further denial, no proof of the bailment would have been requisite on the part of the plaintiff in the first instance ; he would have been entitled to recover, unless the defendant established the new matter of a sale and purchase, brought forward by him in his defense ; the burden of proof as to which was upon him. But the complaint and answer, in the respect alluded to, are not necessarily inconsistent. For ought that appears on the face of the pleadings, the sale was subse- quent to the bailment. There being one material issue formed by the mere denials in the answer, the exception taken must be overruled, and the judgment affirmed. [MONROE GENERAL TERM, September 3, 1855. Selden, Welles and T. R Strong, Justices.] 350 OASES IN THE SUPEEME COURT. FOSTER vs. PETTIBONE. Trespass cannot be maintained by the owner of goods, against a sheriff, for taking them under and pursuant to a writ of replevin against another person having the goods in possession. JOHNSON, J., dissented The law fully recognizes the owner's right, and if he can, without force, obtain the property, will not hold him a wrongdoer for taking it ; but it withhold? from him an affirmative remedy by action against a ministerial officer ; allow- ing him an action only against other persons concerned in, or who instigated, the taking. APPEAL by the plaintiff, from a judgment entered at a spe- cial term, upon the report of a referee. The action was trespass for taking a quantity of flour. The referee nonsuited the plaintiff, on the ground that the defendant having acted in the premises by the command of a writ of replevin, was justified thereby, and was not liable to the plaintiff in this action. The opinion of the court states all the facts that are material. John N. Pomeroy, for the appellant. I. An action of tres- pass can be maintained by the plaintiff against the defendant, for taking the property of the plaintiff upon the writ of replevin, issued in the suit against David S. Baker. It is a general prin- ciple of the law, that the owner of property is protected from intrusions upon it by third persons. He is entitled to its un- molested possession, enjoyment and disposition, and any one un- dertaking to exercise control or dominion over it, whether he be an officer, or other person, acts at his own peril. The law gives the owner of chattels a remedy by action against a trespasser, or he may retake them, peaceably, without process. These are general and elementary principles, and unless the defendant is protected by other rules of law, he must be answerable to the plaintiff for his trespass. We will inquire whether he is thus protected. (1.) The defendant is not protected by the rule that ministerial officers may justify acts done under process regular on its face. This principle is a familiar one. but it does not ap- ply to the case presented in this action. The plaintiff in the replevin suit, and all other persons engaged in the taking, except the sheriff, are confessedly liable in an action of trespass, to the MONROE SEPTEMBER, 1855. 351 Foster v. Petlibone. owner of the goods. (Shipman v. Clark, 4 Denio, 446.) It is o. common principle that the sheriff is liable to the owner of goods taken under execution, regular on its face, issued in an action against a third person, directing the officer to take the chattels of such defendant. There can be no true distinction made between the case of a sheriff taking a stranger's goods tinder an execution and under a, "writ of replevin. This distinc- tion has been raised, and relied on, and is the gist of all reason- ing against the liability of the sheriff. In the case of Shipman v. Clark, (4 Denio, 446,) Bronson, J., very cautiously says, " But in replevin, when the command of the writ is to replevy and deliver certain specified chattels, the process may be a suf- ficient protection to the officer, though he take the chattels from the possession and they be the property of one who is a stranger to the writ/' and cites Hallet v. Byrt, (Carthew, 380.) These cases are all that can be found in the reports upon this point. It is only necessary to say of these opinions that they are en- tirely obiter. Judge Bronson's dictum was only intended to be obiter, and is placed by the reporter under a sernble. The case in Carthew called for no such line of observation as the judge adopted, and he argued entirely upon a hypothetical state of facts. The case involved two questions, (1.) whether the plea gave color, and (2.) whether the custom pleaded was legal, and both were negatived. These cases then have no binding a"utfeor- ity as precedents. But we deny upon general principles, that the distinction they attempted to raise is a sound one. An ex- ecution directs the sheriff to levy upon and sell the goods and chattels which are the property of the defendants. It does not specify any particular goods and chattels, but the force of the writ is the same as though a general inventory should be incor- porated into it, purporting to give a schedule of the goods which were the property of the defendant. The case states that the writ of replevin, "directed the defendant in this action [the sheriff,] to take the said" goods and chattels as the property >f the "said John G. Brown," who was made plaintiff in the re- plevin suit. Now, unlike the writ of execution, which is against all the property generally of a defendant, the writ of replevin 352 CASES IN THE SUPREME COURT. Foster v. Pettibone. limits the sheriff to take particular goods as the prpert^ of the plaintiff in the replevin suit. The goods to be replevin are inventoried or specified, but still have upon them the limita tion of being the property of the plaintiff in the replevin suit, and the sheriff is bound by two restrictions, viz : he must take only the goods pointed out, and those goods must be the prop- erty of the person suing out the writ of replevin. Under an ex- ecution the goods are not specified ; the sheriff has, as it were, a general inventory to choose from, but he is also under the limit- ation of the goods being the property of a particular person, viz : of the defendant in the execution. If a sheriff in executing a writ of execution, seizes goods which are the property of a stranger, he oversteps the limits of his authority, and invades the rights of that third party. If the sheriff, in executing the writ of replevin, seizes either any goods not specified, or any of the goods which are specified, and which are the property of a stranger, he also oversteps the limits of his authority, and in- vades the rights of that third party. It is conceded that the sheriff is liable in the former case, and we are able to see no distinction between the two, to relieve him from liability in the latter. II. The sheriff is not protected by the provisions of the stat- ute directing replevins, if he seizes the property of a stranger to the replevin suit. The referee, in deciding the motion for a nonsuit, relied entirely upon the statute, and it may be well to examine its provisions. The revised statutes, tit. 12, ch. 8. part 3, relate to replevins. The first seven sections regulate the commencement of suit, the 8th directs the sheriff to execute the writ, the 13th to 17th relate to conflicting claims of property. The 13th section provides, that " If the defendant, or any other person, who may be in possession of the goods and chattels spe- cified in the writ, shall claim property therein, or in any part thereof," they may procure a jury to be summoned by the sher- iff, to try the claim. The 14th and 15th sections relate to pro- ceedings before the jury. By the 16th the sheriff is directed to deliver the goods to the plaintiff in the replevin, if the jury shall find that the property is not in the claimant, and by the 17th MONROE SEPTEMBER, 1855. 353 Foster v. Pettibone. the sheriff " shall not deliver the same unless the plaintiff shall indemnify the sheriff," when the jury shall find that the prop- erty is in the claimant. These are all the provisions in regard to conflicting claims. (1.) Under these sections the present plaintiff was not empowered to interfere and claim the property seized by the sheriff. The referee says in his opinion, that " it was clearly competent for the defendant in the replevin, or the plaintiff in this action to have interposed his claim to the prop- erty ;" and " It is difficult to see how he [the sheriff] can be made liable in case where no claim whatever has been inter- posed, where he has no indemnity, and no right to exact any." The error into which the referee fell, was in assuming that the plaintiff could interpose his claim of property. The statute no- where authorizes him to do so. That privilege is given to the defendant in the replevin suit, and to any other person who may be in possession of the chattels specified in the writ. The whole tenor of the statute shows that the possession intended is an actual possession. In this case the owner of the property was neither the defendant in the replevin suit, nor was he in posses- sion of the property, and the statute makes no provision for him. In the case ofStimpson v. Reynolds, (14 Barb. 510,) a case vf ry similar to the present one, Judge Wright, in giving the opinion of the court, says, " It is argued that the plaintiff in this case might have put in a claim of property, or have prosecuted the plaintiff in the writ of replevin, in trespass or trover. But could he have put in a claim under the statute 7 He was neither a defendant in the replevin suit, nor was he in possession of the goods, and these are the only persons that by the statute may interpose the claim/' The code has altered the law in regard to the claims of third persons in replevins, and has largely ex- tended the right to interpose the claim. (Code, 216.) (2.) But if the plaintiff was empowered to interpose his claim to the prop- erty, and to demand a sheriff 's jury to try the title to the prop erty, his neglect to do so does not prevent him from resorting to any other legal remedy. (3.) The sheriff is not bound to exe- cute the writ absolutely, and without remedy or protection. The referee in his opinion assumes and proceeds entirely upon the VOL. XX. 45 354 CASES IX THE SUPREME COURT. Foster v. Pettibone. idea that the sheriff can require no indemnity, and must abso- lutely take possession of the goods as directed by the writ, and that he cannot be liable for acts which the statute directed him to do. without any opportunity of his procuring security for him- self. The sheriff is nowhere bound to seize the goods if he has reason to suppose that they are the property of another. He may in all cases protect himself by calling a sheriff's jury to try the title of property against which process is issued. We esteem this to be a common law right of sheriffs, and at all events it is their practice. But are not sheriffs protected by the bonds they were required to take under the provisions of the revised statutes? Such bonds were executed to the sheriff, with securities to be approved by him, and conditioned that the plaintiff would prosecute the suit to effect without delay, and would return the property, if return thereof was adjudged, and would pay to the defendant such sums of money as should be recovered against him for any cause whatever. It seems to us that the provisions of this bond enure, to the benefit of the sheriff, and that he is protected, or can protect himself under it. This defendant cannot complain that he is bound without any remedy or security to execute this writ, and that? he should not be liable for his trespasses done in obeying the statute, for we have seen that he may protect himself by a jury, and that he always takes a bond, by virtue of which he may indemnify himself for his acts. (4.) If this plaintiff cannot maintain this action he is remediless. That the plaintiff's rights have been invaded, there can be no question, and the law will certainly give him a relief. The plaintiff was not made a party in the original replevin suit, and had no power to appear in it. He had no right under the stat- ute to appear before the sheriff and interfere the goods were not in his possession they were seized in a proceeding to which he was a stranger, and of which he was entirely ignorant, and it is a mockery to say that he cannot claim reparation from the parties doing the wrong. The person suing out the replevin writ may be entirely irresponsible, and if the rule claimed on the part of the defendant be the true one, the plaintiff must lose his property. MONROE SEPTEMBER, 1855. 3,3.5 Foster v. Pettibone. Ill This plaintiff might have peaceably retaken the flout replevied. while in the hands of the sheriff or of the plaintiff to whom the sheriff had delivered it, without process, and he may enforce the same right, if need be, by action. It is, with- out question, true that an action confers no new rights upon a party | it is only a method of enforcing through the means of a court, rights which before existed. And it is also true, as a general rule, that when a party has a right he shall have the power to enforce it. It can hardly, then, be denied, that if the party plaintiff could retake the replevied goods peaceably from the possession of the sheriff, he can also have an action of trespass against the sheriff for taking the same goods. The action does not increase or add to the plaintiff's right to the goods: it is only a means of vindicating or enforcing that right, and the right to the action logically follows the right to the property. If the plaintiff may retake the goods from the sheriff's hands, it is because that officer has no lawful claim upon them, and no power to keep them, and therefore is a trespasser from the be- ginning in taking them, and if a trespasser, then liable to this action for trespass. It would be absurd and self contradictory to allow the right to the plaintiff to retake the goods, and deny him the privilege of bringing an action for the original seizure. Can the owner then retake the property peaceably from the hands of the sheriff without process ? We answer that he can, and for the following reasons : (1.) Upon the general principles of the rights accruing to the ownership of property, when that ownership has been violated. (2.) The objection that the writ of replevin is issued upon proof made, as to the property, and in a quasi judicial proceeding, can have no foundation up*on the general principles of law, for the real owner was not at all a party to this proceeding, and is not, then, in the least concluded or affected by this proceeding, and would not be, even were it a solemn judgment of a court. This is one of the most elemen- tary principles of law. (3.) The statute forbidding counter replevins, which is but declaratory of the common law, is only intended to prevent the defendant in the replevin suit from re- sorting to the same process, when he can have all matters' 356 CASES IN THE SUPREME COURT. Foster v. Pcttibone. adjusted in the original suit, and does not affect the rights ( f third parties, strangers to the suit, who may be owners of the property. (4.) The rights of the sheriff are no more than those of the plaintiff in the replevin suit, and the owner of the goods would have the same claim against the goods in the hands of either. In the case of Spencer v. McGowan, (13 Wend. 25G,) it is decided that the owner of personal property, left in the possession of a third person, may, by his own act, repossess himself of such property, although it be taken from the posses- sion of such third person by virtue of a writ of replevin. This case virtually decides the right of the owner of replevied prop- erty to retake it, in whosever hands it may be, if he can do it peaceably, and if he may do this, his right to an action is clear. IV. The only case in point upon this question, in the Eng- lish or American reports, maintains the rights of this plaintiff against the sheriff in their fullest extent. The cases already cited from Carthew and Denio are all that we have been able to find, after very careful search, with the exception of the case lately decided of Stimpson v. Reynolds, (14 Barb. 506 ) In this case, flour, which was the property of the plaintiff, had been taken by the sheriff under a writ of replevin, issued in a suit in which third parties were plaintiffs, and the warehouse keeper, in which the flour was stored, was defendant. The owner brought trover against the sheriff. A referee decided in favor of the owner, against the sheriff, and the defendant ap- pealed to the general term, Wright, Harris and Parker, Js. Mr. Justice Wright delivered the opinion of the court, affirming the judgment, and he assumed that the case involved just the question presented by this action, and discussed that question, and decided that question. The broad doctrine was laid down that the sheriff was liable in an action by the owner of the property taken under a writ of replevin issued in the suit of a third person. This case controls and governs the decision of the present question, and has no decision opposed to it, and un- less this court expressly overrules it, they must reverse the judgment below, and order a new trial. MONROE SEPTEMBER, 1855. 357 Foster v. Pettibone. Geo. Rathbun, for the respondent. The act for Arhich the defendant was sued in tins case, was : (1.) An official act as sheriff. (2.) It was done in obedience to the positive directions and requirements of the statute. (3.) The law left to the de- fendant no option, or discretion, in any respect. (4.) He Avas compelled by law not Only to do the act complained of. but to do it precisely as he did. He is. therefore, protected by his office and writ, as held by the referee. The non suit Avas right. (S/iipman v. Clark, 4 Denio, 446. Hallet v. Byrt, Cart hew, 380. Savacool v. Boughton, 5 Wend. 170. 2 R. S. 523, 6, c^'c.) The case of Stimpson v. Reynolds, (14 Barb. 506 ; ) was a mere dictum. The case turned upon the point that it was not proved that the sheriff took the identical property de- scribed in the writ. It could not, therefore, protect him. The opinion of Mr. Justice Wright, is his individual opinion, and not the judgment of the court. T. R. STRONG, J. This is an action of trespass, commenced before the code, for the taking by the defendant, of a quantity of flour, the property of the plaintiff. The defendant, at the time of the taking, was sheriff of the county of Cayuga. and took the flour from the possession of one Baker, under and by virtue of a writ of replevin, issued in a suit in favor of one Brown against Baker, .directed to him, and requiring him to take the property. The writ is not set forth in the case, but it is stated that it required the defendant to take the flour, " as the property of the said John G. Brown." I understand from this statement of the writ, not that the command was in those Avords, but that the writ recited, in the ordinary form, a com- plaint by the plaintiff therein, of the taking of his flour, de- scribing it, and then commanded the sheriff, if security should be given &c., to cause the same flour to be replevied. (2 R. /& 523, 6. Yates* PL 539.) It is not material, hoAvever, in Avhich of these forms the requirement to take the property was, as there is not, in my opinion, any substantial difference betAveen them. The question in the case to be decided is, Avhether the present defendant is liable as a trespasser, to the present plaintiff, 358 CASES IN THE SUPREME COUET Foster v. Pettibone. the owner of the flour, for taking it as sheriff in obedience to the writ; or in other words whether trespass can be maintained by the owner of goods against a sheriff, for taking them under and pursuant to a writ of replevin against another person hav- ing the goods in possession. In Hallett v. Byrt, (Carthew, 380,) which was an action of trespass for taking three cows, the defendant pleaded specially, setting up a justification under a precept in replevin. The plaintiff demurred, assigning for cause, that the plea amounted to the general issue, and the demurrer was sustained for the reason stated, and also because a prescription relied upon in the plea as authorizing the process of replevin was void. In respect to the first cause, Holt, Ch. J., said, ' : If the defendants had admitted a bare possession &c., that would have been a sufficient color for the defendants to justify specially under the precept for replevin, because the cows were especially men- tioned in the precept, and they were commanded to take them, and therefore they might justify the taking be coveted. It is undoubtedly true that some decisions have oeen made in the courts of our sister states which maintain the doctrine center ded for by the plaintiff's counsel, and hold acknowledgments like the one in question de "VOL. XX. 48 378 CASES IN THE SUPREME COURT. Hamuiond v. Hudson River Iron and Machine Co. fective. I have not, however, been able to examine them in connection with the statutes upon which they are founded, with sufficient care to determine how far they are entitled to con- sideration on a question of this character. But whatever may be their binding force within the jurisdictions where they arose, I am satisfied that the weight of sound authority as well as of reason, is in favor of the view I have endeavored to maintain. The result is, that the ruling at the circuit was right, and the judgment must be affirmed. [JEFFERSON GHNERAL TERM, July 2, 1855. W. F. Allen, Pratt, Hid/bard and Bacon, Justices.] 248 >8 635 5 r 7 fif? / i>> 667 HAMMOND and others vs. THE HUDSON RIVER IRON AND MA- CHINE COMPANY, MEARS and BEACH. An action will lie, in aid of a suit at law, to reach property and effects in the hands of parties who, it is alleged, have fraudulently received the same from the judgment debtors, and unjustly assert a claim thereto against the plaintiff '9 judgment and execution The remedy, where a creditor's bill was proper previous to the code, is still pre- served, in the form of an action in the supreme court. The judgment creditor may commence the action for his own benefit, or in behalf of himself arid all others in the same situation with himself who may choose to come in and contribute to the expenses of the suit. The rule has not been changed by the code. It is not a subject of demurrer that all the creditors of the judgment debtors are not joined as plaintiffs. . A judgment creditor, who has exhausted his remedy at law, may obtain relief against his debtor's property in the hands of a fraudulent assignee, by a direct action against the debtor and the assignee, to reach' the property thus held un- der the void assignment. Where, in an action brought by a judgment creditor, against the judgment debtor, in aid of the suit at law, the complaint alleges that property and money receiv- ed by third persons under and by virtue of a fraudulent assignment and judg ment, was the property of the judgment debtor, such third persons are neces- sary parties to the action. And where, independent of any claim such third persons might set up as owners of the property sought to be reached by the action, they were charged by ST. LAWRENCE SEPTEMBEIt 1855. 379 Hammond v. Hudson River Iron and Machine Co. clear, distinct and specific allegations in the complaint, with fraudulent and unlawful acts, and with efforts to hinder and delay the plaintiffs in the collec- tion of their debt ; Held, on demurrer, that this was enough to render them proper parties to the action. Where the subject of an action is the property of a judgment debtor, and the cause or ground of action is an impediment thrown in the way of collecting the plaintiff's judgment, and the object of the action is to remove the impediment all other results being merely incidental, such as accounting, and applying the avails of the property which may be reached and the defendants are charged jointly with the commission of the fraudulent acts, and they are alike concerned in the judgment, or thing to be recovered, although their interests, as to separate parts, are distinct, the complaint will be held to contain but one cause of action. T\EMURRER to the complaint. The complaint set up the JL/ recovery of a judgment in favor of the plaintiffs against the Hudson River Iron and Machine Company, a corporation duly organized, the issuing of an execution thereon to the proper county, and its return by the sheriff unsatisfied. That the amount of the judgment remained due, and that the plaintiffs were the owners thereof. That the company had property, equi- table rights and choses in action, which ought to be applied on the judgment, and that the company was insolvent. That the defendants, Mears and Beach, claimed property and effects be- longing to the company, as assignees, under an assignment from the company to them, as a security for indorsements by them for the company, and had disposed of some part thereof; which assignment was alleged to be fraudulent and void as against the plaintiffs and other creditors. That the defendant Beach ob- tained a judgment against the company for the same debts and liabilities to secure which the assignment was made, and under execution issued thereon sold property and satisfied the same. That such judgment was fraudulently procured by Beach in col- lusion with the company and with Mears, and was fraudulent and void. That the company were insolvent when the assign- ment was made, and when the fraudulent judgment was obtained. That Beach and Mears were original corporators, and stockhold- ers of the company, and ever since then had been and still were stockholders for nearly one-half of the amount of the capital stock ; and that Mears, at the time of the making of the assign- 380 CASES IN THE SUPREME COURT. Hammond v. Hudson River Iron and Machine Co. ment, was the treasurer of the company, and executed the same for and in behalf of the company. That Beach and Hears claimed, under the assignment, all the company's property, both real and personal. That Beach was in the possession of the real estate mentioned in the assignment, carrying on business, and that Hears acted as his agent. That the indebtedness for which the plaintiffs' judgment was obtained accrued before the making of the assignment. The plaintiffs demanded as relief, that the assignment and judgment be adjudged fraudulent and void, and that the defend- ants Beach and Hears account for the property, with the avails of the property received by them and each of them tinder or by virtue of the same, and that the company might be decreed to pay the plaintiffs the amount found due them with costs, and be adjudged to apply for that purpose all property, money and effects belonging to it or held in trust for it, or fraudulently transferred to Beach and Hears. The complaint also asked for the appointment of a receiver, and for an injunction. Romeyn $ Taber, for the plaintiffs. A. D. Waite, for the defendants. BOCKES, J. This action is brought in aid of the suit at law, to reach property and effects in the hands of the defendants Mears and Beach, who it is alleged have fraudulently received the same from the judgment debtors, and unjustly assert a'claim thereto against the plaintiffs' judgment and execution. The proceeding is one formerly recognized and much favored in the court of chancery. Its object was to assist an honest creditor, and to defeat the purposes of those fraudulently combining to avoid the due execution of the law. The remedy, when a cred- itor's bill was proper before the code, is still preserved in the form of an action in this court. ( Rogers v. Hein, 1 Code Rep. 79. Dunham v. Nicholson, 2 Sanclf. 636. Goodyear v. Belts and Smith, 7 How. P. R. 187.) This being determined, the first objection raised by the demurrer should be considered. It is ST. LAWRENCE SEPTEMBER, 1855. Hammond v. Hudson River Iron and Machine Co. insisted that there is a defect of parties plaintiffs, inasmuch as all the creditors of the judgment debtors are not joined as plain- tiffs. The question presented by this objection cannot be re- garded as open for discussion, unless decisions are to be wholly disregarded. The creditor may commence the action for his own benefit, or in behalf of himself and all others in the same situation with himself who may choose to come in and contribute to the expenses of the suit. (Edmeston v. Lyde, 1 Paige, 637. Wakeman v. Grover, 4 id. 23.) The rule has not been changed by the code. (HaMcht v. Pemberton, 4 Sandf. S. C. R. 657. Brownson v. Gifford, 8 How. Pr. Rep. 389, 395.) Under the practice in chancery the creditor whose suit was first commenced, if the suit was brought for his own benefit only, obtained a pri- ority of lien on the judgment debtor's property and effects (ex- cept real property) over other creditors whose actions were afterwards commenced, and was entitled to a priority of payment from the avails thereof. (Corning v. White, 2 Paige, 567. Edmeston v. Lyde, 1 id. 637. Fitch v. Smith, 10 id. 9. Wheeler v. Wheedon, 9 How. Prac. Rep. 293.) The creditor thus obtains the reward of diligence. When the action is brought to set aside a general assignment for the benefit of the creditors of the judgment debtor, the assignee is deemed to represent all the creditors, and his defense is their defense. As beneficiaries of the trust, they are to be regarded as represent- ed by their trustee. (Russell v. Lasher, 4 Barb. 232. Wake- man v. Grover, 4 Paige, 23. Bank of Brit. N. America, v. Suydanij 6 How. Pr. Rep. 379. Wheeler v. Wheedon, supra.} Consequently they are not necessary parties to the action. In the case under consideration the assignment and judgment sought to be set aside, conferred no benefits or advantages upon any persons except the defendants Hears and Beach : hence they do not represent the interests of any one, in the property, except themselves. But they are in no better situation, on that account, to insist on the objection that there is a defect of par- ties plaintiffs. This action is therefore well "brought by the plaintiffs " as well for themselves as in behalf of all others hav- ing similar interests with them in the subject matter thereof, 382 CASES IN THE SUPREME COURT. Hammond v. Hudson Riv^r Iron and Machine Co. and in the relief sought to be obtained thereby, and who may choose to come in as parties plaintiffs to this suit and contribute their shares of the expenses thereof." How far this clause of the complaint, and how far the fact that the judgment debtor is a corporation, will affect the plaintiffs' right to an application of the funds to be acquired by this action, if any are acquired supposing that other creditors should come in to claim the advan- tages to arise from this prosecution it is unnecessary now to decide. As to the application of the funds, see Morgan v. A r . York and Albany Rail Road Co., (10 Paige, 290.) The second ground of demurrer is that the defendants Hears and Beach are improperly joined with the company, as defendants. By the complaint they are charged with being the fraudulent assignees of the company's property, and also beneficiaries of a fraudulent judgment against it. And the complaint prays that the assignment and judgment may be decreed void, and that Hears arid Beach may be compelled to account for the property, and the avails thereof claimed and appropriated by them under the same, to the end that such property and avails may be applied in satisfaction of the plaintiff's debt. The ob- ject of the action is to reach the property of the company arid the avails thereof which have come into the hands of Hears and Beach under the assignment and judgment. This pur- pose cannot be obtained without giving them an opportunity to litigate their right thereto. Before their claim can be barred they are entitled to a day in court. And to them it can make no difference whether the action to determine their claim is brought by the creditor, or by a receiver for his benefit. It was doubted, at one time, whether a receiver coulu maintain an action to set aside a fraudulent conveyance made by a judg- ment debtor ; but that doubt has been removed by a late decis- ion in the court of appeals, whereby it is held that he may. But I am not aware of any case deciding that a judgment creditor having exhausted his remedy at law, may not oMain relief against h'is debtor's property in the hands of a fraudulent assignee, by a direct action against him to reach the property thus held under the void assignment. Nor can I conceive of SI. LAWRENCE SEPTEMBER, 1855. 383 Hammond v. Hudson River Iron and Machine Co. any principle on which such a decision could be made or upheld, It has been the practice from a very early day, to institute pro- ceedings in form and theory like this, differing only in some unimportant specific allegations in regard to the alleged fraud- ulent acts of the parties. Spader \. Davis, (5 John. Ch. 280 ; affirmed in court of errors. 20 John. 554.) may be regarded as a leading case in this state, although the doctrine of that case had been recognized in some earlier decisions. Similar actions are to be found in almost every book containing reports of cases in chancery to the present day. (JLeitch v. Hollister, 4 Comst. 211. Barney \. 'Griffin, 2 Comst. 365.) Nor does the code offer any impediment to this action, for if, as has been seen, (1 Code Rep. 79 ; 2 Sandf. 637 ; ) the remedy, when a cred- itor's bill was proper before the cede, is still preserved in the form of an action in this court, the additional relief sought against the fraudulent assignees of the judgment ^debtor may be obtained also. Section 299 of the code applies to those cases only where proceedings supplementary to execution have been instituted under chap. 2, title 9 thereof. (Goodyear v. Belts. 7 How. Pr. Rep. 187.) It will not be claimed, proba- bly, that the judgment debtor, in an action to set aside a fraud- ulent disposition of his property, is not a necessary party espe- cially in a case like this, where the debtor still has an interest in the property assigned the same being transferred as security only. ( Vanderpoel v. Van Valkenburgh, 2 Seld. 190. Story's Eq. PL 153.) It is equally obvious and well settled that the fraudulent assignee should be made a party. ( Gray v. Schenck, 4 Comst. 460. Fellows v. Felicias, 4 Cowen, 682. Boyd v. Hoyt, 5 Paige, 65. Story's Eq. PI. 155.) The property of the judgment debtor is the subject of the action, and no rule is more apparent or more general in its application to chancery pleading, than that all the parties interested, or claiming an interest therein, should be made parties. This is necessary in order to a full and complete determination of the suit. In this case the property and money received by the defend- ants Hears and Beach, under and by virtue of the assignment arid judgment, are alleged by the complaint to have been and 184 CASES IN THE SUPREME COURT. Hammond v. Hudson River Iron and Manufacturing Co. to l>e the property and money of the company. Hence they must beheld, in deciding this case on demurrer to the com- plaint, necessary parties to the action. (Code, 118.) But independent of any claim they may set up as owners of the property, sought to be reached by this action, the defend- ants Mears and Beach are charged, by clear, distinct and specific allegations in the complaint, Avith fraudulent and unlaw- ful acts, and with efforts to hinder and delay the plaintiffs in the collection of their debt. That is enough to hold them, on demurrer, as proper parties to the action. (Brady v. McCosker, I Comst. 214. Huggins v. King, 3 Barb. S. C. Rep. 616.) It was remarked on the argument, that inasmuch as the complaint alleged a sale of the company's property on execu- tion, and that the same was liable to be applied on the plain- tiff's judgment, therefore the several purchasers on the exe- cution sale should be made parties. But the statement in the complaint when condensed, is, in substance, that the judg- ment was fraudulent, and that the defendants were therefore the fraudulent recipients of the avails of the sale ; and the plaintiffs seek now to charge the defendants, Mears and Beach, with the value or avails of the property sold. The third ground of demurrer is, that several causes of action have been improperly united. The subject of the action is the property of the judgment debtor ; the cause or ground of action, is the impediment thrown in the way of collecting the debt; and the object of the action is to remove the impediment. All other results are merely incidental, such as accounting and applying the avails of the property which may be reached. The complaint, there- fore, contains but one cause of action. The judgment pray <:d for, or to which the plaintiffs are entitled under the facts stated in the complaint, taken as admitted, would affect the parties alike. It would declare the assignment and judg- ment fraudulent and void, and that in law and in fact, the property and its avails received under them were subject to the payment of the company's debts, and should be applied in pay- ment thereof; and the accounting, and the decree to pay over ST. LAWRENCE SEPTEMBER, 1855. Hammond v. Hudson Uiver Iron and Machine Co. by them the amount they respectively might have received of the company's property, would be but carrying out the judg- ment equitably as between the parties. The defendants are charged jointly with the fraudulent acts ; they are alike con- cerned in the judgment or thing to be recovered, although their interests as to separate parts are distinct. Like Fellows v. Fellows, (4 Cow en, 682,) this case must be considered as falling within the class of cases where there is a common interest cen- tering in the point in issue in the cause. The allegation in regard to the real estate, and Beach's pos- session thereof as principal, and Hears' as agent, were proper, in order to authorize a clause in the decree, declaring the plain- tiffs' judgment equitably entitled to a priority of lien, over the alleged fraudulent assignment and judgment, set up by the defendants. If these should be set aside the other judgments against the company would become liens on the real estate in the order in which they were docketed. It may be proper to add a few considerations in regard to the judgment recovered by Beach. It is not sought to set that aside for irregularity, but for fraud. It is alleged that the judgment was obtained for the same indebtedness which formed the consideration of the alleged fraudulent assignment, and that it was obtained fraudulently and collusively, and that the same is fraudulent and void ; and it is also alleged that Mears was interested therein. As the facts are stated in the com- plaint, the assignment and judgment would probably stand or fall together. There are some shades and points of difference, but there are considerations common in their application to both judgment and assignment, which on this demurrer must be deemed sufficient to authorize the court to set them both aside in one action. The defendants are charged with setting them on foot and upholding them for the purpose of hindering, delaying and de- frauding the creditors of the company in the collecting of their debts. Some of the facts on which the plaintiffs rely to sustain the charge are stated, from which it appears, that in one view to be taken of the case, they stand alike and on the same facts VOL. XX. 49 386 ' J > Cj TJ VE SUPREME COUF.T. P. Hudson River Ircz eiid Machine Oo. It i? probable there are some t:nr.icoss?,/y allegations in the Perhaps it would Lave been enough to have alleged the judgment and execution, vitli a return thereof unsatisfied, the assignment and judgment and the defendants' claims there- urjuer, and that the same vere made and procured to hinder, df'fty and defraud th^, creditors of the company. But the question, on demurrer, is not whether the pleadings contain rodundant or irrelevant matter, but whether a cause of action in stated in the complaint. It is not dec-med necessary to decide whether the complaint would be considered good for the purpose of winding up the affairs of the company. If the views above suggested are cor- rect, it is ,ood for the purpose of reaching the property of the company m the hands of Mears and Beach, who, it is alleged, inlawfuliy claim it, and placing it in the hands of a receiver, to 5e applied according to law in satisfaction of its debts. The complaint contains no allegation that the action is ot preferred and prosecuted by collusion or for the purpose >f protecting the property and effects of the debtor against the elaims of other creditors. This allegation was rendered neces- sary in the late court of chancery by a rule of the court, and an omission of this averment was held to be good ground of de- murrer. (McElwain v. Willis, 3 Paige, 505.) The present rules of the supreme court have not adopted the chancery rule referred to. unless it must be regarded as adopted by rule 90. In Quick v. Keeler, (2 Sandf. 231.) it was decided that the rules of the court requiring certain allegations to be inserted in a creditor's bill were superseded by the code, and that it was enough if the plaintiff complied with the requirements of the code, and the provisions of the statute, in setting forth the cause of action. But in this case, this objection is not specially pointed out by the demurrer, nor was it mentioned by the defendant's coun- sel, on the argument or in his brief. If indeed a valid objec- tion, it should be considered as waived, under the circumstances of this case. The plaintiff is entitled to judgment on the demurrer, with CAYUGA JUNE, 1855. 337 Lewis v. Trickey. costs. But the defendants are at liberty to withdraw the de- murrer and to put in an answer to the complaint within twenty days, on payment of the costs of the demurrer, which, in cases like the present, are fixed at $23. [SARATOGA SPECIAL TERM, January 22, 1855. Bockcs, Justice. Affirmed at the ST. LAWRENCE GENERAL TERM, September 3, 1855. Bockes, C. L. Allen and James, Justices, and above opinion adopted, as the opinion of the court.] LEWIS vs. TRICKEY. |? * 468 39C W Where one person performs labor for another, the law presumes a request, and a -~2/ promise to pay what such labor is reasonably worth, unless it is understood that it is to be performed gratuitously, or it is performed under circum- stances which repel the presumption of a promise that compensation shall be made. W here an employer agrees to render an equivalent for services performed, it is no defense to an action against him to recover compensation, that he agreed tc pay some third person who has no legal claim to the service, or right to the compensation ; especially where the defendant does not show that he has in fact paid such third person. When payment for labor is to be made, the law will give it to him who performs the labor, unless some other person can show a better title. The value of services may be proved by the opinions of witnesses who are ac- quainted with the value of labor in the vicinity. But a defendant cannot prove by witnesses what the plaintiff's services were worth over and above his board, clothing, &c. furnished by the defendant, with- out proving or offering to prove that the witnesses knew the quantity or value of either item assumed by the question to have been furnished. .Neither can the defendant be permitted to ask a witness how much under all the circumstances, were the plaintiff's services worth, over his board. i PPEAL by the defendant from a judgment entered at a JLJL special term, upon the report of referees. The action was for work and labor, done upon the farm of the defendant from June, 1839, to November. 1844, by the plaintiff, at $12 per month. The answer denied the indebtedness alleged in the complaint, and set up as a defense that the plaintiff, some time 388 CASES IN THE SUPREME COURT. Lewis v. Trickey. in the year 1839, then being an indented apprentice to Peter Townsend, under the statutes of this state, was sent by him to the farm of the said Peter Townsend, in the town of Bristol, which the defendant worked for the said Peter Townsend, to learn the trade and science of farming ; and continued to reside with the defendant on the said farm until the latter part of the year 1843 ; that while he so resided with the defendant on the said farm he was furnished with board, clothing, schooling and pock- et money ; and that whatever services were rendered by him, during his stay on said farm, 'were rendered and performed by him for the said Peter Townsend as his indentured apprentice ; and that none of the said labor or services were performed by the plaintiff, as alleged in the complaint, within six } 7 ears next before the commencement of this suit. The defendant also claimed that the plaintiff was justly indebted to him, in the sum of seven hundred dollars over and above all offsets and pay- ments, for board, clothing, schooling, one cow, one yoke of oxen, farming stock and farming implements, furnished by the de- fendant to the plaintiff at his request. The answer was put in issue by a reply. On the trial before the referees, after the plaintiff had proved the performance of the services, as charged in the complaint, his counsel asked a witness " what were the services worth, in your judgment?" This question was objected to by the defend- ant's counsel, and the objection was overruled by the referees, and the defendant's counsel excepted. The witness answered, " I should think his services were worth about $12 for the last two years he worked there, for the third year about $10 per month, for the first and second years about $8 per month." All the evidence given on the part of the plaintiff in regard to the value of his services by the month, was objected to by the defendant's counsel, at the time it was offered, because no foundation had been laid for such proof, and also because it did not appear that the plaintiff had ever worked for defendant in the capacity of a hired man, by the month or otherwise. The said objections were overruled by the referees, and the evidence admitted, and the defendant's counsel excepted. The plaintiff CAYUGA JUNE, 1855. 359 Lewis v. Trickey. rested his case, and the defendant's counsel moved for a nonsuit, on the ground that there was no proof that the defendant ever employed the plaintiff, or promised to pay him any thing for his services, or that they were, in fact, of any value. Motion denied by the referees, and the defendant's counsel excepted. A witness for the defendant was asked the question, " what, in your opinion, were the services of the plaintiff worth to the de- fendant the first year, under the circumstances he was placed in, besides his board?" Objected to by plaintiff's counsel. Objection sustained and question overruled, and the defendant's counsel excepted. Question. " What in your opinion were his services worth over and above his board during the whole time the plaintiff was with the defendant?" Objected to by the plaintiff's counsel. Objection sustained, and the defendant's counsel excepted. The referees, by their report, found that the plaintiff lived with and worked for the defendant from the middle of June, 1839, to the middle of November, 1844, in all, five years and five months. That the plaintiff and defendant from the begin- ning to the end of said time believed, and acted on the belief, that the plaintiff was the apprentice regularly bound, of one Peter Townsend, by whom the plaintiff was placed in the ser- vice of the defendant. That during all said time the plaintiff was a minor. That in 1837 an indenture of apprenticeship, purporting to bind the plaintiff to said Peter Townsend, was executed within this state, by the plaintiff, by said Townsend, and by the maternal grandfather of the plaintiff, with whom the plaintiff was then and had been living for about nine years. That the plaintiff so lived with said grandfather with the knowledge of his mother, who was then and is yet living. That the plaintiff was born out of wedlock, and that his mother did not execute any consent to said mentioned indenture. And they found as matter of law, that said indenture was not made and executed according to the statute, was illegal, and of no validity. They found as matter of fact, that the plaintiff's labor during the period he worked for the defendant was of the value of $351. That during said period, the defendant fur OASES IN THE SUPREME COUET. Lewis v. Trickey. mshed the plaintiff with board, clothing, schooling, a cow, and various articles, to the value in all of $284. And they report- ed that there was due the plaintiff from the defendant, $67, with interest from November 12th, 1844 ; for which sum, with interest and costs, judgment was rendered in favor of the plaintiff. James C. Smith, for the plaintiff. & V. R. Mallory, for the defendant. By the Court, JOHNSON. J. "Where one person performs labor for another, the law presumes a request, and a promise to pay what such labor is reasonably worth, unless it is understood that it is to be performed gratuitously, or if it is performed under circumstances which repel the presumption of a promise, that compensation shall be made. In this case it was under- stood that the defendant was to make compensation for the plaintiff's services. Townsend, who claimed the plaintiff as his apprentice at the time he went into the defendant's service, expressly testifies that he required an equivalent from the de- fendant for the plaintiff's services, in making improvements upon the farm, such as fencing, clearing land and the like. The defendant then occupied the farm as the tenant of Townsend, working it on shares. There being an express agreement or understanding that compensation for the services was to be made, the only question that can possibly arise as to the right of action, is whether the plaintiff can maintain it for the ser- vices thus rendered. It does not appear from the evidence that the defendant has ever made the compensation agreed upon, to Townsend, so that the case is relieved from all embarrass- ment on that score. And indeed it is difficult to see how Townsend ever had any right to demand or receive the equiv- alent stipulated for. His claim rested upon the indenture of apprenticeship alone, and that not having been made or con- sented to by any authorized person, was entirely void. (2 H. *$'. 154, H 1, 2, 3.) The plaintiff's grandfather, who had brought CAYUGA JUNE, 1855. 39} Lewis v. Triekey. him up from infancy, and who, as appears from the case, had formerly stood in loco parentis, could make no claim, as he had previously relinquished voluntarily all claim to the services. And the mother, although living at the time of the trial, must be presumed from the evidence, to have relinquished all her claims to control either the plaintiff's person or his earnings, many years previous to the time when the services in question were rendered. For aught that appears therefore, the plaintiff is the only person who has any legal claim to his own earnings. This case steers entirely clear of the cases of Williams v. Finch, (2 Barb. S. C. #.208;) Williams v. Hutchinson, (3 Comst. 312 ;) Livingston \. Ackeston, (5 Cowen, 531,) and the other cases cited by the defendant's counsel. Those cases all turn upon the fact, that the services for which compensation was claimed, were from the very nature of the case to be ren- dered without compensation, and therefore no legal liability to pay was ever incurred. Not so here. The plaintiff was not the defendant's apprentice, but his hired servant. The defend- ant expected and agreed to render an equivalent for the ser- vices, and it is no answer for him to say that he agreed to pay some person who has no legal claim to the service or the com- pensation ; especially as he does not show that he has paid any one. Where payment is to be made, the law will give it to him who performs the labor, unless some other person can show a better title. The referees decided correctly in allowing the plaintiff to prove the value of his services by the opinions of witnesses who were acquainted with the value of labor in the vicinity. They also decided correctly, I think, in rejecting the evidence on the same subject offered by the defendant. There is no such diffi- culty in reconciling the decisions as the defendant's counsel seems to suppose. The defendant offered to prove by his wit- nesses what the plaintiff's services were worth over and above his board, clothing and schooling furnished by the defendant, without proving or offering to prove that the witnesses knew the quantity or value of either item assumed by the question to have been furnished. This, as the referees properly suggest. S92 CASES IN THE SUPREME COURT. Brings v. Palmer. in making their decision, would be putting the witness in their place and making him judge of the entire case. They held that the defendant might prove the value of the whole on each side. Of the same character, and liable to the same objections, is the evidence offered in this form : How much under all the circumstances were the plaintiff's services worth over his board? The form of the question implies the existence of some modify- ing or qualifying circumstances, which the witness might take into the account, and pass upon, instead of disclosing them in the evidence for the referees to pass upon. There was, in my judgment, no error committed at the trial, nor in the conclusions of law, upon the facts established, and the judgment should be affirmed. [CAYUGA GENERAL TERM, June 4, 1855. Selden, T.R. Strong and Johnson^ Justices.] WILLIAM S. BRIGGS vs. JOHN J. PALMER, special receiver. Where assignees, under an assignment made for the benefit of creditor??, reconvey to the assignor the real estate embraced in such assignment, without having paid and satisfied the debts for the payment of which the trust estate was creafed, such reconveyance is absolutely void, at least as to all creditors whose debts were provided for in the assignment, and which remained unpaid at the date of the reconveyance. And in a contest between a person claiming title under and in consonance with the trusts created by the assignment, and an incumbrancer of the title attempt*- ed to be conveyed by the trustees in contravention of such trusts, the validity of the mortgage will be in no way helped by the fact that the mortgagees, at the time of taking it, had no actual notice of the existence of a claim against the trust estate, or of the assignment, and reconveyance. The assignment, and the reconveyance, are matters of record, which the statute makes sufficient notice to ajl subsequent purchasers and incumbrancers. And such purchasers or incumbrancers, having constructive notice of the assign- ment, are put upon inquiry as to all claims and rights under it. Trustees cannot, by a recital in a reconveyance of the assigned property, contrary to the fact, affect the interests of eestuis que trust. Therefore a recital that the debts of the assignor have all been paid, will be of no avail. MONROE SEPTEMBER, 1855. 393 Briggs v. Palmer. After a debtor has assigned his real estate in trust for the benefit of creditors, he, having no title, cannot create an incumbrance upon the estate. A mortgage executed by him will therefore, at most, only operate as an assignment or equi- table mortgage of his residuary interest, after the trust shall have been fully executed. Under this, the mortgagee may, it seems, pay a debt existing against the trust estate, before a sale of the trust property to pay the debt, and a transfer of the title. But after the title has parsed to a bona fide purchaser at a judicial sale ordered for the purpose of satisfying a previous debt of the assignor, there can be no redemption by any one standing in the position of the assignor, or claiming under him subsequent to the creation of the trust estate. was an appeal, by the defendant, from a judgment JL entered at a special term. The relief demanded by the complaint was that the defendant be directed to release arid discharge certain premises from the lien and operation of a mort- gage thereon, executed by Cornelius Hasten and wife to Joseph D. Beers, president of the North American Trust and Banking Company, on the 1st of November, 1838 ; and that he, and all persons claiming an interest in said mortgage subsequent to the commencement of this action be perpetually enjoined from fore- closing the same, or enforcing the lien thereof against the prem- ises described in said mortgage. The action was tried at the circuit in Yates county in November, 1853, before Mr. Jus- tice WELLES, without a jury, when after hearing the proofs and allegations of the respective parties, the following facts were found by the court, to wit : That Cornelius Hasten, on the 21st day of April, 1834, being in embarrassed circumstances, made a general assignment of all his property and effects to Joel Dorman, Evert Van Buren and James C. Robinson, in trust for the benefit of his creditors, as mentioned and set forth in the complaint. That said deed of assignment was duly acknowl- edged and recorded in the office of the clerk of Yates county, on the 29th day of April, 1834, in the book of deeds, as a deed con- veying real estate. That immediately after the execution and delivering of the said deed of assignment, Dorman, Robinson and Van Buren, as assignees and trustees under the same, ac- cepted the trust therein conferred, and entered upon the execu- tion of the said trust, and for that purpose took into theii VOL. XX. 50 394 CASES IS THE SUPREME CODRT. Briggs v. Palmer. possession and under their control the principal part of the assigned property. That at the time of making the s^d assign- ment Joel Dorman was liable as security and indorser for Mas- ten to a large amount, the payment of which was provided for in and by the deed of assignment as mentioned in the complaint. That after making said assignment. Dorman in his lifetime ad- vanced and paid large sums of money for Masten as his indorser, the payment of which was provided for in said assignment. That Dorman died on the 26th day of March, 1836, intestate, as mentioned in the complaint, and that Masten was indebted to Dorman at the time of his death, by reason of advances made by him as aforesaid. That after his death Heuben Crawford, Calvin S. Coates and David B. Prosser were duly appointed ad- ministrators, as mentioned in the complaint. That Prosser, one of the administrators of Dorman, after his appointment, and some time in the year 1837, called upon Robinson, one of the surviv- ing assignees and trustees under the deed of assignment of the 21st day of April, 1834, and requested payment of the sum ad- vanced by Dorman in his lifetime, for the use and benefit of Masten, and informed Robinson of the claim of Alva Clark against Dorman's administrators, as mentioned in the complaint. That the administrators of Dorman, on the 25th day of April, 1839, filed their bill in the court of chancery, before the vice chancellor of the seventh circuit, against Masten, Robinson and Van Buren, to compel payment of the debts alleged to be due to them, as the representatives of Dorman, and to have been provided for under the assignment. That no notice of lis peudens was filed. That after the final decree or judgment was obtained in that suit, certain premises were sold under the same, and purchased by the plaintiff, for the use and purpose mentioned in the complaint, and the premises duly conveyed to the plain- tiff by the referee, and the possession thereof taken by him un- der his deed, and that he still so holds the same. That on the 17th day of September, 1838, Robinson and Van Buren, as sur- viving assignees and 'trustees under the deed of assignment of the 21st of April, 1834, under their hands and seals, after recit- ing the making of the assignment as aforesaid, and that the trust MONROE SEPTEMBER, 1855. 395 Briggs v. Palmer. had been executed, released and reconveyed to Hasten, all the assigned property then remaining in their hands undisposed of, among which were the premises purchased by the plaintiff, which said deed or release was duly acknowledged and recorded in the office of the clerk of Yates county, on the 12th day of Novem- ber. 1838. as a deed of real estate. That Robinson, Van Buren andMasten, at the time of making and executing said release, had notice of the claim of the personal representatives of Dor- man upon the assigned property. That Robinson and Van Bu- ren made and executed the said release in contravention of the provision of said deed of assignment and in violation of the trust therein expressed. That on the 1st of November, 1838, Masten and his wife made, executed and delivered a mortgage to Joseph D. Beers, president of the North American Trust and Banking Company, on the premises previously purchased by the plaintiff, for $9000, payable in one year with interest ; which mortgage was recorded in the office of the clerk of Yates county, on the 4th day of May, 1839. That at the time of the recording of the said mortgage, no advancement or payment had been made to Masten on the account thereof. That on the 21st day of May, 1839, this mortgage was delivered to the North American Trust and Banking Company, and that company issued and de- livered to Masten ninety shares of the stock of said company at $100 per share, amounting to $9000, as the consideration for said mortgage. That said stock was issued and delivered tc Masten in good faith, without actual notice of the claim of Dor- man or his personal representatives. That the abstract of title made by the clerk of Yates county for the said company, bear- ing date the 5th day of May, 1839. and upon which the agents of the company acted in receiving said mortgage and issuing the stock thereon, did not contain the said assignment of the 21st of April, 1834, or the release of the 17th September, 1838, or any note, reference or allusion to them or either of them. That Masten continued to reside in one of the dwelling houses upon the premises from the time of making the assignment until the time of his death, on 31st October, 1850. That Robinson, one of the surviving assignees, is insolvent, and bus been so since CASES IN THE SUPKEME COURT. Briggs v. Palmer. 1840, and that the defendant, as the special receiver of the North American Trust and Banking Company, is the assignee and holder of the mortgage given by Masten and wife to Beers, as mentioned in the answer of the defendant. The court found, as conclusions of law from the foregoing facts, 1st. That the release or reassignment of the 17th September, 1838, executed by Robinson and Van Buren to Masten, as between the parties thereto, was absolutely void, and that no title passed under the same to Masten, so far as the claim of the personal representa- tives of Dorman was concerned. 2d. That the plaintiff in this action as the purchaser of the premises under the decree obtained by the personal representatives of Dorman, was entitled to have and hold the premises conveyed to him by the referee free, clear and discharged from the lien of the mortgage mentioned in the complaint given by Masten and wife to Beers, as president, &c. "The following opinion was given by the justice, at the special term : " WELLES, J. The re-vised statutes provide that when the trust shall be expressed in the instrument creating the estate, every sale, conveyance, or other act of the trustees, in contra- vention of the trust, shall be absolutely void. (1 R. S. 730, 65.) The evidence establishes that the trusts created in and by the assignment of C. Masten to Dorman, Van Buren and Robinson, were not all executed at the time of the reassignment by the two surviving assignees to Masten. The decree or judgment in the suit by Dorman's administrators against Masten and the two surviving assignees, Van Buren and Robinson, shows that a considerable debt or liability to Dorman, the payment of which was provided for by the assignment, and being the same debt which the judgment in that case made chargeable upon the lands in question, was unpaid at the time of the reassignment, and has remained unpaid to the present "time. The assignment was ex- pressed to be in trust for the payment of debts. The reassign- ment was therefore, as between the parties to it at least, clearly in contravention of the trust, and void. The real question in this case, and one in which I have MONROE SEPTEMBER, 1855. 397 Briggs v. Palmer. considerable difficulty, is whether under the circumstances the defendant and those whose interests he represents, are to be affected by the fact that the trusts were unexecuted. The re- assignment, which was duly recorded before the consideration for the mortgage was advanced to Masten, recited that the trusts had been executed. Itwas given more than four years after the instrument creating the trusts was executed, and nearly two years after the death of Dorman. Masten, the assignor, was in possession of the premises in question, a part of the as- signed property, from the date of the assignment, until his death in October, 1850, and no steps were taken by the assignees to disturb him or to dispose of this property. It is contended on the part of the defendant, that looking at the provisions of the assignment, and the nature of the property assigned, abundant time had elapsed to enable the assignees to complete the execu- tion of the trust, and to show that if it w"as not executed even at the death of Dorman, they had been guilty of culpable negli- gence ; that if under such a state of facts the presumption that the assignees had done their duty and fully executed the trusts would not arise, still when the surviving assignees declare the trusts executed, and reconvey the property, the plaintiff should be held precluded from setting up the contrary, as against a bona fide incumbrancer without notice, who may be presumed to have parted with his money and taken the mortgage upon the faith of the state of things referred to. Admitting the existence of these presumptions, I am nevertheless of the opinion that they are not conclusive, but may be rebutted and overthrown by evidence, which has been completely done. Dorman was a cestui que trust under the assignment, as well as a trustee. Not quite two years had elapsed after the assignment was executed, when he died. The moneys for which he was liable, and for which the decree was made, or some part of them, had not been paid at his death, but were paid afterwards by his administra- tors. The trust as to him ceased at his death, and passed to nis co-trustees, but his interest as cestui que trust survived to his personal representatives. They commenced their suit in equity to have them ascertained and adjudicated, very soon after 393 CASES IX THE SUPREME COURT. Briggs v. Palmer. tlie death of their intestate, and that suit was protracted by causes for which, so far as the papers show, they are not ac- countable, until 1852, and a short time before this action waa commenced. When the Trust Company took their mortgage, or rather when they advanced their stock upon it, the records in the county clerk's office gave them notice that Masten held under the deed of reassignment by the assignees to him, and the law said to them, that if the recital in that deed, that the trusts were executed, was untrue, the deed was given in contra- vention of the trust, and was void. I incline to think, therefore, that they acted at the risk of that turning out to be the fact. If the mortgage had been given by the assignees and the con- sideration paid to them, it would probably have been a valid incumbrance if done in good faith on the part of the mortgagee, and provided also the terms of the assignment would authorize the assignees to raise money by mortgaging the trust property for the purposes of the trusts. In such case the person advan* cirig the money would not be responsible for its proper applica- tion. But such was not this transaction. The money was not loaned to the trustees, but to Masten in his own right, and the mortgage given by him as security depended for its value as a security, upon his title to the property mortgaged, and that de- pended upon the reassignment by the surviving assignees* to him, which has been shown to have been in contravention of the trust, and which the statute declares to be absolutely void. The defendant's counsel contends that the utmost liability of the defendant is to pay the plaintiff the sum paid by him for the lands in question at the referee's sale : upon doing which the sale to the plaintiff will be null and void. But I do not think so. The plaintiff has either a complete legal title wholly dis- charged from the mortgage, or he has such title subject to the mortgage. I am not aware of any principle by which the de- fendant has the right to claim an equity of redemption. There must be judgment for the plaintiff substantially ac- cording to the prayer of his complaint, but no costs to be allowed to either party as against the other." MONROE SEPTEMBER, 18.35. 399 Briggs v. Palmer. A judgment was accordingly entered declaring and adjudging tliat the deed of release executed by Robinson and Van Buren, as surviving assignees, to Masten, was void as between the par- ties to this action, and all persons claiming or to claim through or under them, or either of them, subsequent to the commence- ment of this action. It was further ordered and adjudged that the defendant John J. Palmer, as special receiver of the North American Trust and Banking Company, be authorized and di- rected to execute and deliver to the plaintiff in this action, a good, valid .and sufficient release in law, releasing and discharg- ing the premises mentioned and described in the complaint, as the premises purchased by the plaintiff at the sale made by the referee on the 22d day of June, 1852, from the lien and opera- tion of the mortgage executed by Cornelius Masten and wife to Joseph D. Beers, president of the North American Trust and Banking Company, bearing date the first day of November, 1838. And it was further ordered and adjudged that the said John J. Palmer, and all persons claiming or to claim under and through him, any interest, right or title to said mortgage, or the moneys intended to be secured by the same, subsequent to the commencement of this action, be perpetually enjoined from fore- closing the said mortgage, or in any way or manner enforcing or attempting to enforce the lien of said mortgage, so executed by said Masten and wife to the said Joseph D. Beers, against the said premises so directed to be released, or any part or parcel thereof. And it was further adjudged that neither party have costs as against the other party. n. W. Boimey. for the appellant. I. The defendant holds tlie position of a bona fide -purchaser (mortgagee) for full con- sideration paid, without notice ; and is entitled to all the benefit nml protection which that position affords. This is not ques- tioned, and is expressly found by the court below. H. The judgment appealed from rests upon two conclusions of law, stated by the justice before whom the action was tried, at special term; in both of which, as the appellant insists, there is error. (1.) The reassignment, dated 17th September, 1838 4 CO CASES IN THE SUPREME COURT. Briggs v. Palmer. executed by Robinson and Van Buren. surviving assignees, to Mas ten, is not, as against this defendant, a conveyance in con- travention of the trusts expressed in the assignment, and there- fore is not void, as is supposed. (1 R. S. 730, 65.) On the contrary, such reassignment purports to be and upon its face is in strict accordance with and a mere performance of the trusts of the assignment. (Burrill on Assignments, 494. Brashear v. West, 7 Peters, 608. Halsey v. Whitney, 4 Mason, 222, 3. Lazarus v. Commonwealth Ins. Co., 19 Pick. 81.) The as- signees, under the assignment in question, had full power to sell and convey the assigned property, or any part of it ; and no purchaser was bound to ascertain the necessity of the sale, or to inquire as to the existence of unpaid debts, or to see to the ap- plication of the purchase money. In case of any misappropria- tion of the fund, the creditors must seek their remedy against the assignees. (1 R. S. 729, 60, 66, 67. Hill on Trustees, 342, Am. ed. 2 Story's Eq. Jur. 1127, 1131 to 1134. Gard- ner v. Gardner, 3 Mason, 178.) The assignees not only had the power, but it was their duty, after payment of debts, to re- convey the residue of the assigned property to the assignor, and the same rules and principles apply to a purchase made after such reconveyance as to a purchase directly from the assignees themselves. The assignees were the agents and trustees of the creditors entitled to the benefit of the assignment. If the cred- itors were not paid, the execution of the reassignment, with its recitals, was a fraud, the consequences of which must be borne by the creditors rather than by a bona fide purchaser. In this case there was nothing to put a purchaser upon inquiry as to the bona fides of the reconveyance, or to raise a suspicion that Dorman's debt had not been paid ; qn the contrary, all the cir- cumstances were in favor of the integrity of the transaction. I* was the duty of the assignees to sell the assigned property, and close their trust without delay, and full time had elapsed to raise the presumption that they had done so, and that the reci- tals in the reassignment were true. (Bur rill on Assignments, 451. Hart v. Crane, 7 Paige, 37.) Dorman was a preferred creditor and also assignee, and the presumption that his debt MONROE SEPTEMBER, 1855. 40 ] Briggs v. Palmer. had been paid, especially, arose. Hasten resided on and was in full possession of the premises in question, which, as in favor of a bona fide purchaser, against Dorman's representatives, is con- clusive to support the reconveyance, and the title of such pur- chaser derived through it. If no conveyance had been found on the record, the facts of the case authorize the presumption that a reconveyance had been made. (Hill on Trustees. 556, 7, 8, and cases there cited. England v. Slade, 4 Term. Rep. 682. 1 R. S. 726, 62 to 67.) The fact that Hasten remained ap- parent owner and in possession and occupation of the premises in question from the time of making the assignment, is, as against a bona fide creditor or purchaser, evidence of fraud in the assignment, unless the other assigned property was sufficient to pay all the debts of the assignor, as to which there is no evi- dence. (2.) The plaintiff in this action, by his purchase under the decree in the case of Dorman's administrators against Mas- ten. &c. has acquired no title to the premises in question, as against the mortgage now held by the defendant as special re- ceiver. The bill of Dorman's administrators against Hasten, &c. was not framed or intended to reach this real estate or. any part of the assigned property ; and no notice of Us pendens was filed. The decree of the chancellor, under which the plaintiff's title (if any) is derived, gives no right to or interest in the prem- ises in question, as against the defendant's mortgage. The pro- ceedings under the chancellor's decree, the judgment of the supreme court founded thereon, and the sale and conveyance un- der such judgment, gave to the plaintiff no right or title beyond what was adjudged by the chancellor ; and certainly none as against this defendant, who was no party to that suit. III. The assignment under which the plaintiff claims was only a security for the payment of the debt alleged to have been owing by Hasten to Dorman ; and, so far as this real estate is concerned, was, in effect, a mortgage. The proceedings and sale in the suit of Dorman's administrators against Hasten, &c. amount merely to a foreclosure of that mortgage. And. even if we admit that Dorman's representatives had the prior lien on the premises, the plaintiff's title, derived under said decrees VOL. XX. 51 402 CASES IN THE SUPREME COURT. Briggs v. Palmer. and sale, is subject to the defendant's right, as a subsequent incumbrancer not made party to the foreclosure suit, to redeem on payment of the amount bidden and paid by the plaintiff, ($100,) with interest from the time of payment. No demand was made on the defendant to redeem before the commencement of this action, and therefore the plaintiff cannot claim costs. D. B. Prosser, for the respondent. I. The final decree or judgment of the administrators of Dorman against Masten, Van Buren and Robinson, is conclusive evidence of the follow- ing facts : The indebtedness of Masten to Dorman at the time of Dorman's death ; that the payment of such indebtedness was secured and provided for in and by the deed of assignment made by Masten, bearing date 21st April, 1834 ; that such in- debtedneess remained unpaid at the time of rendering such final judgment or decree ; that said debt was a lien upon the assigned property ; and that the reassignment of Robinson and Van Buren to Masten, dated 17th September, 1838, was in contravention of the trust expressed in the said deed of assign- ment ; and in fraud of the rights of Dorman and his estate. (Candee v. Lord. 2 Comst. 269.) II. The release or reassignment from Robinson and Van Buren, the surviving assignees, to Masten having been made before the trust created in the deed of assignment had been executed, leaving the debt due to Dorman or his estate unpaid, was in direct contravention of such trust, and therefore abso- lutely void ; hence no title passed to Masten thereby. (1 R. IS. 730, 65. Cruger v. Jones, 18 Barb. 467. Chittij on Con- tracts, 229. 6 Taunt. 369.) III. The defendant occupies the same position and relation as the mortgagee, and is entitled to the same, but no greater equities. The assignment having been recorded long before the mortgage in question was executed, the record thereof was constructive notice to the mortgagee, that Masten had no inter- est which he could mortgage. (12 John. 343. 1 Selden, 301. 1 Hoicard'f: Appeal Cases, 475, 476. 477 and cases there cited.} The omission of the clerk to notice the assignment in his cer- MONROE SEPTEMBER, 1855. 4 03 Brisss v. Palmer. tificate of search of title, upon which the mortgagee acted in taking the mortgage, cannot affect or prejudice the rights of the plaintiff under the decree. IV. The recital in the release or reassignment " that the trust had been executed &c.," is not even prima facie evi- dence of that fact as against the plaintiff, for the following reasons : (1.) The plaintiff does not claim through this release, but in hostility thereto. (2.) Recitals are only evidence against the parties, their privies, or those claiming under or through the instrument containing the recital. (3.) Recitals are no higher evidence than the declarations of parties by which they may be estopped. V. The defendant in his answer does not claim that the trust had been executed. To avail himself of such a defense it should have been set up in? the answer ; nor is he entitled to the benefit of any presumption arising from the lapse of time. Presumptions are only allowed to prevail where it is the duty of some party or person to do an act, the omission of which would amount to a wrong ; and no presumption can in any case be allowed to prevail, where the proof, as in this case, is posi- tive that the trust had not been executed. Presumptions are never allowed where the proof establishes the thing to the con- trary. It is only in the absence of proof that presumptions .are resorted to. VI. The defendant has not by his answer put himself in a situation to avail himself of the defense, that from the lapse of time and the other facts in the case, the mortgagee had a right to presume the trust executed, for he denies notice of the as- signment in fact ; and so far as the evidence in the case goes it shows that he took the mortgage without notice, in fact, of the assignment ; if so, it follows that there was no presumption whatever for him to act upon. He could not presume a trust executed of which he had no knowledge. VII. The personal representatives of Dorman cannot be af- fected by the acts or omissions of the surviving assignees, after the death of Dorman. Had the surviving assignees, after Dor- man's death, wholly renounced the trust, and reconveyed the 404 CASES IS" THE SUPREME COURT. Briggs v. Palmer i . asssigned property to Masten, still the property woul a decree of foreclosure ; but on discovering the existence of the incumbrance they may proceed immediately, and on complying with all the provisions of the act, may have the lien extinguished, as to the land occupied by them 420 CASES IN THE SUPREME COURT. Matter of the New York Central Rail lload Company. T1HIS was an application for the appointment of commissioners to ascertain and appraise the compensation to be paid to the owners or persons interested in certain real estate which had been taken for the use of the Schenectady and Troy Rail Road Company before its consolidation with the New York Central Rail Road Company. The petition set forth the act of incorpo- ration of the former company, and alleged that they did, pursuant to said act, construct their railway. That the lands mentioned in schedule A, annexed to the petition, were necessary for, and required by, the Schenectady and Troy Rail Road Company for the purposes of its incorporation, and that on the 7th day of May, 1841, John Mallany was in possession of the land in said schedule described as parcel No. 1, claiming to own the same, clear and free from all incumbrances ; and that, believing said claim to be well founded, the company paid Mallany $500 therefor, being the full value, and took from him a warranty deed in fee for said parcel, on that day. That on the 17th of May, 1841, John Whittick was in possession of the land de- scribed in the schedule as parcel No. 2, claiming to own the same in fee ; and that believing said claim to be just, the com- pany, on that day, paid him $410 therefor, being the full value, and took a warranty, deed from him. And that on the 29th day of April, 1841, Peter D. Van Vranken was in possession of the land described in the schedule as parcel No. 3, claiming to own the same in fee, clear of incumbrance ; and that the company, believing his claim to be well founded, paid him therefor $85.75, the full value, and received a warranty deed from him in fee. for said premises. That in the spring of the year 1841. the com- pany entered into possession of said several parcels, under said deeds, as their own property, and constructed their road thereon, at great expense ; and that said lands had ever since said spring of 1841 been and still Avere used under said deeds for rail road purposes. That the length of said rail road was 21 miles ; of which a map and survey was made and filed in January, 1840. That on the 28th of January, 1841, the road was located and the location in writing was filed as required by law. That the capital stock of the company was $650,000, which was all su') FEAXKLI^ SEPTEMBER. 1854. 49 \ Matter of the New York Central Rail Road Company. scribed and paid in in good faith. That immediately after the purchases aforesaid the rail road was constructed from Schenec- tady to the west bank of the Hudson river, by said company, and had ever since been and still was used through its entire extent, for rail road purposes. That it was so used by said Schenectady and Troy Rail Road Company until its consolida- tion with the New York Central Rail Road Company, pursuant to the act of April 2, 1853, on the 7th day of July, 1853, since which time the latter company had possessed and owned all the real and personal property, and exercised all the rights, priv- ileges and franchises which before then belonged to the said Schenectady and Troy Rail Road Company. That in the year 1846, one Charles A. Peck, now of the city of New York, as ad- ministrator with the will annexed of Thomas Tom deceased, filed his bill of complaint in the then court of chancery of the state of New York, against the said Mallany, Whittick and Van Vran- ken, to foreclose a mortgage covering the lands mentioned and described in said schedule A, and other lands, which mortgage was made by Elias Kane, late of the city of Albany, deceased, and Deborah his wife, to Thomas Bloodgood, acting executor of Thomas Tom, deceased, on the 1st day of May, 1817. That said Schenectady and Troy Rail Road Company and others, believing that said mortgage had been satisfied) interposed defenses against the same as they were advised were proper ; and that said action to foreclose was transferred from court to court until it was brought into the court of appeals and there argued, and which court decided the same in December, 1853. and not only decided that said mortgage was a valid lien and incumbrance upon the lands mentioned and described in said schedule A, and in part unsatisfied, but in effect that the heirs at law of the said Elias Kane, deceased, had still an interest in said premises, and that the title of the Schenectady and Troy Rail Road Company and that of the petitioners was defective ; that they had there- fore failed to obtain a perfect title to said lands mentioned in said schedule, and that they were required by the petitioners for the purpose of constructing and operating their road ; and that they had not been able to acquire a perfect title to the said 422 CASES IN THE SUPREME COURT. Matter of the New York Central Rail Road Company. lands, for the causes above set forth. That Charles A. Peck administrator, Thomas T. Bloodgood, executor, and various other persons and parties named in the petition, had or claimed to have, as the petitioners were informed and believed, some in- terest in the said lands, as owners or incumbrancers or otherwise. They therefore prayed that commissioners might be appointed, and that they might be permitted to continue in possession in the mean time, and that all actions and proceedings against them might be stayed. Copies of the petition and notice were served upon all the parties named in the petition. Charles A. Peck appeared to oppose the motion, and his counsel read the affidavits of Malla- ny. Van Vranken and Sarah Whittick, and the answer of the Schenectady and Troy Rail Road Company in the suit of Peck against that company, which he claimed showed a good adverse possession under the sheriff's deed to Whittick and Foster as against the heirs at law of Elias Kane, which barred their legal title to the premises. The parcel of land purchased from Peter D. Van Vranken was not covered by the mortgage. It appear- ed that the court of appeals decided that the mortgage was valid upon its execution ; that the part of the premises conveyed by Kane and wife to Peter A. Van Vranken was released from the lien of the mortgage ; that the sheriff's deeds to Whittick and Foster were and are void for uncertainty, and that the defend- ants who claimed estates under the said deed did not take and had not any title derived therefrom, and that said premises were subject to the lien of the mortgage, which had not been paid or extinguished. A bill of amendment and supplement was filed in the supreme court, and a decree finally entered in conformity with the decision of the court of appeals, ordering among other things, the premises in the possession of the petitioners to be sold, in the inverse order of alienation. Townsend fy Kellogg, for the petitioners. P. Potter and A. C. Paige, for Charles A. Peck. FRANKLIN SEPTEMBER, 1854. 423 Matter of the New York Central Rail Road Company. By the Court, C. L. ALLEN, J. The Schenectady and Troj Rail Road Company, in procuring title to lands under their or- ganization and act of incorporation, obtained the deeds for the parcels of land contained in schedule A, at the times and in the manner and for the consideration stated in the petition. They supposed and believed at the time, that they obtained a good and perfect title, and went on and constructed their rail road at a great expense, over the lands thus purchased, and remained in possession, under claim of title, till the filing of the bill to fore- close the Kane mortgage. They interpose among other things the defense of payment of the mortgage, and their title thus ac- quired. The court of appeals determined and decided that the mortgage was not paid ; that it was a good and valid lien upon the premises to which they supposed they had acquired title, except as to the part conveyed to Peter A. Van Vrancken ; that the she^ff's deed through which the plaintiffs and those under whom they claimed derived title were void for uncertainty ; and a decree is now in force in the supreme court, in obedience to that decision, ordering a sale of these premises under that mort- gage, upon which it is adjudged there was due at the time of the entry of the decree, in April last, the sum of $18,771.16. The petitioners claim that the Schenectady and Troy Rail Road Company entered upon and took possession of those lands under the right of eminent domain, as prescribed and regulated under the act of 1847, ch. 272, p. 301. That they attempted to ac- quire title in the manner required by law, but have failed, and that the title of the Schenectady and Troy Rail Road Company, ami cf the petitioners, is defective ; and the first question that presents itself for the consideration of the court is whether their title is defective or not. By the 13th section of the general rail road act,(a) it is pro- vided, that in case any company is unable to agree for the pnr- t hase of any real estate for the purposes of its incorporation, it shall have the right to acquire title to the same in the manner and by the special proceedings pointed out in the act. The 14th section prescribes what the petition shall contain, and among (a) Laws of 1850, ch. 140; 1 R. S. 4th ed. p. 1220. 42-1 CASES IN THE SUPREME COURT. Matter of the New York Central Rail Road Company other things " that the company has not been able to acquire title thereto, and the reason of such inability;" and it must state the liens or incumbrances upon said real estate, and the names of those who have estates or interests in said real estate ; and a copy of the petition with a notice is directed to be served on all persons whose interests are to be affected by the proceed- ings. The 15th section declares that on presenting such peti- tion, with proof of service of copy and notice, all persons whose estates or interests are to be affected may show cause against granting the prayer of the petition, and may disprove any of the facts alleged in it. And the court, after hearing the proofs and allegations of the parties, if no sufficient cause is shown against granting the prayer of the petition, shall make an order for the appointment of commissioners. The 21st section, under which the petitioners claim that they are entitled to the relief sought for, enacts, " that if at any time after an attempt to acquire title by appraisal of damages or otherwise, it shall be found that the title thereby attempted to be acquired is defective, the company may proceed anew to acquire or perfect such title, in the same manner as if no appraisal had been made ; and at any stage of such new proceedings, the court may authorize the corporation, if in possession, to continue in possession, and if not in posses- sion to take possession and use such real estate during the pendency and until the final conclusion of such new proceedings and may stay all actions or proceedings against the company on account thereof, on such company paying into court a sufficient sum. or giving security as the court may direct, to pay the com- pensation therefor when finally ascertained ; and in every such case the party interested in such real estate may conduct the proceedings to a conclusion, if the company delays or omits to prosecute the same." It is argued by the counsel in opposition, that the petitioners do not show that their title is defective within the meaning and legal construction of this section ; that a mere lien or mortgage does not affect the title ; and that the petitioners or the Sche- nectady and Troy Rail Road Company obtained the legal title through the conveyances from their grantors claiming to derive FRANKLIN SEPTEMBER, 1354. 495 Matter of the New York Central Rail Road Company. title under the sheriff 's deed ; that although that deed was ad- judged to be void for uncertainty, by the decision of the court of appeals, yet that all other proceedings connected with it hav- ing been regular, and the purchasers or grantees having entered into possession under it in good faith, claiming title, and they and their grantees and successors having been in such possession with such claim of title since 1831, a sufficient adverse posses- sion is created, and at all events such a one as will authorize a presumption of title and in the petitioners, so far as the heirs of Elias Kane are concerned. Without proceeding to examine the question whether such adverse possession is established or not, I am of opinion that the petitioners come within the provis- ions of the 21st section, and that the lien of the mortgage upon the premises described in schedule A, is one of the defects con- templated in that section. Why was it required in the 14th section, that all persons who have estates or interests in the real estate to which title is sought to be obtained shall be made parties and be named in the petition, and shall have notice of the proceedings 1 and in the 15th section, that proof should be made, on presenting the petition, of service of notice on all per- sons, whose estates or interests are to be affected by the pro- ceedings, and that such persons may show cause against the proceedings, as the counsel for Mr. Peck are now willing to do under that section ? Arid why does the 16th section require that the commissioners shall determine and report what compensa- tion shall be made to the party or parties owning or interested in the said real estate ; and why does section 18 declare that on a compliance by the company with all the provisions of the act, all persons who have been made parties to the proceedings shall be divested and barred of all right, estate and interest in said real estate during the corporate existence of the company 1 The answer to these questions, it appears to me, is plain. The object of the act undoubtedly was to enable the rail road com- pany to acquire perfect title to the real estate, upon which their road should be located, unincumbered by any lien of mortgage, judgment or otherwise. The 19th section provides, that if there are adverse and conflicting claimants to the money, or any part VOL. XX. 54 426 CASES IN THE SUPREME COURT. Matter of the New York Central Rail Road Company. of it, to be paid as compensation for the real estate taken, the court may direct the money to be paid into the said court by the company, and may determine who is entitled to the same, and direct to whom the same shall be paid, and may in its dis- cretion order a reference to ascertain the facts on which such determination and order are to be made ; that is, in cases of mortgages or judgments, it may order the moneys to be paid to the owners of them in preference to the owner, or holder of the legal title, or so much as shall be sufficient to satisfy those liens. It is not pretended but that if the holders of this mortgage had been made parties to an original proceeding if one had been instituted under the act, and the title had not been procured by agreement, the claim or lien of the mortgage would have been extinguished. But it is said that the bringing in in- cumbrancers is merely incidental to the proceedings against the owner of the title. The object, as just remarked, was to enable the company to procure perfect title, and to extinguish all liens upon the property. The 20th section says the court shall have power at any time to amend any defect or informality in any of the special proceedings under the act as may be necessary, or to cause new parties to be added, and to direct such further no- tices to be given to any party in. interest as it deems proper. It is said the holder of the mortgage has not such an interest in the land as is intended in the several sections of the act ; and that, unen forced, it cannot render the title defective. It is true that a mortgage may be assigned without delivery, and that pay- ment discharges it, and that an outstanding mortgage is not a breach of the covenant of seisin where there has been no fore- closure or entry. (16 John. R. 256. 7 id. 376.) Nor is it a transfer of title. But a mortgagee has such an interest in the land covered by the mortgage, that he may stay waste ; and that interest remains notwithstanding a transfer of the title by the mortgagor, and the intention of the act was to protect his lien as well as to provide for a good title to the company, by requiring him to be made a party to the proceedings, in order that he might receive the money arising from the appraisal, in preference to the mortgagor. If the land should be sold under FRANKLIN SEPTEMBER, 185*. 427 Matter of the New York Central Rail Road Company. ihe decree upon this mortgage, and bid off, there is no question out that the company could proceed under the 21st section against the purchaser. And are they obliged to wait, until the additional expense of a sale is incurred ? I think not ; but that they may proceed immediately, and on complying with all the provisions of the act, have their lien extinguished as to the pieces of land in their possession. t It is objected that the petition is defective in not showing an inability to agree for the extinguishment of the mortgage lien ; that no attempt to agree for a discharge of the lien is stated. The 16th section does not require the petition to state that the company has been unable to agree for the purchase, but that the company has not been able to acquire title to the land, and the reason for such inability. The petition states that the com- pany have not been able to obtain a perfect title for the causes stated in it. This is, I think, a sufficient compliance with the terms of the section. It is further objected that no proceedings can be had to perfect the title under the 21st section, unless there has been a previous appraisal. The words of the section are that, the party may proceed under it, " if at any time after an attempt to acquire title by appraisal of damages or otherwise, the title attempted to be acquired is defective." This language is sufficiently broad to include both cases, as well where the title is attempted to be procured by agreement and purchase, as by appraisal. It is still further objected, that the Schenectady and Troy Rail Road Company, by the exercise of ordinary diligence could before constructing their road have acquired actual knowledge of the mortgage by a search of the record. The mortgage was given and recorded in May. 1817. The titles were procured in 1841, more than twenty years after the date and recording of the mortgage. Searches usually do not extend beyond a period of twenty years ; and if they do, it is generally presumed that incumbrances of an earlier period are paid. It was supposed this mortgage was paid, or otherwise extinguished ; and the su- preme court dismissed the bill of foreclosure. I think the peti- tioners are not too late in applying for relief, after the decision 428 CASES IN TEE SUPREME COURT. Matter of the New York Central Rail Road Company. of the court of appeals declaring the validity and lien of the mortgage upon the premises. On the whole I am of opinion that the prayer of the petition should be granted, but that the commissioners should be appointed under the act of April, 1854, which provides for the appointment of three commissioners by tLe court, who reside in the county where the lands are situated, or some adjoining county. This conclusion is arrived at without reference to section 60. (1 R. S. 1242, 4th ed.; Laws c/1847, ch. 272, 3,) which was no. referred to by either party on the argument. That section provides for a case where a rail road company shall not have acquired a valid and sufficient title to any land upon which they have constructed their track, or where the title has been or shall be hereafter rendered invalid by reason of any mortgage, judg- ment or other lien ; and the section declares how the company may acquire title in such a case. It was insisted that if the court had jurisdiction to appoint commissioners, they would be bound to include in their appraise- ment the value of the improvements or "industrial accessions," inasmuch as the point was expressly passed upon and adjudi- cated by the court of appeals ; and it was suggested that the court, to prevent subsequent litigation, should direct the com- missioners to embrace the value of the improvements in their appraisement. I think the court, at this stage of the proceed- ings, have nothing to do.Avith that question. Section 16 prescribes the duties of the commissioners, and directs them to give notice to the parties when they will meet, and it directs them to hear the proofs and allegations of the parties, to reduce the testimony to writing, and make such com- pensation as shall be just. They are to make report of their proceedings, which report must be confirmed on notice, by the court, who may direct as to whom the moneys shall be paid. The appraisal must be made as the statute directs, and the court have no power to vary that direction. The motion must be granted, and John Willard, George G. Scott and Joseph W. Horton are appointed commissioners. The order must direct that all proceedings on the part of Charles FRANKLIN SEPTEMBER, 1854. 429 Pepper v. Haight. A. Peck, under his decree, to foreclose his mortgage, Le stayed as to the several parcels of land mentioned in the petition, until the further order of the court. [FRANKLIN GENERAL TERM, September 4, 1854. Hand, Cody, C. L. Allen and James, Justices.] PEPPER, administrator &c. vs. HAIGHT and others. A deed of conveyance, and a bond and mortgage executed by the grantee, to secure the payment of the purchase money, and bearing even date with the deed, form parts of one transaction, and are to be construed together, as one instrument. It is competent for a defendant to waive a technical legal defense grounded on an illegality in which he himself knowingly participated, and to affirm the contract so far as the parties to it were concerned. Objections may be urged, on an argument at a general term, which were not raised on the trial, if they are such as could not have been obviated at the trial. A defense that a mortgage is void, for being given upon an illegal consideration, will be waived by the omission to set it up specifically in the answer, and, by admitting the validity of the mortgage in the answer and on the trial. The sale of a pretended title to land is an illegal consideration. It is both crim- inal and immoral ; and a mortgage given for the purchase money is void. There is a distinction between contracts which are immoral and criminal and those that are merely void. Where the conti'act is simply void and not criminal, assistance may be given to a party to recover back his money, while the contract remains executory. Where money has been paid on an illegal contract which has been executed, and both parties are in pari delicto, neither of them can recover from the other the money so paid. A distinction also exists where the action is in affirmance of the contract, and the object is to enforce its performance, and where the action proceeds in disaf- flrmance of it. Where both parties are ecfually guilty, as where they make a contract which is illegal, because contrary to the provisions of a statute, or the general principles of public policy, the rule potior est conditio defendentis applies. The principle is that no court will lend its aid to a man upon an immoral or ille- gal contract not for the sake of the defendant, equally in fault with the plaintiff, and in whose mouth it does not lie to say the contract is immoral or illegal but because the court will not lend its aid to such a plaintiff. Where a mortgage contains a clause showing that a part of its consideration is the sale of certain premises in the possession of a third person and held ail- 36h 604 43k 215 430 CASES IN THE SUPREME COURT. Pepper v. Haight. versely by him, under a claim of title, the contract is directly in conflict with the statute prohibiting the sale of pretended titles, (2 R. S. 691, 6.) And both parties are guilty of a misdemeanor, and the contract is entirely void. Where the condition of a mortgage, given for the purchase money, stated that the title to a portion of the morgaged premises was in dispute, the land being claimed by a third person, and that the mortgagee had agreed to give a good title to such disputed part, and stipulated that if he failed to do so, before or at the time the first payment became due on the mortgage, the mortgagor should have the right to keep back from the mortgage moneys whatever sums he should have to pay to obtain a good title and possession of the disputed part of the premises ; Held that the covenant to give a good title was not a condition pre- cedent to the payment of the mortgage. When mutual covenants go to the whole consideration on both sides, they are mutual conditions, the one precedent to the other; but when the covenants go to only a part of the consideration, then a remedy lies on the covenant, to recover damages for a breach of it, but it is not a condition precedent. was an action brought by the plaintiff as administrator of -- Phillips, deceased, to foreclose a mortgage. The defendants Haight and wife alone defended. They set up that the mortgage was subject to a condition, which was recited in it, and in the answer. The condition, among other things, stated that Haight had, on the day of the date of the mort- gage. purchased of Phillips the premises described in it, being 101 3 acres of land. That from three to five acres of the land were in the possession of one Philip Ellsworth, and was claimed as the property of said Philip or the heirs of John C. Smith. That Phillips, when he bargained and sold, promised that he would give a good title to the disputed part of the premises to Haight, and would give quiet and peaceable posses- sion of the disputed premises free and clear of any expense. And it was agreed that if Phillips failed to give Haight a good and sufficient warranty title of the disputed part of the prem- ises, and quiet and peaceable possession, before or at the time the first payment became due on the mortgage, Haight should have the right to keep back from the moneys due or to become due on the mortgage whatever sum or sums of money he should have to pay to obtain a good and sufficient warranty title, and possession of the disputed part of the premises, with all costs nd expenses. That Phillips or his heirs had not performed FRANKLIN SEPTEMBER, 1854. 43] Pepper v. Haight. the conditions mentioned in the mortgage, and had not made, executed and delivered to Haight a good and sufficient war- ranty title deed, nor any deed, which conveyed to Haight a good and sufficient title in fee simple to said disputed lands, and had never put Haight into quiet and peaceable possession of them. That Haight had performed all the conditions on his part, and on the first of April, 1837, paid on the mortgage the sum of $280. and in April, 1839, the further sum of $140. That the dwelling houses, barns, out buildings, garden, well, &c., were all situated on the disputed land claimed by Ellsworth, and that in 1848 Ellsworth commenced an action in the supreme court against Haight to recover possesion of the last described lands and premises ; and that in January Haight was compelled to deliver up possession or pay Ellsworth $500, and $20 costs of suit ; for one acre of said disputed land on which said build- ings were situated. That except this one acre the whole of said disputed land had always remained in the possession of Ellsworth, who had refused to sell or deliver possession of the same. That Haight had expended a large sum of money in endeavoring to get title, amounting to $100. The reply denied the facts set up in the answer, and averred that EllsAvorth always remained in possession of the disputed part of the premises ever since the giving of the mortgage. That if Ellsworth ever commenced any suit against Haight it Avas not commenced in good faith but in collusion with Haight. The action was referred to John M. Carroll, Esq. to take the testimony and report to the court. The referee reported the testimony accompanied by a map showing the location of the premises. The greater part of them, including the house and barn and well, were situated southwest of a road marked on the map t; a a" and passing by the house. Phillips built this house and barn, while he occupied, and was in possession of all that part of the farm, until he sold to Haight, who succeeded him in possession. Phillips was in possession twenty years ago. The land on the north side of the road called the three or five acres had been a common for 20 or 25 years until Ellsworth bought the adjoining lot north of that piece, in 1834. In about t\\n 432 CASES IN THE SUPREME COIT.T. Pepper v. ITaight. years after, Ellsworth enclosed the piece north of the road witl\ his farm. It was marked on the map i, and called the three cornered piece. The defendants produced a doed from Hiram Dye to Ellsworth, dated 12 April. 1834. covering the 51 \ acres, which the defendants claimed was the disputed land, including the house, garden, barn and well south of road a a. Ellsworth after that deed, commenced an action in the supreme court, as he testified, against Haight, in good faith, to recover possession of the buildings and land south of the road a a, (about one acre,) and afterwards sold the land to Haight for $500, being about its value, as he said. The evidence of the commence- ment of the suit, by parol, was objected to by the plaintiffs, as not the best evidence, and it was received subject to the objec- tion. It appeared that the witness Ellsworth was the father- in-law of Haight. That he, (Ellsworth,) knew that Phillips lived on the land described in the mortgage, 25 or 30 years ago ; that he recollected when Phillips built the house and barn now occupied by Haight, and dug the well south of the road a a ; and built a fence in front along the road a a. That Haight went into possession of the same premises up to the road a a, and he and Byford had occupied them ever since. After Phillips came to the premises, Ellsworth occupied up to the road a. a. on the south, and Phillips up to the road on the north. It was proved that this road a a had been the divid- ing line between the premises in the possession of Phillips and those occupying on the other side, for 30 or 40 years, and had never been altered. Other testimony was taken, such of which as is material is alluded to in the opinion of the court. The plaintiffs, after the death of their testator, demanded on the prem- ises, the amount due on the bond and mortgage, offering to deduct out of what was due the value of the piece of land in possession of Ellsworth from the time of the date of the. mortgage ; which offer was refused. The judge at the trial, directed the referee to report the value of this piece of land, and ordered that sum to be deducted from the mortgage at its date, and judgment in favor of the plaintiffs fop the balance, with interest, after allowing all payments. The referee reported the value at $65, which FRANKLIN SEPTEMBER, 1854. 433 Pepper v. Haight. lie deducted accordingly, from the amount of the mortgage ($1780,) at its date, on the first of Nov. 1836, and reported the balance due, after allowing payments to the amount of about $340, to be $966.54 for which judgment was entered in favor of the plaintiffs and a sale of the premises ordered. From this judgment the defendants Haight and wife appealed. Dodge $f Campbell, for the plaintiffs. Win. Wait, for the defendants, Haight and wife. By the Court, C. L. ALLEN, J. The learned justice who tried the action, passed upon all the questions of fact, and as I un- derstand from reading the case, found that the piece of land designated in the mortgage as the disputed part of the premises, consisting of from three to five acres of land, was that part in possession of Philip Ellsworth at the time of the execution of the mortgage, and lying north of the road a a. I do not see how he could well come to any other conclusion. The words in the condition itself, recited in the mortgage, are that ''from 3 to 5 acres of said land is in the possession of one Philip Ells- icorth, and is claimed as the property of said Philip Ellsworth or the heirs of John C. Smith." Ellsworth himself swears, and it was also proved by other testimony, that Phillips built the house and barn south of the road a a, and was in pos- session of them until and when he conveyed to Haight, in 1836, who took immediate possession thereafter and had always been in possession; and that' Ellsworth never was in possession of any part south of the road a a, but only of the three cornered piece marked 6, north of that road, which had been the dividing line between the Phillips farm and the part north of it for more than 30 years. There can be little doubt, therefore, but that the disputed land referred to in the mort- gage was north of the road a a, and did not include the house and other buildings occupied by, and in possession of Phillips at the time of its date. The mortgage covers two certain pieces or parcels of land, particularly described in it ; one containing 49 acres and being part of lot No. 244, in the eastern allotment VOL. XX. 55 434 CASES IN THE SUPREME COURT. Pepper v. Haiyht. of Kingsborough, in Mayfield, and the other being part of lot r No. 242, in the same allotment, containing 522 acres. It was to secure the payment of the sum of $780, payable in install- ments, payment of which was to be made on the premises ; and payments had been made, at different times, of $280. It is conceded that it was given to secure a part of the purchase money of the premises. But no deed from Phillips was exhib- ited in evidence, and the defendants chose to rely upon the agreement, contained in the mortgage. It nowhere appears dis- tinctly, what the deed covered. From the recital in the mort- gage it would appear somewhat doubtful whether it included the 53 acres disputed land or not, for it is there stated that Phillips had promised " when he bargained and sold the prem- ises, that he would give a good title of the said disputed part, and would give quiet and peaceable possession of the said premises, free and clear of all expense ;" and if Phillips, his heirs and assigns should neglect and fail to give Haight a good and sufficient warranty title of the disputed premises, and quiet and peaceable possession, Haight was to be at liberty to hold back so much of the mortgage money as he should be compelled to pay to obtain and acquire such good title. The probability, however, is that the disputed part was conveyed, as it was in- cluded in the mortgage. But it was probably by a quitclaim, as no warranty deed is shown to have been given, and the breach alleged in the answer is, that Phillips, his heirs and assigns have not made, executed and delivered to Haight, his heirs and assigns, a good and sufficient warranty title deed, nor any deed which conveys to Haight a good and sufficient title in fee simple to said disputed land mentioned. The mortgage is all we have to rely upon for evidence, as before remarked ; arid that does not show that there was a warranty of title at the time of its execution ; on the contrary, if it proves any thing it shows that Phillips covenanted and agreed to procure and give such deed . thereafter. The statute, (1 R. 8. 738, 140,) expressly de- clares, that no covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants -or not. (11 Paige, 566.) FRANKLIN SEPTEMBER, 1854. 435 Pepper v. Haight. It is contended on the part of the defendants that the bond and mortgage in this case are. void, and that no action can be sustained upon them. It is probable, as before remarked, in- deed it is conceded, that the bond and mortgage were executed to secure a part of the purchase money of the premises de- scribed in the mortgage and which had been conveyed by deed of Phillips, bearing even date with the mortgage. All these instru- ments therefore form parts of one transaction, and are to be con- strued together as one instrument. (Cornell v. Todd, 2 Denio, 130. 1 Comst. 186. 10 Wend. 218, and various other cases.) The objection taken to this defense is, 1. That the defend- ants have not set up or pretended to any such defense in their answer, but on the contrary that the mortgage is, by the answer, admitted to be good and binding, and that the defendants claim to have made payments upon it, and ask other relief under it, and nowhere claim it to be void. 2. That they raised no such point on the trial before the justice, and are therefore not at liberty to present it here ; and 3. That the mortgage is perfectly valid as between Phillips and Haight. and all others, except the person in possession of the land holding under the adverse title. It is true, that the defendants in their answer do not pretend or claim that the mortgage is void, but rather confirm its va- lidity, and claim relief under it. This however may be said to be such relief as the court may consider them entitled to, pro- vided it be held that the mortgage is good. The question is, were the defendants bound to set up or aver in their answer that the contract was void, in order to enable them to avail themselves of such a defense ? As between themselves, parties may waive the defense which the law authorizes them to make ; and before the code they could be permitted to take the objec- tion or make the defense without special plea, under the general issue. Such was the case, for instance, as to the defense of usury. But since the adoption of the code, there is no longer, strictly speaking, any such plea as the general issue ; and there can be no answer, therefore, in that form. One object of the code, it has been remarked, was to compel parties to disclose 436 CASES IN THE SUPREME COUET. Pepper v. Haight. to each other the facts upon which they respectively relict! tc uphold the claim on one side and to maintain the defense on the other. (Report of Conors, 141.) And in Fay v. Wil- son, (10 Barb. 321,) it was held that the defense of usury, if the defendant intended to rely upon it, must be distinctly set out in the answer. (6 How. 302.) And on a sealed instrument the statute makes it necessary that the want of legality of con- sideration should be set out in the answer, if the defendant intends to rely upon it as a defense. (2 R. S. %d ed. 504, 96, 97.) The answer here not only does not claim that the mort- gage is void, but admits its validity and insists that the defend- ants have performed all the conditions required in it, on their part, and have paid several sums of money upon it. That they have been compelled to pay $500 to procure title to part of the disputed lands, and other expenses, which they claim to have deducted from its amount. Now if it be conceded that it was not necessary specifically to set up this defense in the answer, (which I am not prepared to concede.) still it was competent fur the defendants to waive a technical legal defense grounded on an illegality in which they themselves knowingly participated, and to affirm the contract so far as the parties to it were con- cerned. It is true the law will always leave them where it finds them, and not assist either, where the rights of third per- sons do not require an interference. But they may carry out their own agreements, subject to all liability which they incur, criminally or otherwise, if they do not call upon the courts to aid them. And I do not perceive why. as against each other, they may not waive any defense grounded upon their own tur- pitude in part, as it has repeatedly been held they may waive the defense of usury. Again ; the defendants not only omitted to set up this de- fense in their answer but they did not claim or interpose it upon the trial of the cause. This is another evidence of wai- ver. The exception, it is true, to the decision of the court, embraces this objection ; but it does not appear to have been presented on the trial, or passed upon by the judge, That, perhaps, was not necessary, to prevent its being present- FRANKLIN SEPTEMBER, 1854. 437 Pepper v. Haight. id here, if the answer was sufficient. Objections may be urged on- the argument at general term which were not raised on the trial, if they are such as could not have been obviated at the trial. (5 Wend. 301. 20 id. 210. 16 id. 522.) If the mortgage was void, then the objection could not have been answered at the circuit, any more than it could have been here. But some additional evidence might have been given, going to show that the case was not strictly within the statute. I am inclined to the opinion that the defense, was waived, by not specifically setting it up, and admitting the validity of the mort- gage in the answer, and on the trial. Suppose, however, that the objection may be taken here, is it fatal to this objection ? There is no doubt but that the consideration of the bond and mortgage was the conveyance of the mortgaged premises. This was an entire consideration, and if it was in part illegal, is not the whole contract void ? (Chit, on Cont. 425. Bart v. Place, 6 Cowen, 431. Mackie v. Cairns, 5 id. 548/580. Hi/slop v. Clark, 14 John. 458. 13 Wend. 53. 20 id. 390. Nellis v. Clark, 4 Hill, 424.) We have recently so held in the case of Barton v. The Port Jackson and Union Falls Plank Road Co., (17 Barb. 397.) In Woodworth v. Janes, (2 John. Cos. 417,) this principle was applied to a sale of land, and it was held, in the court of errors, where A. executed to B. a quitclaim deed for land, claimed by the state of Pennsylvania, and received the notes of B. in payment, on a bill filed to obtain an injunction to stay the collection of the notes, that the sale was maintenance in selling a pretended title, and that both parties being in pari delicto, a court of equity would not relieve either, but leave them to pursue their remedies at law, and the bill was dismissed. In Whittaker v. Cone, same volume, p. 58, the supreme court decided that where notes were given for the purchase money on a contract for the sale and purchase of Susquehanna lands, within the jurisdiction of Pennsylvania under the Connecticut claim to those lands, the sale was illegal and the consideration void. The 6th section of the statute (2 R. S. 691) declares it to be a misdemeanor for any person to buy or sell, or in any manner procure or make or take any promise or covenant to convey any 43.8 OASES IN TEE SUPKEME COURT. Pepper v. Haight. pretended right or title to any lands or tenements, unless the grantor thereof, or the person making such promise, shall have been in possession of the same, or of the reversion or remainder, or have taken the rents and profits thereof for one whole year before such grant, conveyance or promise. The sale of a pre- tended title to land is therefore an illegal consideration ; it is both criminal and immoral. There is a distinction undoubtedly between contracts which are immoral and criminal and those that are merely void. Where the contract is simply void and not criminal, assistance may be given to a party to recover back his money, where the contract remains executory. Where money has been paid on an illegal contract which has been executed, and both parties are in pari delicto, neither of them can recover from the other the money so paid. A distinction exists where the action is in affirmance of the contract and the object is to en- force its performance, and where the action proceeds in disaffirm- ance of it. (4 Barb, 524, 527, and cases there cited.} Where both parties are equally guilty, as where they make a contract which is illegal, because against the provisions of a statute, or the general principles of public policy, the rule " potior esi conditio defendant is" applies. (4 Hill, 624. 20 Wend. 26. 20 John. 386.) The principle is that no court will lend its aid to a man upon an immoral or illegal contract, not for the sake of the defendant, equally in fault with the plaintiff, and in whose mouth it illy lies to say the contract is immoral or illegal, but because the eourt will not lend its aid to such a plaintiff. (20 Wend. 32.) 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. It will leave the parties where it finds them. (See Perkins v. Savage, 15 Wend. 412 ; 7 Paige, 616, 653.) Now test the facts in the case under consideration with those principles and decisions, and to what conclusion must we arrive ? The mortgage given in evidence by the plaintiff contains a clause showing that part of its consideration was the sale of certain premises in " the possession of Philip Ellsworth and claimed us FBA3KLIN SEPTEMBER, 1854. 439 Pepper v. Haight. the property of Ellsworth or the heirs of John C. Smith ; held adversely, or stated to be the disputed part of the premises " thus sold and conveyed ; coming directly in conflict with the provisions of the section of the statute before cited, and making both parties guilty of a misdemeanor, and the act or contract itself entirely void ; and being in part only executed, it cannot be farther enforced by either party as against the other. It is said that being under another section of the statute, declaring (1 R. S. 739. 147, [160,] 4th ed. 169) that every grant of land shall be absolutely void, if at the time of the delivery thereof such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor, the conveyance and contract was only void as to the person holding adversely, and not as between grantor and grantee. In Livingston v. Prosens, (2 Hill, 526, 528,) it is said to be well settled that as between grantor and grantee and persons standing in legal privity with them, the deed is operative and passes the title ; and a great number of cases are there cited in support of the principle. The case of Van Hoesen v. Ben/iam, (15 Wend. 164,) de- cides that a deed of land held adversely at the time is effectual between the parties to the conveyance ; that the deed ope- rates to estop the grantor ; that it is a principle running through the books, that a feoffment upon maintenance or champerty is good as between feoffor and feoffee, and is only void against him who hath right. It has been before remarked that there was no warranty of title and no eviction, and there has been a payment of a part of the purchase money. Under those circumstances the mortgagor cannot be relieved from proceedings on the mortgage. (Abbott v. Allen, 2 John. Ch. 519. Bumpus v. Plainer, 1 id. 213.) I do not however agree with the counsel for the defendants, that the covenant in the mortgage, to give a good title, was a condition precedent to the payment of the mortgage. It was clearly not so intended by the parties. The defendant Haight made payments on the mortgage. By the provision in it Haight was to be entitled to keep back sufficient to indemnify him for any moneys he should be compelled to pay to procure good title 440 CASES IN THE SUPREME COURT. Pepper v. Haight. to the disputed part. Where a covenant only goes to part of the consideration on both sides, and a breach of the covenant may be paid for in damages, it is an independent covenant, and an action may be maintained without averring performance. (Grant v. Johnson, 5 Barb. 161.) Where mutual covenants go to the whole consideration on both sides, they are mutual conditions, the one precedent to the other ; but when the cove- nants go to only a part of the consideration, then a remedy lies on the covenant, to recover damages for a breach of it, but it is not a condition precedent. If the defendants were entitled to have any thing deducted from the amount due on the mortgage, it would only be the value of that- part of the premises in possession of Ellsworth. It has been before shown, that Phillips had been in possession of all the premises up to the road a a, before the deed to Ellsworth from Dye covering the house, barn and well south of that road. That deed was certainly void if the one from Phillips to the defendants was, and for the same reasons. The contract only recites that part which was in possession of Ellsworth as the disputed land, and cannot be construed to include any other part. The defend- ants have never been lawfully evicted from any part south of the road a a. It is true that Ellsworth, the father-in-law of Haight, testifies that he commenced an action in the supreme court against Haight to recover the one acre on which the buildings were ; that there was no legal evidence of any action having been commenced ; and Haight never gave any notice to Phillips that such action had been commenced, but proceeded on his own responsibility and risk to pay Ellsworth for his pretended title, without at all consulting Phillips. The evidence, so far from establishing any title in Ellsworth, under the deed from Dye, showed that deed to have been entirely void at the time of its execution, and that Ellsworth would not have been entitled to recover against Haight in the action which he brought against him. Ilaight therefore settled that action and paid the money in his own wrong. He had no right to judge of the sufficiency of Ellsworth's title. He should have defended the action, or given notice to Phillips or his heirs, to defend. He did neither WASHINGTON JANUARY, 1855. . 44] Hall v. Fisher. but quietly submitted to. the terms imposed by Ellsworth, and the probability is that it was a contrivance between Haight and his father-in-law to have this claim set up by Ellsworth and allowed by Haight for the purpose of swallowing the amount due on the mortgage. I do not say that the judge so found the fact, but I think he would have been warranted in so doing, from all the evidence. Haight went into possession of the mortgaged premises at the time of the execution of the mortgage, and has remained in possession ever since, except as to the part north of the road a a, of which he has never been in possession. The value of that part, however, has been deducted from the amount of the mortgage. On the whole, I am of the opinion that if the contract is to be deemed legal, the action was properly disposed of at the cir- cuit, and that the judgment should be affirmed. Judgment affirmed. [FRANKLIN GENERAL TERM, September 4, 1854. Hand, Cody, C. L. Allen *nd James, Justices.] ELIPHALET HALL, who sues in his own right as well as admin- istrator &c. of Ephraim Hall deceased, vs. AUSTIN FISHER and others, executors &c. of Henry Fisher deceased. A complaint filed by a plaintiff in his own right as well as in the character of administrator of E. H., against the defendants as the executors of H. F., alleged that the plaintiff and his intestate E. H. were in the lifetime of the latter, ten- ants in common owning one undivided quarter with H. F. in his lifetime, who owned three quarters, of a lot of land, and iron ore bed, &c. And the plain- tiff claimed that the defendants should account to him in person and as administrator of E. H., for their share of the rents and profits, avails and in- come of the ore bed &c., and for their share of the ore dug and raised by II. F., and for their share of the moneys had and received by H. F., including what he ought to have received for the use, rents and profits of the improvements, buildings, fixtures and erections of the plaintiff and E. H., and for the wear and damage of the same &c., and for the loss, damage and injury sustained by the VOL. XX. 56 442 CASES IN TEE SUPREME COURT. Hall v. Fisher. plaintiff and E. H. by reason of the acts done ] y II. F. while in the exclusive possession, &c. Held, on demurrer, that there was an improper joinder of claims in the complaint, in attempting to unite the rights of the plaintiff per- sonally with those in his representative character ; the claims being inconsistent and adverse. The same complaint, in addition to a claim for an account, after setting out the title of the plaintiff and his intestate, to one quarter of the lot and ore bed, and showing large and valuable erections and fixtures made by them, averred that H. F., contriving and intending to injure and defraud the plaintiff and E. II.. and falsely pretending that they were not the owners of one-fourth part of said lot and ore bed, but that he was sole owner thereof, procured an injunction, and caused the same to be served on the plaintiff and E. H., restraining them from digging or raising any iron ore on said lot &c., and by means of such service thereof occasioned all the damages which the plaintiff alleged were sustained. The plaintiff also claimed to recover damages for trespass on houses, erections and fixtures which the plaintiff and E. H. erected, at an ex- pense of $5000, and for their share of the expense of those erections. The complaint also alleged that II. F. diverted to his own use a quantity of ore dug and raised by the plaintiff and E. H. ; and that he received $20,000 profits, and might with proper management, have received $20,000 more. Held that the complaint was defective in joining causes of action arising upon contract, with claims of damages for injuries to property and for torts and causes of action arising from negligence, with a claim for an account of rents and profits of real estate. Held also, that the falsely and fraudulently obtaining an injunction, and the dam- ages occasioned by its service, were not a matter of account, and formed no ground for a bill in equity or an action under the statute. (1 R. S. 750, 9.) The bond given by the party obtaining an injunction affords an ample remedy for any damages sustained by the defendant, and to an action upon such bond he must resort for indemnity An action for malicious prosecution will not lie until the final termination of the suit ; and the complaint must allege a want of probable cause, by averring that the suit was finally determined in favor of the defendant therein. TIlHIS was an appeal from an order made at a special term, JL allowing a demurrer to the complaint. The plaintiff aver- red that on, and for a long time previous to the 12th of June, J845, the plaintiff and his intestate Avere seised and possessed as tenants in common in fee simple, in their own right, of the one equal undivided fourth part of an iron ore bed on lot No. 42 of the iron ore tract in the county of Essex and state of New York, together with all the privileges appertaining thereto, and of all necessary timber and utensils on the lot, necessary to use. WASHINGTON JANUARY, 1855. 443 Hall v. Fisher. n digging and carrying away the ore. That Henry Fisher, the defendant's intestate was, at and during the same time, the owner and possessor of the remaining three-fourths of the said lot and the ore rights and privileges, as tenant in common with the plaintiff and his intestate ; that a very valuable mine or bed of iron ore was situated on said lot, which during the said time was worked by the said Halls and returned to them for their share thereof an annual value of $10,000 and upwards. That said Halls, previous to and on said 12th day of June, 1845, had expended $10,000 in opening and uncovering the bed and in working it, and had also expended $5000 and upwards in erect- ing and putting up shops, dwelling houses, barns, scales, coal houses and various other erections and fixtures for their neces- sary use in enjoying and availing themselves of the benefits, rights and privileges of the said lot. The complaint further averred that the said Henry Fisher, on the said 12th day of June, 1845. contriving and intending to injure and defraud the said Halls, and falsely pretending that they were not the owners of one-fourth part of said ore and said rights and privileges, but that said Fisher was the sole owner thereof, procured and caused to be served on the said Halls, an injunction out of the (then) court of chancery of the state of New York, enjoining and com- manding the said Halls and their agents and servants to desist and refrain from digging or raising any iron ore on said lot 42, or from taking and carrying away, or selling, any ore raised or dug thereon since the 1st day of May, 1845, or from cutting any timber, or collecting any claims or debts, or discharging any, on account of ore dug since that day. That at the time of the ser- vice of said injunction the said Halls had on hand on and near said lot 42, one thousand tons of iron ore, of the value of $3000, which they had raised from said bed between the 1st of. May, 1845, and the issuing and service of said injunction, which they were entitled to use and sell, but which, by reason of said injunc- tion they were wholly prohibited from selling or using, and the same was taken possession of by said Fisher, and by him con- verted to his own use, or by his negligence wasted and destroyed, and said Halls never recovered possession ot the same. That 444 OASES IN THE SUPREME COURT. Hall v. Fisher. there were divers debts due the said Hulls, for ore raised, which they were prevented by said injunction from collecting, whereby many of them became bad and uncollectable, and entirely lost ; especially a debt against one Chester Stephens of $300, for iron ore dug by him, who, while said injunction was pending, became insolvent and the said debt became lost. That said Halls were also deprived of the privilege of digging ore and of the benefit of their expenditure and labor in uncovering and opening the said ore bed, and deprived of the use and benefit of their build- ings, erections and fixtures, and the said Henry Fisher took the sole and exclusive possession of the said ore bed with the appur- tenances, and of all the rights and privileges of the said Halls, and of the buildings and erections, and of the ore on hand dtfg and raised since the said 1st day of Ma} r , 1845, and wholly excluded the said Halls therefrom, and so held them exclusively till the 18th of May, 1847, at which time the said Henry Fisher died, having first made and published his last will and testament, and appointed the defendants his executors, which will was, after his death, proved, and letters testamentary granted to the de- fendants as executors, by the surrogate of the county of Essex, on the 3d of June, 1847. The complaint further averred, that while said Henry Fisher held and retained the sole use and occu- pation as aforesaid he received to his own use the whole of the profits and income of the said bed &o.. amounting to the sum of $20.000, one-fourth of which belonged to the said Halls, for which the defendants ought to account ; and that said Henry injured and damaged the improvements and buildings &c. erect- ed by said Halls, by carelessness, negligence and improper usage, to the value of $1000, and while he used and held the same might have realized, by proper management thereof, a fur- ther sum of $20.000. to one-fourth of which said Halls would have been entitled ; all of which was lost by reason of the im- proper management of the said Henry and his agents, and whereby the said Halls, on regaining possession of said ore beds, were put to the expense of $500 in replacing the same on its former footing, and lost other $500 by the hindrance and delay occasioned by the necessary repairs ; for all which the defend- WASHINGTON JANUARY, 1855. 445 Hall v. Fisher. ants ought to account. The complaint further averred, that since the death of the said Henry Fisher the said Ephraiin Hall died intestate, and letters of administration on his estate were granted by the county judge of Essex county to the plaintiff. That after the death of Fisher and before the death of the said Ephraim Hall, the said injunction was dissolved, and possession of the said lot and beds and all their rights and privileges re- stored to the said Halls. The plaintiff claimed that by occasion of the premises the said Henry Fisher became liable to account to the Halls for their share of the use, rents and profits of the ore beds, and for their share of the moneys received by him, and for the other profits which he might have received by proper management, and for the use of the buildings, erections and fix- tures, and their wear and damage as aforesaid, and for the inju- ries occasioned thereto, and for the ore dug and raised by said Halls between said 1st day of May, 1845, and the service of the injunction, and for all losses, damages and injuries by the said Halls sustained ; and that the defendants were liable as execu tors &c. to account to the plaintiff in his own right and as ad- ministrator of the said Ephraim, jointly, for such sums as might be proved due from said estate of said Henry upon such account- ing, on occasion of the premises. And they prayed that an ac- count might be decreed on these principles. The defendant Calvin Fisher demurred to the complaint, for the following causes : .1. That there was a defect of parties plaintiff to the action. 2. That several causes of action had been improperly united in the same complaint. 3. That the plaintiff had improperly in his complaint alleged causes of action existing in his own right, with claims made by him in the capacity of administrator, &c. 4. That the plaintiff had also improperly united in his complaint alleged causes of action aris- ing upon contract express or implied, with claims of damages for injuries with or without force, to property. 5. That the plaintiff had improperly united alleged causes of action in his complaint arising from negligence, with claims for an account for rents and profits of real property. 6. That the causes of action united in the complaint did not all belong to one class arid 446 OASES IN THE SUPREME COURT. Hall v. Fisher. were not separately stated. 7. That the complaint did not state facts sufficient to constitute a cause of action. The court, at special term, ordered judgment for the defend- ants, on the demurrer, and the plaintiff appealed to the general term. Kellogg fy Hale and G. A. Simmons, for the plaintiff. B. <$* A. Pond, for the defendants. By the Court, C. L. ALLEN, J. I am inclined to think there is an improper joinder of claims, by attempting to unite the rights of the plaintiff personally with those in his repre- sentative character as administrator of Ephraim Hall. The two Halls, as charged in the complaint, were tenants in common owning one quarter, with the defendants' testator, who owned three-fourths, of the lot and the ore bed. The claim is that the defendants account to the plaintiff in person and as such admin- istrator, for their share of the rents and profits, avails and in- come of the ore bed, rights and privileges while their testator held the exclusive possession thereof, and for their share of the ore dug and raised by said Henry from the land during that time, and for their share af the moneys had and received, in- cluding what said Henry ought to have received for the use, rents and profits of the improvements, buildings, fixtures and erections of the said Halls, and for the wear and damage of the same, and for the injury and obstructions to the use of said ore bed, and for the ore so dug and raised by the Halls between the 1st of May, 1845, and the issuing and service of the injunction, and for the debts which the Halls lost, and for all and singular the lost, damage and injury which the said Halls sustained bj occasion of the premises, of every nature soever. The amount due to each tenant in common from his co-tenant, is a several debt to himself alone, (4 Paige, 363,) and not to the tenants or a portion of them jointly. The rights and claims attempted to be united are inconsistent and adverse. (Alston v. Jones, 3 Barb. Ch. It. 397.) But the plaintiff alleges that this is an WASHINGTON JANUARY, 1855. 447 Hall v. Fisher. action for an accounting, and that all parties interested should be made parties to the suit, so that there need to be but one ac- counting. If this be so, then the causes of action or claims should be separately stated. How else can the defendant, if he has a defense of a different character against each co-ten- ant, avail himself of such defenses? He might in this case have one defense against the plaintiff as to his personal claim, and another defense as to the intestate whose rights he claims to represent as administrator. The statement of the causes should have been separate and distinct. (Code, 167, sub. 7. 4 How. 226. 5 id. 171, 177. 8 id. 177. Brady fy Ellsworth v. Lock- wood, MS.) . But however this may be, I am of opinion that several causes of action have been improperly united in the complaint. The plaintiff claims that the- action is for an accounting, against a co-tenant in common, for receiving more than his proportion of the common property. But it is more. The complaint, after setting out the title of the plaintiff and his intestate to one quarter of lot 42 and the ore bed thereon, and showing large and valuable erections and fixtures made by the Halls for their ben- efit and to enable them to enjoy and work the property, avers that on or about the 12th day of June, 1848, the said Henry Fisher, contriving and intending to injure and defraud the said Halls, nrv\ falsely pretending- that the said Halls were not the owners of a quarter part of said ore and lot, but that he was sole owner thereof, procured an injunction in the manner stated in the complaint, and by means of its service occasioned all the damn ges which the plaintiff alleges were sustained. This is not matter of account, and no bill in equity or an action under 1 R. S. 750, 9, could be sustained upon it. The falsely and fraudulently obtaining this process, and the consequences arising out of its service, seem to form the principal part of the com- plaint. They are the gravamen of the action. The action of account should be founded upon a relation in the nature of a trust. (8 Hill, 60.) The bond required to be given, and which was given at the time of obtaining the injunction, afforded, as it was designed to do. an ample remedy for these damages, and to 418 CASES IN THE SUPREME COURT, Hall v. Fisher. an action upon that the plaintiff should have resorted. If this were to be called partly an action for a malicious prosecution and it would seem to be so. from the nature of the complaint then it would not lie until the final termination of the suit. The complaint does not allege that the suit has terminated, but only that the injunction was dissolved. It should allege want of probable cause, by averring that the suit was finally deter- mined in favor of .the defendant therein. A claim founded in tort is also united in the complaint, for diverting to his own use by the said Henry Fisher 1000 tons of ore dug and raised by the Halls before the service of the injunction. Another claim is for trespasston houses, erections and fixtures which the Halls erected at an expense of $ 000, before the ser- vice of the injunction, and the claim for their share of this ex- pense is also added. It is not averred on what land, or where, these erections were made ; but the defendant's intestate is charged with wrongfully taking possession of, and using and in- juring them by his carelessness and negligence, as well as the ore bed. The plaintiff also claims that said Henry Fisher received $20,000 profits, and might with proper management have re- ceived ."$20,000 more. Now a tenant in common is not liable for negligence or misuse of the common property, nor for what he might have made by diligence, unless appointed bailiff, (fee. (Henderson v. Eason, 9 Eng. Law and Eq. Rep. 337.) It is said by the plaintiff's counsel that there is but one cause of action, and that all the claims are but parts of one and the same establishment, and incidents of the tenancy in common and of the mining business. But all these are promiscuously stated and jumbled together, arid they do not all belong to one of the classes mentioned in the several subdivisions of section 167. It may be questionable, since the decision in Tripp v. Riley, (15 Barb. 333,) whether Henry Fisher could be chargeable and liable to account in this action, unless it was averred and shown that he had received more than his share (three-fourths) of the ore bed. But it is not necessary to pass upon that point, here. Without further examination I can only say that I fully con- SCHENECTAPY MAY, 1855. I- 449 McMillan v. Saratoga and Washington Rail Road Co. cur-with the learned justice who delivered the opinion at special term, and in the views there expressed. The order must be affirmed, with $10 costs. [WASHINGTON GENERAL TERM, January 1, 1855. Hand, Cady, C. L. Allen and James, Justices.] McMiLLAN, adm'x, &c. vs. THE SARATOGA AND WASHING- TON RAIL ROAD COMPANY. Where, in an action against a rail road company, the complaint, after stating that the defendants were an organized company and the owners of the road, and were running it, averred that on, &c. while they were so running the road, the plaintiff's intestate was in the employ of the defendants, as an engineer upon their locomotive, while it was in their use and service ; Held that this was a sufficient allegation to show that the relation of master and servant ex- isted between the parties. Bnt no special contract between the principal and agent is to be inferred from such an allegation. A servant, to be entitled to recover of his principal for an injury happening to him in the course of his service, through defects in the machinery &c. used in the discharge of his duties, must prove actual notice to his principal of the defects. And in order to be able to prove notice, he must allege it in his complaint. Thus where a complaint alleged that W. S. M., the plaintiff's intestate, was in the defendants' employ as engineer upon a locomotive used and running upon their rail road ; that it was the duty of the defendants to provide a good, safe and secure locomotive &c., and a good, safe and secure track, and to keep the same in good repair, and to build, maintain and keep in good repair all necessary bridges, fences and cattle-guards, but that they, not regarding their duty, wrongfully and negligently provided, used and suffered to be used, an unsafe, defective and insecure locomotive, and failed and refused to provide a good, safe and secure track and road, or to keep the road in good repair, and neg- lected to build, maintain and keep in good repair all necessary bridges, fences and cattle-guards ; that through a defect in the fence Which it was the duty of the defendants to maintain and keep in good repair, a horse got upon the track from an adjoining lot, without any fault of W. S. M., and in conse- quence of the defendants' neglect to provide proper cattle-guards, ran over the road until he came to a bridge, where the locomotive struck the horse ; and the locomotive was thrown off the track and W. S. M. was killed ; it wait VOL. XX. 57 450 ' CASES IN THE SUPREME COURT. McMillan v. Saratoga and Washington Rail Road Co. held, on demurrer, that the complaint was defective, in not averring actual notice. to the defendants, of the defects occasioning the injury, or some of them. It is the duty of afi engineer, emplojed in running a locomotive upon a rail road, and it is confided to him by his employers, to guard against all accidents liable to happen by the escape of horses or other animals, upon the track, through a defect of fences, or otherwise. Hence he is bound to make known to the rail road company any defects of that nature which may exist. So in respect to any defects in the locomotive. And for not making them known he is responsible to the public as well as the company. He may require special indemnity against all risks, or he may give notice to the company and throw the risk upon them. THIS was an appeal from an order made at a special term, sustaining a demurrer to the complaint. That pleading averred that the defendants were, at the time of the injury com- plained of, a corporation duly organized, &c. That they were, at the said time, the owners and operators of a rail road, run- ning from Saratoga Springs to Whitehall, and that they ran upon said road a certain locomotive. That on the 2d day of December, 1853, W. C. McMillan, the plaintiff's intestate, was .n the defendants' employ as engineer, upon said locomotive, " and it then and there became and was the duty of the defend- ants to provide a good, safe and secure locomotive, with good, safe and secure machinery, and to provide a good, safe and secure track," and to keep the same in good repair, and to build, maintain and keep in good repair all necessary bridges, and also all fences on both sides of their road, and sufficient cattle-guards, at all road and farm crossings. The complaint then averred that the defendants, not regarding their said duty, "wrongful ly conducted themselves so carelessly, negligently and un- skillfully in that behalf, that by and through such wrongful care lessness, negligence and unskillfulness and default of the de- fondants they provided, used and suffered tobe used, an unsafe, defective and insecure locomotive on the said road, and wholly failed and refused to provide a good, safe and secure track and road, and neglected to keep their said road in good repair, and neglected to build, maintain aud keep in good repair all neces sary bridges, and also the fences, on both sides of the road SCIIENECTADT MAT, 1855. 451 McMillan v. Saratoga and Washington Rail Road Co. and neglected to maintain cattle-guards at all road and farm crossings. The complaint then further averred that on the 2d of Decem- ber, 1853, while the said locomotive was being run by the plain- tiff's intestate in the capacity of engineer for the defend- ants, and in their employ, a horse that was in one of the lots contiguous to and adjoining said rail road, through and in con- sequence of a defect in the fence, between said lot and the rail road, which it was the duty of the defendants to maintain ana keep in good repair, escaped into and upon the track of tht road, and while on the road, without any fault of the said W. S. McMillan as such engineer or otherwise, was run down by said locomotive upon which the said W. S. McMillan then was ; anr* that in consequence of the neglect of the said defendants to pro- vide proper cattle-guards upon and over said road at the plac< aforesaid, the said horse was enabled to run over said road, until he reached a bridge over which the road passed, where said loco motive struck said horse. That in consequence of said defend- ants neglecting to maintain and keep said bridge in goo< repair, the same was unable to withstand the shock occasione< by the collision, and the horse and locomotive were thrown oft' the track on said bridge and the locomotive entirely destroyed that the cow-catcher of the locomotive was out of repair, a were the track and road also, owing to the negligence of sai defendants, and that the locomotive was precipitated into the canal, and in falling struck the plaintiff's intestate and killed him. The complaint then averred that the plaintiff was the wife of the engineer and had been duly constituted administra- trix, since his death, and brought her action under the statute, to recover her damages. The defendants demurred to the complaint, and stated several grounds of demurrer, which are noticed, so far as is necessary, in the opinion of the court. A. Pond and C. S. Lester, for the plaintiff. W. L F. Warren, for the defendants. 4/52 CASES IN THE SUPREME COURT. McMillan v. Saratoga and Washington Rail Road Co. By the Court, C. L. ALLEN, J. The first ground upon which the demurrer in this case is predicated is, that the com- plaint does not set forth facts sufficient to constitute a cause of action. The complaint, after stating that the defendants were an organized company and the owners of the road, and were run- ning it, avers that on the 2d day of December, 1853, while they were so running the road, the plaintiff's intestate was in the employ of the defendants as an engineer upon their locomotive, ufdle it was in their use and service on that day. This is a sufficient allegation to show that the relation of master and ser- vant existed between the parties. At all events it shows that McMillan was lawfully on the road on that occasion, at the re- quest of the defendants, and as their servant actually engaged in conducting the locomotive at the time of the happening of the injury complained of. The duty is created by law, and the gen- eral allegation, I think, is sufficient. It maybe said, it is true, that this is the rule as between the company and third persons, but that a different rule prevails as between master* and servant, where particular accidents or mishaps may be guarded against by special contract. (Story on Agency, 453, e. 3 Seld. 498.) But in the view I have taken of another point it will not be necessary further to consider this position, at the present time. No special contract, however, between the principal and agent is to be inferred from such an allegation. . The great question is, whether the plaintiff should have aver- red actual notice to the defendants, of the defects complained of, or some of them. In Keegan v-. The Western Rail Road Corporation, (4 Seld. 175,) Ch. J. Ruggles, in" delivering the opinion of the court of appeals, says that " the cases in which it has been held that a principal is not liable to one agent or servant for an injury sustained by him in consequence of the misfeasance or negligence of another agent or servant of the same principal while engaged in the same general business, were not applicable to the case then under consideration. Thai they were only applicable where the injury complained of hap- pened withodt any actual fault or misconduct of the company, either in the act which caused 4he injury or in the selection 01 SCHENECTADY MAY, 1855. 4.53 McMillan v. Saratoga and Washington Rail Road Co. employment of the agent by whose fault it did happen. That whenever the injury results from the actual negligence or mis- feasance of the principal he is liable, as well in the case of one of his servants as in any other." He further remarks that in the case of third persons, the actual fault of the agent is im- puted to the principal on grounds of public policy, but that it was unnecessary to dwell upon the reasons, because the ref- eree had found, as matter of fact, that the injury resulted directly from the negligence or misconduct of the defendants themselves, in continuing to use the engine having a defective and dangerous boiler, after notice of its dangerous condition. It will be perceived that the court lay great stress, and seem to base their opinion, upon the fact found, that notice had been given to the company of the defects in the boiler. The referee reported that during the two months preceding the explosion the engineer of the locomotive had reported to the defendants, on five or six different occasions, the defective condition of the boiler, and that those defects were entered on the books of the defendants kept for that purpose. Upon this state of facts, it was very properly urged and insisted, upon the argument, that the defendants having persisted in running the engine under circumstances showing an utter blindness to every thing except their own pecuniary profit, were guilty not only of negligence but intentional wrong ; it was an act dangerous to human life, and knowingly done. Knowledge was considered one of the essential elements necessary to maintain the action. And why has this difference in the rule between strangers and servants obtained, from the earliest cases down? The reason, says Story, in his treatise on Agency, 453, d. and e., is that " the mere relation of master and servant, or principal and agent, creates no contract, and therefore no duty on the part of the principal. In such cases the servant takes upon himself the hazard of an injury which may arise in the course of his busi- ness or employment. The master is no doubt bound to provide for the safety of his servant in the course of his employment, to the best of his judgment, information and belief. But the servant is not bound to risk his safety in the service of his 454 CASES m THE SUPREME COURT. McMillan v. Saratoga and Washington Rail Road Co. master, and may if he thinks fit, decline any service in which he may have reason to apprehend injury t ) himself. And in most of the cases in which danger may be incurred, if not in all, he is. just as likely to be acquainted with the probability and extent of it, as the master." These remarks I consider as peculiarly appropriate to the present case. The plaintiff's intestate was the engineer upon the very locomotive which contained the defects complained of. It was his duty to have made known the defects to the compa- ny, as in the case of Kcegan v. The Western Rail Road Cor- poration. He Avas responsible as well to the public as the company, for not making them knoAvn. It was his duty, and it was confided to him by his employers, to guard against all acci- dents liable to happen by the escape of horses or other animals upon the track, through the defect of fences or otherwise. He Avould be more likely to know of occasional defects in fences or cattle-guards or bridges than the company or their officers elsewhere located. He Avas bound at all times to exercise all diligence and caution against the happening of accidents, and to thus protect himself as Avell as his passengers and the prop- erty intrusted to his care. He had the knoAvledge, or the means of knoAvledge, Avithin his OAvn pOAver. He might have required special indemnity against all risks, or he might have given notice to the company and have throAvn the risk upon them. (3 Mees. $ Wels. 1. Story on Agency, 451 d, e Parsons on Contracts. 528.) " The master," says the latter. "is not responsible for an accident happening in the course of his service, unless the master kneAv that it exposed the servant to peculiar danger, and the servant did not." (And see Add on Cord. 744.) The servant, then, to be entitled to recover, as seems to be established by all the cases, must prove actual notice to the principal of the defects complained of as causing the injury, or some of them. And in order to be able to prove notice, he must allege it in his complaint. It is argued that no notice was averred in the case of Keegan. But the evidence Avas re- ceived by the referee Avithout objection. And the question did -MAY, 1655. 455 Underbill t. Saratoga and Washington Rail Road Co. - , -- 1 __ _ _ . not arise in the court of appeals, whether it was necessary to aver that fact or not. If the objection had been taken at the proper time the referee must have ruled it necessary, or have violated a well known rule of pleading, that it is necessary to aver whatever is material or necessary to prove. It is further insisted that the defendants in this case must have known whether they built the fences or not, and that they are charged with not building. The plaintiff, however, avers that the horse escaped on to the road in consequence of a defect in the fence between a certain lot and the rail road, which it was the duty of the defendants to maintain and keep in repair : they admitting that the fence had been built but had become defective and out of repair. The same remark is applicable as to the cattle-guards, and the bridge. All which defects, as be- fore remarked, were more likely to have been known to the engineer than to the company, particularly the insufficiency of the cow-catcher attached to the locomotive, to permit which he might be deemed to have been grossly negligent himself. With- out further pursuing this subject, I am satisfied that the judge was right at special term in sustaining the demurrer, and I ana for affirming the order, with $10 costs. Order affirmed. [SCHENECTADY GENERAL TERM. May 7. 1855. C. L. Allen, Bodies and James, Justices.] UNDERBILL vs. THE SARATOGA AND WASHINGTON RAIL ROAD COMPANY. No precise technical words are required, to make a condition precedent or subse- quent. The construction must always be founded on the intention of the parties. If the act or condition required does not necessarily precede the vesting of the estate, but may accompany or follow it, and if the act may be as well done after as before the vesting of the estate, or if from the nature of the act to be iwrformed and the time required for its performance, it is evidently the inten- tion of the parties that the estate shall vest, and the grantee perform the act. after taking possession then the condition is subsequent. CASES IN THE SUPREME COURT. Underbill v. Saratoga and Washington Rail Road Co. When: a grant was upon the condition that the grantees shovild build and main- tain a water tight enbankment or dam over a certain brook crossing the land conveyed, as part of their line of road, and that the said embankment or dam, with the flood-gates and sluice-ways therein, might be used for hydraulic purposes, by the grantors, their heirs and assigns ; and it was covenanted thai the grantees should not be liabie for any damages which the grantors should sustain in case of a break in the dam or an overflow thereof, unless the same should happen through the gross negligence or willful misfeasance of the grantees, but that the grantees should repair all damages which the dam or embankment should at any time sustain, forthwith ; it was lield that the con- dition was subsequent, and that the effect of the deed was to vest the fee simple of the estate in the grantees, subject to be defeated by a neglect or refusal to perform the condition. Held also, that the effect of an omission to perform the condition, by the grantees was to give the grantors, or in case of their death, their heirs, the right of en try ; but that no action could be maintained by an assignee of the grantors, to recover the land ; whether the breach was before or after the assignment. Ueld further, that by a general assignment, made by the grantors, to a thin] person, of all their property, rights, claims and demands, the condition was gone, and the grantees obtained an absolute estate, and were discharged from the condition, and all claim for damages for a breach of it. And held, that the condition could not be construed to be a covenant, so as to enable the assignee of the grantors to maintain an action to recover damages for a breach thereof. Nor can the assignee, in such a case, maintain an action for damages, on the ground of an implied covenant Where a plaintiff, in his complaint and on the trial, claims to recover land by way of forfeiture, on the ground of a failure to perform a condition on which it was granted, he will be considered as waiving any claim for damages for breach of a covenant contained in the grant. He cannot be allowed to pursue both remedies at the same time, and in the same action. A condition in a deed, when explicit words are used, creating such condition, win not be construed into a covenant, except to avoid a forfeiture. was an action to recover the possession of certain lands, and also damages for the breach of certain covenants con- tained in a deed. The complaint averred that on or about the 30th day of April, 1847, Henry H. Lawrence and Richard Law- rence, being seised and possessed of the lands and premises in question, with their wives conveyed to the defendants the said land comprised and included within, and bounded by, the two outward lines of the rail road constructed or to be constructed by the defendants between the villages of Saratoga Springs and SCIIENECTADY MAY, 1855. 457 Underbill v. Saratoga and Washington Rail Road Co. Whitehall, where the road crossed or ran upon the land owned or possessed by the said Lawrences, in the town of Saratoga Springs, being 60 feet in width. " upon the condition however, that the said parties of the second part in the said deed named, should build and maintain a water-tight embankment, or dam, over the ravine across the Loughbury creek, as a part of their line of road, and that the said embankment or dam, with the flood-gates and sluice-ways therein might be used for hydraulic purposes by the said parties of the first part, their heirs and assigns." The complaint further averred that there was also a covenant by the grantees to "repair all damages which the said dam or embankment should at any time sustain, forthwith.'' 1 That the defendants, immediately after the execution of the deed, entered into the possession of the land conveyed, and ever since had been and still were in possession thereof. That they had not kept and fulfilled the conditions of the deed, and had not built or maintained a water-tight embankment or darn over the said Loughbury creek, but had wholly neglected and refused so to do. That on the 13th of March, 1848, the Lawrences sold and conveyed to the plaintiff the land, premises, covenants and conditions, and all their real and personal property, rights in action, interest and effects growing out of said deed and its cov- enants. That by reason of such breach and neglect the plain- tiff, since said deed to him, and the Lawrences, before that time, had been deprived of the use of the embankment or dam for hydraulic and other purposes ; and he claimed a forfeiture and to recover possession, and also the damages sustained by the plain- tiff since the conveyance to him. The answer, after averring that the defendants did not exe- cute the deed and were not bound by the covenants contained in it, denied the several allegations in the complaint, except as to the execution of the deed and the taking possession of the premises, and averred a performance of the conditions on the part of the defendants. It then set up various defenses not ne- cessary to be stated here ; upon which the reply took issue. The action was tried at the Saratoga circuit in June, 185o. and upon the trial the plaintiff insisted that he had proved that VOL. XX 58 458 CASES IN THE SUPREME COURT. Underbill v. Saratoga and Washington Rail Road Co. the defendants had not constructed a water-tight enbankaent or dam, such as was required by the condition, and claimed dam- ages therefor, and also possession of the land, by reason of the forfeiture for breach of the condition. It appeared in evidence that the Lawrences were permitted, by an agreement dated Oct. 15. 1844, under the hands of Messrs. Davison and Marvin, two of the defendants' directors, to construct the dam themselves, and the defendants, by a resolution of the board, on the 6th of December, 1844, gave them liberty to construct it ; and that one of the Lawrences built the dam. No erection or location of any machinery was shown or pretended. The plaintiff also proved the conveyance to him. which was by virtue of a general deed of assignment, in trust for the benefit of creditors, contain- ing a clause as follows : " All and singular the lands, tenements, hereditaments, real estate and chattels real of the said party of the first part [the Lawrences] and of each of them, wherever the same may be situated, and also all the goods, wares, merchandise, bonds, notes, accounts and debts due and owing to the said par- tics of the first part and each of them, in what manner soever secured, and all books and vouchers relating thereto, and all the personal property of the said parties of the first part, of every kind and description, wherever the same may be, in trust how- ever," &c. The plaintiff having rested, the defendants' counsel claimed that the plaintiff should be required to elect whether he would claim a forfeiture of the land, or whether he would claim dam- ages for a breach of the covenant ; that he could not claim both. /The plaintiff's counsel then insisted that he was entitled to recover the land, on the ground of a failure to perform the con- dition in the deed. That the consideration was precedent and subsequent, and that for a breach of it an action could be main- tained by the plaintiff, as assignee of the grantors, and that if he was not entitled to maintain the action on the ground of for- feiture he was entitled to recover damages for a violation of the condition and covenant. The court decided that the plaintiff could not recover the land, or the estate, for a breach of the condition in the deed whether such breach occurred before or SCHENECTADY MAY, 1855. 459 Underbill v. Saratoga and Washington Rail Road Cc, after the conveyance to the plaintiff, and that such breach of the condition was not assignable. The plaintiff 's counsel excepted. The counsel for the defendants then moved for a nonsuit, upon the following grounds : 1. That the plaintiff, under the evidence, could not maintain his action, for the recovery of the land, on the ground of a breach of the condition, because the right of action, if any^ could not be assigned. 2. That if assignable, such right would not pass to the .plaintiff, without an express grant, and that there was not sufficient evidence of such grant. 3. That the plaintiff, upon the evidence, was not entitled to maintain an action for the recovery of the land upon the ground of forfeiture. 4. That the condition in the deed to the defend- ants of the premises in question, could only be reserved to the grantor and his heirs. The conveyenceby the grantors, to the plaintiff, upon the evidence, did not entitle the plaintiff to re- enter or recover the land. 5. That the plaintiff could not main- tain an action to recover damages for a breach of the condition or covenants, for they had not executed the deed, and this action could not be maintained upon any implied covenant or agree- ment. The court ordered a nonsuit, and the plaintiff's counsel excepted. A motion was now made for a new trial, upon a bill of exceptions. Edwards 4* Meads, for the plaintiff. W. L. F. Warren and W. A. Beach, for the defendants. By the Court. C. L. ALLEN, J. There can be little doubt, I apprehend, but that the provision in the deed was a condition subsequent. No precise technical words are required to make a condition precedent or subsequent. The construction must always be founded on the intention of the parties. (3 Cruise's Dig. 468, tit. 32, ch. 24. sec. 70. 1 id. lit. 13, ch. 1, sec. 10.) The same words have been construed both ways, and much has been made to depend on the order of time in which the condi- tions are to be' performed. If the act or condition required does not necessarily precede the vesting of the estate, but may ac 460 CASES IN THE SUPREME COURT. Underbill v. Saratoga and Washington Kail Road Co. company or follow it, and if the act may be as well done after as before the vesting of the estate, or if from the nature of the act to be performed and the time required for its perform- ance it is evidently the intention of the parties that the estate shall vest, and the grantee perform the act after taking posses- sion, then the condition is subsequent. (Blacksmith \. Fellow*, 3 Seld. 401, 414. Par melee and others v. The Oswego and Syracuse Rail Road Co., 2. id. 74, 80. Martin \. Ballon, 13 Barb. 119 133. Grant v. Johnson, 1 Seld. 247. Totnpkins v. Elliot, 5 Wend. 496. 1 HilliarcPs Ab. 247, 5. Finlay v. King, 3 Peters, 346, 374. Stuyvesant v. The Mayor of New York, 11 Paige, 414.) Do the acts required by the condition in this case necessarily precede the vesting of the estate? The grant was " upon the condition that the parties of the second part in the said deed named, should build and maintain a water-tight embankment or dam over the ravine across the Loughbury brook, as a part of their line of road," and " that the said embankment or dam, with the flood-gates and sluice-ways therein, might be used for hy- draulic purposes by the said parties of the first part, their heirs and assigns." A further covenant was inserted in the deed, that the parties of the second part were not to be liable for any damages which the parties of the first part, their heirs or assigns, should or might sustain in case of a break of the dam ur overflow of the same, unless they should happen through the gross negligence or willful misfeasance of the parties of the second part ; but " the said parties of the second part should repair all damages which the dam or embankment should at any time sustain, forthwith." It is pretty clear, from the phrase- ology of the condition, that the acts required might not only fol- low the vesting of the estate, but that they almost necessarily did, or that at all events it was the evident intention of the par- ties that the dam or embankment would involve much time and expense, and require the possession of the land on the part of the defendants. There was no limit to the time of its perform- ance, and consequently the defendants would be allowed a rea- sonable time to construct arid complete the work. And it was SCHENECTADY MAY, 1855. 46] Underbill v. Saratoga and Washington Rail Road Co. never contemplated that during all the time necessary for such an act the defendants should be prevented from taking posses- sion of the land, and delayed in the construction of their road, which might otherwise be progressing at the same time that the condition in the deed was being complied with. I am of opin- ion, therefore, that the condition was subsequent, and that the effect of the deed was to vest the fee simple of the estate in the defendants, subject to be defeated by a neglect or refusal to perform the condition. The cases already cited establish this proposition, and it is directly decided in Ludlow v. The New York and Harlem Rail Road Co., (12 Barb. 440.) And see Wynne v. Wynne, (2 Man. fy Gran. 10 ; 40 Eng. Com. L. Hep. 237.) The plaintiff's counsel, while he rather seems to concede that the condition is subsequent, insists that it was broken, and that the plaintiff, who is the grantee of the Messrs. Lawrence the grantors to the defendants, acquired all their rights and is enti- tled to recover the land. This right, he contends, even before breach and independently of any statute, was a "possibility coupled with an interest" and assignable in equity or bj. de- vise, and a fortiori after breach. The case of Jackson v. Wai- dron, (13 Wend. 178,) cited by the counsel, does not, in my judgment, fully sustain his position. At all events it does not decide that such a right is assignable. It is true that Chan- cellor Walworth, in delivering his opinion in the court of errors, in that case, remarks, (pp. 194, 195) that " it appears to be finally settled, in England, that possibilities coupled with an interest, although not technically clothed with an estate in possession, reversion or remainder, are in the nature of 'remain- ders, and as such are devisable." Yet- he adds, " it is still questionable by many of the English elementary writers, wheth- or such estates are in fact assignable." And he proceeds to remark that it is said in a note to Shelley's case that where a possibility is coupled with an interest, " as where the person who is to take upon the happening of the contingency is fixed and ascertained, it may not only be bound by estoppel or contract but may also be released, pass under the bargain and sale of 462 CASES IN THE SUPREME COURT. Underbill v. Saratoga and Washington Rail Road Co. commissioners of bankrupts, or be devised, though it cannot he granted or transferred by the ordinary rules of the com- mon law." After a review of several cases cited, he comes to the conclusion that whatsoever is devisable may be gi anted. This conclusion, however, was not adopted by a majority of the court, and the judgment of the supreme court in that case was affirmed, against the opinion and vote of the chancellor. Sena- tor Tracy, who delivered the leading opinion in favor of affirm- ance, makes the significant remark (p. 221 of the case,) " The rule seems to be now admitted that every interest or estate in land may be released to the terre-tenant, though it might not be grantable to a stranger. Thus if a man grants a limited fee, the possibility of reverter on the determination of the limited estate continues in him, but he cannot -make a valid grant of it to a stranger, though it is a possibility coupled * with an interest. He however can release it, and it seems to be the amount of the decisions in Mannings case, (8 Coke, 187,) and Lampefs case, (10 Coke, 46,) that a possibility coupled with an interest) is not assignable, though it be releaseable," undf he finally adds, " descendible and devisable." The cases cited in 5 Pick. 528, and 21 id. 215, 223, decide no more than that such an interest is descendible and devisable, but do not, as I understand, undertake to go the length of establish- ing the proposition that it is assignable. Besides, although the decisions in that state are here held as high authorities, yet when the adjudications of their courts come in conflict Avith those of our own state, ( x as will be found to be the case here, if they are considered as deciding the point contended for by the plaintiff in his favor) those of our own courts must prevail. The chancellor, in the case of Lawrence v. Bayard, (7 Paige, 70, 75,) remarks that the revised statutes (1 R. S. 725, o5 ; ) have declared in express terms that expectant estates are de- scendible, devisable and alienable, in the t-ame manner as estates in possession, and that by an examination of the several provisions of the revised statutes it will be seen that by the term expectant estates the legislature intended to include every present right or interest, either vested or contingent. SCHENECTADY MAY, 1855. 453 Underliill v. Saratoga and Washington Rail Road Co. which may by possibility vest in possession at a future day, and that the mooted question whether a mere perpetuity coupled with an interest is capable of being conveyed or assign- ed at law, is therefore forever put at rest in this state." This decision was after that of Jackson v. Waldron, though that case came out of the court of errors in 1834, after the revised statutes took effect. The action, however, was commenced in 1828. But this court, in the case of Nicoll v. The New York and Erie Rail Road Company, decided in 1852, long after the revised statutes took effect, and since the decision in 7th Paige, have adjudged that conditions in a deed can only be re- served for the grantor and his heirs, and that a conveyance made by the grantor, to a third person, either before or after breach of the condition, will not carry with it a right to enter for a condition broken. The court say "conditions in a deed can only be reserved for the grantor and his heirs. A stranger cannot take advantage of them. And the reason is that the estate is not defeated although the condition be broken, until entry by the grantor or his heirs, and nothing which lies in action, entry or re-entry can be granted over, in order to dis- courage maintenance." And the court further remark that " when a grant in fee has been made, depending upon a condi- tion subsequent, no one can re-enter, on breach of the condition, except the grantor or his heirs, and a conveyance made by the grantor to a third person, before or after breach of the condition, will not carry with it a right to re-enter for condition broken. This rule, however, does not extend to leases in fee, reserving rents, nor to leases for life or years. (1 R. S. 747, 23, 24, 25.) Kent, in his Commentaries, (vol. 4, p. 127,) lays down the same doctrine, which is supported in 1 Cruise's Digest, tit. 13, ch. 1, 17, and same tit. 53, 65. And see 1 Saund. 287 d. (n.) 16. 3 Denio, 334, 360. Bacon's Abr. tit. Condi- tion, E. 1 Wend. 388, 395. 2 Hill, 491, 495. Shep. Touch. 158. 12 Barb. 440, 2, 3. The case then, in I2lh Barbour, supported as it seems to be by abundant authority, if recog- nized as law, and it has not been reversed on appeal, is, it ap- pears to me, decisive of the present. OASES IN THE SUPREME COUKT. Underbill v . Saratoga and Washington Rail Road Co. But the counsel for the plaintiff insists that both the case? in 1.2th Barbour are different in principle, and were both de- cided on a technical condition that unless the road was built within a short period the grant, in each case, should be void ; recognizing, I suppose, the well established principle that con- ditions involving forfeiture are not favored in law, and " are construed strictly because they tend to destroy estates, and are odious.' (4 Kent, 128, 129.) I am unable to discover the dis- tinction sought to be taken, nor why the exact point was not raised and passed upon by the court in both those cases. It is urged that the old rule forbidding such assignments at law was in aid of the policy of maintenance, which does not prevail here. In the case in *22d Wendell, 405, cited by the counsel, one of the members of the court of errors, in delivering his opinion, said it was insisted on the argument that the legisla- ture had intentionally repealed all statutory provisions on the sub- ject, except as to the buying and selling of pretended titles to land, yet he remarks, " I do not think, however, that agreements actually champertous. as where a stranger to the subject of litigation who has no interest therein in law or equity, or in expectancy, by the ties of blood or affinity, or who agrees to assist in embroiling his neighbors in litigation, or in carrying their suits through the different courts, can be enforced in courts of justice." In other words, the statute (2 JR. S. 691, 6) providing that no person shall buy or sell or in any manner procure, or make, or take any promise or covenant to convey any pretended right or title to property unless the grantor is in possession thereof, &c. is yet in full force. I come to the conclusion that ths effect of the omission to perform the condition by the defendant was to give the grant- ors, or in case of their death their heirs, the right of entry; but that no action can be maintained by the assignee, to recover the land, whether the breach was before or after the assignment and that the court was therefore right in so holding at the circuit. The remaining question which arises is, whether the plaintiff is entitled to recover damages for breach of the condition. BCHENECTADY MAT, 1855. Underbill v. Saratoga and Washington Rail Road Co. It will he proper, preparatory to entering into the consider- ation of this question, to look at the complaint and ascertain what is the particular cause of action, and what relief is de- manded. After setting forth the condition and the covenant to repair, the complaint avers that the defendant has not fulfilled the said covenants and conditions, on his part, in the said first mentioned deed contained, but on the contrary have not built or maintained a water-tight embankment or dam over the said ravine across the Loughbury brook, and according to the true intent and meaning of the said deed and of the said conditions and covenants thereof, but have hitherto wholly refused so to do. " And the said plaintiff further says that by reason of the failure of the said defendants to build and maintain the said water-tight embankment the said Lawrences were, previous to and up to the time of making the assignment, and the said plaintiff ever since the said assignment to him, has been de- jivived of the use of the said embankment or dam, and of the flood-gate and sluice-way therein, for hydraulic purposes, and also of the use of the water power and other rights and privileges," enumerating them, and concluding by averring that the Law- rences before and the plaintiff, since the assignment, have sus- tained damages by reason thereof to the amount of $10.000, and demanding that the said defendants be adjudged to have broken the said condition, and also the said covenants on their part in the said deed contained," and that the estate may be forfeited and revert to the plaintiff, his heirs and assigns, and that he may recover the possession, " together with the said damages so as aforesaid sustained by the said Lawrences and assigned to the plaintiff, and also the damages so as aforesaid sustained by the plaintiff since the said assignment to him, with costs," &c. It will be perceived that the whole gravamen of the com- plaint is, that the condition to build the dam was broken and a forfeiture claimed because thereof. No averment is made of a breach of the covenant to repair, or claim put forth for damages on that ground. It would have been deemed prepos- terous, probably, to have presented such a claim, when no lam had been constructed, to be repaired, and when the VOL. XX. 59 466 CASES IN THE SUPREME COURT. Underbill v. Saratoga and Washington Rail Road Co. whole burthen of the action was to recover the possession of the premises, for a non-performance of the very condition which must have been complied with, at least to such an extent as that the dam had been constructed so as to need repairs, which the defendants had neglected to make. The whole claim for damages is, as I understand the complaint, for losses sus- .tained by the Lawrences aftd the plaintiff by reason of the fail- ure of the defendants to build or construct a sufficient dam. This view brings us to the question, can the condition be construed into a covenant, so that the plaintiff can be entitled to maintain this action for a breach of such covenant? It was not seriously contended, I believe, upon the argument, that there was any express covenant in the grant, except the one to repair ; and it has been seen that no damages can be claimed for a breach of that covenant, as none could in this case exist. And in the view I take of the question it is unnecessary to decide whether the defendants executed the deed or not; or whether it would be necessary, in order to sustain an action. It is suffi- cient, in my judgment, that the plaintiff neither sets up nor proves any express covenant. Nor do I think the condition can be construed into a covenant. The words are explicit, creating a condition. The in tent of the parties must govern, and the rules as to ascertaining and determining that intent are the same as those relating to covenants. It was clearly the intent, as to the condition, that a forfeiture should accrue, in case of a fail- ure to perform. It was a grant of the estate only upon that condition. The plaintiff has so treated it, not only in his com- plaint, but on the trial. He insisted at the circuit on being required to elect whether he would claim a forfeiture of the estate, or damages for a violation of the covenant that he was entitled to recover the land on the ground of a failure to per- form the condition on which the grant was made ; that the condition was both precedent and subsequent, and that for a> breach an action could be maintained by the plaintiff as as- signee of the grantcfrs ; and that if he was not entitled to main- tain the action on that ground, he was entitled to recover dam- ages for a violation of the condition and covenant. The court held SCHENECTADY-MAY, 1854 46? Underbill v. Saratoga and Washington Rail Road Co. that he was not entitled to recover the land for a breach of the condition of the deed, and granted a nonsuit. The whole claim was on the ground of forfeiture, or damages for not complying with the condition to build, which the plaintiff sought for that purpose to construe into a covenant. I do not perceive, if he fails to establish the first claim, how he can sustain himself on the second. By insisting upon his claim of forfeiture, and to recover the land, he must waive the claim for damages for breach of the covenant, and cannot be allowed to pursue both remedies at the same time and in the same action. (9 Paige, 430.) Besides, it has been held that a condition in a deed when explicit words are used, creating such condition, will not be construed into a covenant, except to avoid a forfeiture. (1 Hil. Abr. 299. Gray v. Blanchard, 8 Pick. 284.) As be- fore remarked, there is no express covenant. But it is argued that there is an express covenant to repair, which runs with the land. This, as a naked proposition, no one, probably, dis- putes. (Norman v. Wells, 17 Wend. 136, and various other cases.} But the difficulty here is, that the plaintiff does not seek, nor can he claim, to recover upon a breach of that cove- nant. He relies upon a breach of the condition alone, which it has been seen, cannot be construed into a covenant. But if it could, it would not, in my judgment, run with the reversion. The parties are now possessed of different interests. If I am correct in the former position I have taken, that by the assign- ment by the Lawrences to the plaintiff the condition was gone, and the defendants obtained an absolute estate, it follows that they are discharged from the condition and all damages for a breach of it. (Shep. Touch. 158. And see Bleecker v. Smith, 13 Wend, 530. 533.) The statute (1 R. S. 747, 17, 18, 19) does not aid the plaintiff. The provisions of those sec- tions only extend to covenants in leases reserving rents, for life or years, or in fee. I pass to the only remaining question, which is, can the ac- tion be sustained upon the ground of an implied covenant ? It nas been shown that the condition was reserved to the grantors and their heirs, and did not include their assigns. That by the 468 CASES IN THE SUPREME COURT. New York Central Ins. Co. v. National Protection Ins. Co. assignment the condition was discharged forever. Being thus extinguished, how can it be. revived, either as a condition or a covenant? It appears to me the whole right of action upon the condition is gone, so far as the plaintiff is concerned. But the statute (1 R. S. 738, 140) declares that no covenant shall be implied in any conveyance of real estate, whether such conveyance contain special covenants or not. This statute has received a construction, in the case of Kinney v. Watts, (14 Wend. 38,) in which the court say that the language is clear, concise and peremptory, that no covenant whatever shall be implied in any conveyance of real estate, and that there is no room for construction. (And see 8 Paige, 597, 599.) In every view which I have taken of this case I can discover no ground upon which the plaintiff is entitled to recover, and I am of opinion that the motion to set aside the nonsuit and for a new trial, should be denied with costs. New trial denied. Y GENERAL TERM, May 7, 1855. C. L. Allen, BocTces and James, Justices.] THE NEW YORK CENTRAL INSURANCE COMPANY vs. THE NATIONAL PROTECTION INSURANCE COMPANY. A contract for insurance, made by an individual who acts as the agent of both parties in making the same, is voidable in a court of equity, at the election of the principals, or either of them. Where an agent, without the knowledge of his principal, is acting also in behalf of the other party, in making a contract, the presumption of fraud is not an unreasonable one. But the principle forbidding such contracts is a mere rule of equity. If the proper forms hfcve been obssrved, the conveyance is good at law, and the title passes. The contract is not void, but only voidable. But this defense cannot be relied on in an action upon a policy of insurance, if i* is not set up in the answer. No proof can be offered of facts not put in issue by the pleadings. .V defendant who makes a defense by answer, must, besides answering the plain MADISON SEPTEMBEE, 1854. 459 New York Central Ins. Co. v. National Protection Ins. Co tiff's case as made by the complaint, state in his answer every matter of defense of which he intends to avail himself. Where conditions of insurance, annexed to the policy, are by an express provision in the policy, made apart of the contract, they have the same force and effect as if contained in the body of the policy. One of the conditions of a policy was that no insurance should be binding until the actual payment of the premium. The money was in a bank whore the agent was in the habit of making his deposits, deposited to the credit of the insured. The cashier told the agent of the insurers, at the time the arrange- ment for the insurance was made, that he could have the money. The agent directed him to let it lie ; saying that when he wanted the money he would draw for it. It was not in fact drawn by him until after the fire. Held that the agent had waived a strict compliance with the condition, and that he had authority to do so. Where a policy is issued and delivered to the insured, and the premium is ac- knowledged in the policy as actually received, this will be held as conclusive, upon the fact of payment, and will bind the insurer. Where a fire occurred on the 15th of June, and the insured knew of it on the 18th, and sent notice to the insurers, by mail, on the 23d; Held that this was a suf- ficient compliance with a condition in the policy, requiring notice of loss to be given forthwith. Such a provision has never been construed literally to require notice on the day. It has always been held that due diligence, under all the circumstances, was all that was required. A general agent of an insurance company for effecting insurances in their behalf, while acting within the general scope of his authority in making an insurance. will bind his principals, although he departs from his instructions ; unless the assured have notice that he is exceeding his authority. It is a general rule that whatever is known to an agent must be presumed to be known to the principal. But it seems this rule is confined to that class of cases where the knowledge of the fact comes to the agent while he is acting for his principal, in the course of the very transaction which becomes the subject of the suit. Hence the fact that an agent by whom an insurance is effected, had previously received instructions from his principals the insurers, will not be regarded as notice to the insured of those instructions and that he had exceeded his author- ity, although the agent was at the time of making the insurance, the secretary of the insured. In an action upon a policy of reinsurance, the reinsurer is liable to the insurer for the costs nnd expenses incurred in defending a suit brought by the party originally insured. -was an appeal, by the defenrlants, from a judgment rntererl against them at a special term, after a trial at the circuit. The action was upon a policy of reinsurance. 470 CASES IN THE SUPREME COURT. New York Ceutral Ins. Co. v. National Protection Ins. Co. /. E. Dewey, for the plaintiffs. Charles S. Lester, for the defendants. By the Court, MASON, J. This is an action upon a policy of reinsurance for $2000, executed by the defendants to the plaintiffs through their agent, G. W. Stevens, who was also the agent of the plaintiffs in making the contract of insurance. The risk was selected and the rates of insurance fixed by Stevens, and the question is, whether this action can be maintained upon the policy. It becomes important to inquire whether such a contract, made by an agent who acts as the agent of both parties in making the contract, is absolutely void at common law, or whether it is voidable in a court of law ; or whether it is only voidable in a court of equity. The rule is well settled, both in England and this country, that such a contract is voidable in a court of equity at the election of the principal. The principle is illustrated in the case of an agent employed to sell. If such agent become himself the purchaser or the agent of another; or if he be an agent to buy, and he become himself the seller, or the agent of another in making the sale, the principal may avoid the sale or the purchase, in equity. If he come to the court upon a timely application, upon the fact being alleged and proved, the court will presume the transaction was injurious and consequent- ly fraudulent ; and this presumption cannot be overcome unless it can be shown that the principal, furnished with all the knowl- edge the agent possessed, gave him previous authority to be- come purchaser or seller, or afterwards assented to such purchase or sale. (Campbell v. Walker, 5 Ves. 678. 1 Ves.jnn. 287. Massey v. Davies, 2 id. 317. 1 Russ. fy Mylne, 58. 2 Myl. <$C K. 819. Story on Agency, 9, 192, 211, 214, 210. Dunl. Paley on Agency, 33, 34. 1 Mason, 341. 6 Pick. 196. 2 John. Ch. 252. 5 id. 388. Hopk. Ch. 515. 9 Paige, 237. 4 Con. R. 717. 5 Lond. Jurist, 18. Smith's Merc. Law, 101. 13 Ves. 103. 8 id. 502. 9 id. 234. 12 id. 355. 3 Bro. C. C. 119. 5 Paige. 650. 2 Mylne fy Cr. 374, Liver, on Agency, 423. 4 Mylne $- Cr. 134. 6 Ves. 625. 1 Story's Eq. Jur. MADISOtf SEPTEMBER, 1854. 471 New York Central Ins. Co. v. National Protection Ins. Co. 5315, 316. 2 Mason, 369. 1 Jac. $ Wai 294. 1 John. Ch. 27. 2 id. 394. 3 Ves. 740. 4 Denio, 575. Angell on Fire and Life Ins. 454, 455. Parsons on Contracts, 74. 75.) The rule seems to be founded on the danger of imposition in such cases, and the presumption which a court of equity indulges of the 'existence of fraud which is inaccessible to the eye of the court, ' and consequently in equity such agreements are regarded as constructively fraudulent. (9 Paige, 242. 4 Kent's Com. 438, 3d ed.} The rule is a well settled one, and the presump- tion is not an unreasonable one in a court governed by the prin- ciples of equity. The principal in fact has bargained for the exercise of all the skill, ability and industry of his agent, and he is entitled to demand the exertion of this in his own favor. (Parsons on Cont. 74, 75.) Where the Agent, unbeknown to his principal, is acting equally in behalf of the other party, the presumption is not an unreasonable one. This principle, however, like the one that a trustee cannot be the purchaser of an estate, is a mere rule of equity. If the proper forms have been observed, the conveyance is good at law, and the title passes. The contract is not void, but only voidable. (5 Metcalf, 467. 5 John. 43, 48. 1 Bin*. 396, 400, 401. 5 Ves. 678. 13 id. 603. 7 Moore, 315. 5 Pick. 521. 3 Ves. 740, 751. 2 John. Ch. 740, 751. 9 Ves. 248. 10 id. 381. 14 John. 414, 415. 2 GUI $ John. 227. 4 id. 376. 3 Harr. t$* John. 38. Par- sons on Cont. 75, 76, note j. 1 Pjeters 1 C. C. R. 368. 6 Halst. 585. 8 Cowen. 361.) No case, I apprehend, can be found where a court of law has pronounced such a conveyance abso- lutely void. (14 John. 418. 5 id. 48. Mackintosh v. Barber, 1 Bhig. 50. 7 Moore, 315. 5 Pick. 519, 521. 5 Mete. 467.) The rule of which Ave have been speaking is applicable to all persons placed in situations of trust or confidence with reference to the subject matter of the contract, and embraces trustees, ex- ecutors, administrators, guardians, agents and factors, attorneys, solicitors, &c. It embraces all Avhp come within the principle. (9 Paige, 241.) There is no such rule, in equity even, as that a person standing in such trust relation, cannot himself buy at his own sale. He may purchase and take the title, subject how- 472 CASES IN THE SUPEEME COURT. New York Central Ins. Co. v. National Protection Ins. Co. ever to the option of the cestui que trust, if he come in a rta sonable time, to have the sale declared invalid. (Campbell \. Walker, 5 Ves, 678, and cases note a. Lister v. Lister, 6 id. 631. Ex parte Lacey, 6 id. 625. 15 Pick. 31. 7 id. 1. 10 id. 77. 2 //*/*. C/i. 252, 261, 266. 4 6MZ <$ Jo/tw. 376. Pa;- SO/N? o ConA 76.) It is not important to inquire whether the executory contract made by an agent who acts and contracts for both parties can be avoided in a court of law ; for in this court the defendant may make any defense which he may have, be it legal or equitable ; and there is no doubt the defense insisted on in this case is a good one if the defendants can be allowed to set it up under the answer which he has interposed. The complaint alleges that on or about the 6th June, 1352, the plain- tiffs procured the defendants to insure, or reinsure the plaintiffs to the amount of $2000 upon this propert} 7 insured by the plain- tiffs, and that the defendants in consideration of ten dollars to them paid by the plaintiffs, did make and execute a policy of insurance to the plaintiffs, and caused the same to be signed by their president, James M. Marvin, and to be attested by their secretary, J. M. Wheeler, and delivered the same to the plain- tiffs, and that the same was duly countersigned by the defend- ants' agent, George F. Stevens, who was duly authorized for that purpose. &c. The following are the only allegations in the an- swer upon which a defense can claim to be predicated: "And the defendants further answering deny that on or about the 6th day of June, 1852, the said plaintiffs procured these defendants to insure, or reinsure the said plaintiffs as stated in the com- plaint, and deny that they made and executed a policy of insur- ance or delivered the same to the plaintiffs as stated in said complaint, and deny that Geo. F. Stevens was the agent of the defendants, or was authorized to countersign the policy of insur- ance mentioned and set forth in the complaint." The evidence in the case shows that Stevens was the duly constituted agent of the defendants for making contracts of insurance, and that the defend- ants, for that purpose, had furnished him with blank insurance policies signed by the president and secretary of the defendants, and that Stevens, as such agent of the defendants, made the said MADISON SEPTEMBER, 1854. 473 New York Central Ins. Co. v. National Protection Ins. Co. contract of insurance and issued the said policy of insurance for and in behalf of the defendants. The real ground of defense therefore is, not that the defendants did not make such a policy of insurance to the plaintiffs, for they did make, through their agent, just such a contract as is alleged in the complaint. Nor is the real ground of the defense that Stevens was not the agent of the defendants, authorized to countersign the policy. The real defense to the action is, that notwithstanding such a contract has been made by the defendants, through their general agent for making contracts of insurance, and countersigned, yet that the contract in the case under consideration is not binding n.non the defendants, because the same was fraudulently entered into by Stevens, their agent, he acting in the same matter as agent of the plaintiffs. Not that such a contract is absolutely void, but that the defendants may avoid it for the reasons above stated. I do not think such a defense can be interposed under this an- swer. The rule is well settled under both our former and pres- ent system of pleadings, that no proof can be offered of facts not put in issue by the pleadings.' The reason of the rule is, that the adverse party may be apprised against what suggestion he 13 to prepare his proofs. (2 Comst. 361, 506, and cases there referred to.} This rule is equally applicable to the defendant who makes a defense by 'answer, and it requires him, besides answering the plaintiff's case made by his complaint, to state in las answer any matter of defense of which he intends to avail himself; and he cannot avail himself of such matter of defense if it be not set up in his answer. (2 Comst. 506.) Facts proved but not pleaded are not available to the party proving them ; for the court pronounces its judgment, " secundum allegata ct probata." (2 Comst. 506. 2 Selden, 179.) If a party would avoid a contract for fraud he must set up such defense in his answer. (Bailey v. Ryder, 1 Selden, notes, 15. 4 Barb. 272. 6 John. 5G5. 12 Barb. 348.) In Imham v. Child, Ld. Thur- low would not listen to any evidence that went to prove a deed fraudulent because there was no allegation of fraud in the bill. (1 Bro. C. C. 91.) And the court of appeals held precisely the ' VOL. XX. 60 474 CASES IN THE SUPREME COURT. New York Central Ins. Co. v. National Protection Ins. Co. same in Bailey v. Ryder, (supra.} Such defense not being set up in the answer, the defendant cannot avail himself of it. The next objection to the plaintiffs' right of recovery in this case is, that the insurance policy was not binding upon the de- fendants for the reason that the premium was not paid. The conditions are, by an express provision in the policy, made a part of the contract. (6 Wend. 488.) And they have there- fore, the same force and effect as if contained in the body of the policy. (2 jDetiio, 75.) The second condition annexed is, that " no insurance whether original or continued, shall be binding until the actual payment of the premium." This is a condition in the policy, and a condition in a fire no less than in a marine policy, not complied with, defeats the policy. (1 Phil, oh Ins. 41G. 2 Detiio, 75, 81. 5 id. 326.) In the present case the premium was not in fact paid to Stevens till after the fire. The money was in the bank, under the control of Mr. Olcott, the cashier, deposited to the credit of the treasuer of the plaintiffs, and Mr. Olcott told Stevens he could have the money at the time the arrangement for the insurance was made, and Stevens told him to let it lie, and when he wanted the money he would draw for it. The money was not in fact drawn by him till after the fire, and from the 7th to the 10th of July. Olcott was in the habit of receiving and paying out the premiums for the plaintiffs and acted in behalf of the company. He had there- fore. I am inclined to think, authority to pay out the moneys in deposit belonging to the plaintiffs for such object, and would at any time have paid this premium upon Mr. Stevens's check, had he wished to draw it ; but Stevens preferred to hafe the money remain in the bank, as that was the place where he made his deposits, until he wished to make his remittance to the de- fendants. Stevens, therefore, chose to waive a strict compli- ance with this condition in the policy, and trust to the cashier paying his check, knowing that the cashier had money in de- posit belonging to the plaintiffs which he was authorized to apply to such purposes. I think Stevens had authority to waive compliance with this condition in the policy. (1 Phil, on Ins. 22, 28, 23, 24.) And that he did so is most manifest MA DISOX SEPTEMBER, 1854. 475 New York Central Ins. Co. v. National Protection Ins. Co. But the money was paid to Stevens after the fire. He was the defendants' agent. His authority was not revoked, and the money was received before the disapproval of the insurance. I am inclined to think, therefore, the defendants are bound ; for although both the contract and policy are subsequent to the destruction of the property, the insurer may be bound. (12 Wheat. 408. 4 Cowen, 643, 665.) But again, this policy was issued and delivered to the plaintiffs, and the premium is acknowledged in the policy as actually received. This, upon the authorities, seems to be held as conclusive, and to bind the insurer. (3 Kent, 260, 3d ed. 1 Camp. 532. 3 Taunt. 493. 1 Sandf. S. C. R. 58. 1 Phil, on Ins. 514, 515. 2 id. 2116, 1849, 1993.) The ^defendants cannot avail themselves of the objection taken upon the trial that the plaintiffs did not give such notice of the loss to the .defendants, as is required by the conditions of the policy ; for the reason that 119 such issue is presented by the pleadings. The complaint alleges due and proper notice given of said loss to the defendants upon the re- ceipt of notice thereof, by the plaintiffs, and this averment stands entirely undenied by the answer, and for the purposes of the action, therefore, is deemed admitted. But if we regard the issue as made by the pleadings, the notice was sufficient. The fire oc- curred on the 15th of June and the plaintiffs knew of it on the 18th and they sent notice to the defendants by mail on the 23d. This was a sufficient compliance with the condition of the 'policy requiring notice of the loss to be given "forthwith" This provision has never been construed literally to require no- tice on the day. It has always been held that due dili- gence under all the circumstances was all that was required. There must not be any unreasonable delay or laches in giv- ing the notice. (Inman v. The Western Fire Lis. Co. 12 Wend. 452.) We will now proceed to consider the second point raised by the defendants on their motion for a nonsuit, and which is that Stevens being the secretary of the plaintiffs they were chargeable with notice of his instructions from the defendants. 476 CASES IN THE SUPREME COURT. Ne\v York Central Ins. Co. v. National Protection Ins. Co. and consequently with notice that he exceeded his author- ity. Stevens being the general agent of the defendants for effecting insurances in their behalf, and having acted in the general scope of his authority in making this contract of insur- ance, he clearly bound the defendants, notwithstanding he de- parted from his instructions : unless the plaintiffs had notice that he was exceeding his authority. (4 Cow en, 645. 2 Kent, 620. 23 Wend. 18.) The rule is a general one that whatever is known to the a,gent must be presumed to. be known to the principal. (Dunlap's Paley on Agency ', 260.) I am inclined to think, however, that the better opinion is. that this rule is confined to that class of cases where the knowledge of the fact comes to the agent while he is acting for his principal in the course of the very transaction which becomes the subject of the suit. (2 Hill, 452.) If this be so, then the fact that Stevens had before this received instructions as the agent of the defendants should not be regarded as a notice to the plain- tiffs, although Stevens was the plaintiffs' secretary at the time. But the real objection was not raised that as Stevens acted as the agent of the defendants in making this very contract and as he had knowledge of the instructions this was known to the plaintiffs. The precise points Avherein he exceeded his author- ity ; or did not follow instructions were stated on the motion for a nonsuit, and are, first, that he took less premium than was required ; 2d, that he exceeded his authority in not requiring an application, and in not sending to the defendants a copy of the resolutions of the plaintiffs, and also in ante-dating the policy to the 6th of June. It is. perhaps, a sufficient answer to these objections to say that none of these defenses are set up in the answer, and that the defendants cannot be allowed to raise them, for this reason. (17 Wend. 199. and casus referred to above.} The only remaining question is, whether the defendants are liable upon this policy of reinsurance for the costs and expenses of the suit brought against the plaintiffs by the Etna Insurance Company. I am free to confess that upon a fair construction of the defendants' contract, I am at a loss to see upon what principle CHEMUNG MAY, 1855. 477 Briggs v. Briggs. they can be held, and yet the authorities would seem to hold them. (1 Arnould on Ins. 289. 2 Phil, on Ins. 749, 676, 2145. Hastie v. De Peyster, 3 Caines, 190. 1 Story's C. C. 458, 462. 3 Kent, 278, 3d ed.) I am of opinion, for the rea- sons stated, that the judgment should be affirmed. [MADISON GENERAL TERM, September 12, 1854. Gray, Shankland and Mason, Justices.] ~20""4T71 BRIGGS vs. BRIGGS and VOSE. lisjajpl "20 4Ti 23 651 Where goods are consigned to joint factors the consignees are in the nature of 3 *, jjg co-obligors and each is liable for the whole. 15 471 53a 342 And although, upon a dissolution of the partnership, one retires and the other sells the goods and receives the avails, yet an action lies against both for not ful- filling their duty in selling and accounting ; and they may both be held liable for not accounting. In an action against several defendants who are jointly and severally liable, either of them may set off promissory notes executed by the plaintiff, or may avail himself thereof by way of counter-claim. A PPEAL from a judgment rendered at a special term. The IA. facts appear in the opinion of the court. Walbridge fy Finch, for the plaintiff. Ferris fy Cushing, for the defendants. By the Court, MASON, J. The defendants were copartners in the commission business, in the city of Albany, and the plain- tiff consigned to them as such commission merchants, a quantity . of lumber to sell on commission. After the lumber was received and a part of it sold, the copartnership between the defend- ants was dissolved and the defendant Briggs ceased to have any thing to do with the business. The defendant Vose sold the lumber and did not account and pay over. The plaintiff heard 478 OASES IN THE SUPREME COURT. Briggs v. Briggs. of the dissolution about the last of July and before the .defendant Vope had sold the balance of the lumber ; but it does not appear from the evidence, that he knew whether the lumber was sold or not. The question presented for our adjudication, is whether the defendant Briggs is jointly liable to the plaintiff for the avails of the lumber sold by Vose after the dissolution of the firm. The defendants are both liable. If goods are consigned to joint fac- tors, they are in the nature of co-obligors and are answerable for one another for the whole. (Godfrey v. Sanders, 3 Wilson, 114. 6 Bac. Abr. 563, Bouv. cd. tit. Merchant and Merchan- dise, letter B. 5 Com.. Dig. 72, note f, tit. Merchant, Factor, B.] Joint factors are liable for each other's receipt, and it is no discharge of one of two joint factors that the business was wholly transacted by the other with the knowledge of the prin- cipal. (Godfrey v. Sanders, 3 Wilson, 73, 114. Gore v. Dawbeney, 2 Leon. 75. Cowper, 814, in note. Dunlap's Paley on Agency, 52. Slory on Agency, 281.) A joint consignment and acceptance of the goods makes each liable to account for the whole. (Dunlap's Paley on Agency, 53.) And although upon a dissolution of the partnership one retires and the other sells the goods and receives the avails, yet an action lies against both for not fulfilling their duty in selling and accounting, and they may be both held liable for not accounting. ( Wells and others v. Ross, 7 Taunt. 403. D mi lap's Paley on Agency, 53, note w.} Upon the trial of this cause the defendant Enos Briggs offer- ed in evidence as an offset or counter-claim three promissory notes made by the plaintiff, and payable to Enos Briggs or bearer ; two of them for $117.56 each, and one for $100. The execution of these notes was admitted, but the plaintiff's coun- sel objected to their being received in evidence or allowed by the referee, on the ground that they were not a proper offset or counter-claim in this action. These notes could not be allowed as a set-off prior to the amendment of the code in 1852. They were not a legal offset under the revised statutes. I am in dined to think, however, that they are admissible as a set-off or counter-claim under 149, 150 of the code as amended in 1852. OTSEGO JULY, 1855. 479 Partenheimer v. Van Order. A. counter-claim is defined to be one existing in favor of a defendant nrid against a plaintiff between whom a several judgment might be had in the action, and arising out of one of the specified causes of action ; and the 2d subdivision provides that in an action upon contract any other cause of action, arising also on contract, and existing at the commencement of the action, shall be a counter-claim. (Code, 150.) The only restriction is that it must be one existing in favor of a defendant and against a plaintiff between whom a several judgment might be had in the action. The present action is one of this Mind as is ex- pressly held in the case of The People v. Cram and White, (8 How. Pr. R. 151.) These notes should have been allowed as a counter-claim by the referee. The case of Parsons and Wales v. Nash, (8 How. Pr. R. 454,) is in point, and determines the very question presented in this case. It is true that is a special term decision, but I think Judge Marvin has given the only true construction to this section of the code. I do not see how it can be read otherwise. The judgment must be reversed and a new trial ordered; costs to abide the event. [CHEMUNG GENERAL TERM, May 8, 1855. Shankland, Gray and Mason, J ustices. ] PARTENHEIMER vs. VAN ORDER. so 479 59 425 9h 530 Where cows, belonging to several owners, are found in the garden of an individ- ual, committing a trespass, each owner is liable for the damage done by his own cow, and for no more. And in the absence of all proof as to the amount of damage done by each cow, the law will infer that the cattle did equal damage. A PPEAL, by the defendant, from a judgment of a county r\. court. Bi'uyn $ Williams, for the plaintiff. Walbridge $ Finch, for the defendant. 480 CASES IX THE SUPREME COURT. Partenheimer v. Van Order. By the Court, MASON, J. This is an action of trespass brought in a justice's court, to recover damages for the defend- ant's cow getting into the plaintiff's garden and destroying his vegetables. &c. The evidence in the case shows that the de- fendant's cow, with some nineteen others, was found in the plain tiff's garden, and that the whole damage done by all of the cows, taking the highest estimate of any of the witnesses, was $20. The jury found a verdict against the defendant for $20 damages ; for which sum the justice rendered judgment, with costs of suit. The defendant appealed to the county court, where the judgment of the justice was affirmed, and the defendant has appealed to this court. The law is well settled, that the defend- ant is only liable for the damages done by his own cow, and not liable for the damages done by the cows of others jointly with his own. (17 Wend. 562. 2 Conn. R. 206. 2 Verm. Rep. 9. 1 Denio, 495, 501. 20 Pick. 477.) In cases like the present, the law fixes a distinct and definite rule of damages. It gives to the party injured his direct pecuniary los, sand no more. (Greenl. Ev. 253. Sedg. on Dam. 37. 11 Barb. 370.) In this case the jury either mistook the rule of damages, or else they inten- tionally disregarded it. In either case they have violated a settled principle of law. The party was as much entitled tc have this rule of law observed in the trial of this cause, as any other upon which his rights depended. It will not do to say that as it was not proved that the other cows did any of the damage, the judgment therefore should be affirmed. The only evidence in the case to show that the defendant's cow did this damage, consists in the proof that his cow was in the garden with the others, and that the damage was done by these cows. In the case of Rudd v. Shever, (20 Pick. 479,) in considering this question of damages done by the dogs of different owners, the court say, " -if it could be proved what damage was done by one dog and what by the other, there would be no difficulty, and on failure of such proof each owner might be liable for an equal share of the damage, if it should appear that the dogs were of equal power to do mischief and there were no circumstances to vender it probable that greater damage was done by one dog ST. LAWRENCE SEPTEMBER, 1855. 43 [ French v. New. than by the other." In the absence of all proof, it seems to me that this is a sensible rule, and that we should infer that the cattle did equal damage, in the absence of any proof as to how much was done by each. The law cannot certainly be so unreasonaole as to presume that one cow did it all. The judgments of the county court and justice must be reversed. [OTSEGO GENERAL TERM, July 10, 1855. Shankland, Gray and Mason, J ustices.] 35 ^ LUTHER FRENCH vs. PHILIP E. NEW. fjf Uh 143 28a 147 Parties, after having by their bonds of submission to arbitration, required the award to be in writing, and subscribed by the arbitrators, may waive that requirement, by parol, and receive a verbal award, which will be binding on both. Thus, where a submission required the award to be made in writing under the hands of the arbitrators, subscribed by them or any two of them, and attested by a subscribing witness, but before the arbitrators made any award, the par- ties said to them they had substituted other writings which they had drawn up , and executed, under seal, in place of a formal award in writing, and that all they, the parties, wanted to know, was how much was awarded, and they could 'fix the amount, in the instrument, as they had agreed ; and that they did not want the award in writing, but wished the arbitrators to award verbally; IT WAS HELD that the parties had waived that part of the condition of the submis- sion bond which required the award to be in writing. Such an agreement for a parol award operates as a new submission ; and the parties are estopped from saying that the parol award, made in pursuance of their directions, is void. The principle that he who prevents a thing being done, shall not avail himself of the non-performance he has occasioned, applies to such a case. Where a submission was in writing, under seal, to hear the evidence in reference to a certain lease, " to the end that all matters in controversy in that behalf, between the parties, should be finally concluded," &c.,and a subsequent agree- ment between the parties recited that they had agreed " to submit their matters in controversy" to arbitration ; Held that it was the intention of the parties that the arbitrators should pass upon all matters in reference lo the lease ; whether all the rent had become due or not ; so as to end all controversy be- tween them which had arisen, or might arise, out of that instrument; and that consequently the award was not void although it embraced the rent not thcu- due, and damages subsequently to accrue, under the lease. VOL. XX. 61 482 CASES IN Tin-: SUPREME COURT. French v. New. Held also, that parol evidence that the rent yet to become due, and other clair. s, were taken into consideration by the arbitrators, was proper, for the purpose of showing whether the arbitrators took into consideration matters beyond the ' submission, or not. Where there is a submission, by writing under seal, of all matters relating to a lease, to arbitration, and a subsequently executed parol agreement between the parties, consenting that the arbitrators may make a verbal award, an award by parol will discharge the lease. Proof that, previous to a submission of matters respecting a lease, the rent due thereon &c., one of the arbitrators counseled with the defendant, and told him his rent was too high, will not show such corruption, partiality or gross mis- behavior as would invalidate the award at law ; and is therefore inadmissible. Such evidence cannot be given by the arbitrator himself; on the ground that it would go to impeach his award. Where a submission purported to be made pursuant to the provisions of the stat- ute for determining controversies by arbitration, but it contained no clause agreeing that a judgment should be entered in a summary manner upon the award t6 be made ; Held that this was not a submission under the statute. (1 R. S. 541.) was an action brought to recover of the defendant the last two installments of rent due upon a lease under seal. executed by the defendant to the plaintiff, commencing on the 1st day of April. 1849, and' ending April 1, 1852. The plaintiff claimed to recover the amount of the rent and interest, and also damages, in consequence of the non-performance by the defend- ant of certain covenants in the lease. The execution of the lease, which was dated March 16, 1849, was admitted by the pleadings, and it was read in evidence on the trial at the Sara- toga circuit, in Oct. 1854. The defendant set up in his answer, and proved on the trial, that after the first and before the second installment of rent became due, on the 27th day of March, 1852, the plaintiff on the one part, and the defendant George E. New on the other part, entered into arbitration bonds, dated on that day, which recited that a controversy existed between the par- ties, and that the arbitrators were "to hear the evidence, testi- imony and proofs (exclusive of any other Avitness) of the aforesaid parties, in reference to a certain lease given on or about the 'IQt/i. day of March, 1849, by Luther French to Philip E. New," and concluded as follows : " So as the award of the said arbitra tors be made in writing, subscribed by them or any two of them, ST. LAWRENCE SEPTEMBER, 1855. 483 French v. New ind attested by a subscribing witness, ready to be deliverod to the said parties on or before the 10th day of April, 1852." " To the end that all matters in controversy in that behalf between the said parties shall be finally concluded, pursuant to the pro- visions of the statute, for determining controversies by arbi- tration." The defendant also gave in evidence two instruments in writing bearing even date with the arbitration bonds, but ev- idently executed after them, inasmuch as they recited the exe- cution of said bonds of submission, except that Lyndes Emerson was named in said instruments as one of the arbitrators, instead of Levi Rowley These instruments provided the mode and times of payment of the sum that should be awarded to the plaintiff, instead of leaving it to be fixed and regulated in the award, and only making it necessary for the arbitrators to award the sum which they should decide the defendant should pay to the plaintiff. The arbitrators did not make any award in writ- ing. But it appeared in evidence that they all met and were sworn as arbitrators, in the latter part of March, 1852, and that the parties had a hearing before them. The lease was produced before them, and the matters were finally submitted to them on the 31st day of March, 1852. The parties made their state- ments, among which the plaintiff said he claimed for rent due on the lease, and the lust year's rent ; also for clover seed, tim- othy seed, 8 acres of rye, a stack of oats, and wood delivered at the door. The defendant insisted that he paid too much rent for the farm. He also made claims, on his part. At the time they submitted and before the parties left the room to the arbi- trators, the plaintiff told them to mix it up in any way to do justice to themselves. About the time the parties left the room. Green, one of the arbitrators, said he supposed the award must .je in writing. The plaintiff said, " ~You need not bring the award, or judgment, in. in writing. We have a writing drawn up, and we merely want to know how much the award is, and we will fix the award on the instrument as we have agreed. All we want the arbitrators to do is to fix the amount, and declare it verbally." The defendant also said, at the same time, that the award need not be in writing. The arbitrators were then 484 CASES JN THE SUPREME COURT. French v. New. left alone, and after they had agreed upon their award they no- tified the parties, who appeared before them^and the tvwurd, which vas unanimous, was declared in their presence. The arbitrators awarded that the defendant should pay the plaintiff $260. And the plaintiff was to pay the arbitrators. He paid two of them immediately, and the third one afterwards. After the award was declared, the plaintiff said he would see his attor- ney, Mr. Hoag. The latter soon after came into the room, and drew up and served on the arbitrators a ^svritten revocation of the submission. The plaintiff offered to show by one of the ar- bitrators, that previous to the submission he, the arbitrator, had counseled with the defendant and told him his rent was too high. This was objected to by the defendant's counsel and rejected by the judge, and the plaintiff's counsel excepted. The defendant offered to prove that he had tendered full performance of the award, on his part, according to the terms of the agreement ex- ecuted after the submission bonds. This testimony was objected to as immaterial, and excluded by the judge. The evidence be- ing closed, the judge inquired of the counsel if there was any question of fact which either of them desired to submit, in case he should hold the award valid, and was answered there was not. The defendant's counsel then moved the court to nonsuit the plaintiff; which motion was granted, on the ground that the award was valid and was a bar to the action. The plaintiff's counsel excepted, and the court ordered that the case be heard in the first instance at general term. A motion was now made to set aside the nonsuit, and for a new trial. /. T. Carr and A. Pond, for the plaintiff. Merrill fy McKindley, for the defendant. By the Court, C. L. ALLEN, P. J. It is insisted on the part of the plaintiff, that in order to make a valid award, the arbitrators must pursue the authority contained in the submis- sion, strictly, as to the form, manner and time of its execution. There is little doubt but that the parties could give to the ST. LAWRENCE SEPTEMBER, 1855. 435 French v. New. arbitrators such powers as they pleased, and that they (the arbi- trators) were required to do as they were directed by the sub- mission bond. This, as a general principle, cannot be disputed. (Allen v. Galpin, 9 Barb. 246, 250. 11 John. 133. 6 id. 14. Cowcri fy Hill's Notes, 1030.) The great question in the case is, could the parties, after having required the award to be in writing, waive that requirement by parol, and receive a verbal award which would be binding on both 1 In the case of Perkins v. Wing, (10 John. 143,) the condition of the bond was that the award should be in writing ready to be delivered to the parties, or any of them requiring the same, on or before the first of September. The arbitrators, before the day, made their award in writing, and read it (>ver to the parties, who appeared to be satisfied, and one of them paid a part of the award, and did not then demand a duplicate, but on the day did demand a duplicate, or copy, which was refused. In an action on the award, the plea was no award. The court said, although the fact of demand and refusal should have been pleaded specially, yet if it had been properly in issue, the evidence was sufficient to show that the defendants had admitted a delivery or waived the necessity of any. That when the award was read and declared, and the defendant promised to perform it, and did in fact per- form it, that was a consummation of the business, and the defend- ants were concluded from alleging afterwards, that the award was not delivered according to the condition of the bond. That they were bound to speak then, at the time of the publication, and when the arbitrators were upon the point of concluding and dispersing, if they required further notice, publication and delivery. That no circumstances could be stronger from which to infer an acqui- escence in that mode of delivery, and a waiver of the necessity of one more formal. The case of Sellick v. Adams, (15 John. 197,) decided that where sworn copies of the award are delivered to the parties, by the arbitrators, and received without objec- tion, this will be deemed a waiver of their right to receive the original award. So it was held to be a waiver, if one of the parties should say to the arbitrators they need make no coun- terpart, as he would not receive it. (Buck v. Wadswort/i, 1 486 CASES IN THE SUPKEME COUKT. French v. New. Hill, 321, citing with approbation Sellick v. Adams. And see Howard v. Sexton, 1 Denio, 440.) The case in 1 Hill was after the revised statutes regulating arbitrations, and yet it referred to and sanctioned the cases above cited from Johnson. It was probably the intention of the parties in this case that the arbitration should be under the statute. (2 R. IS. 541, 1, et scq.} This is pretty evident from the concluding clause in the submission bonds, providing that all matters in controversy between the parties should be finally concluded '"''pursuant to the provisions of the statute for determining controversies by arbitration." And yet there was no clause in the submission agreeing that a judgment should be entered in a summary man- ner upon the award to be made in pursuance of the submission, as is required by the section just quoted. This was held to be ne- cessary by the court of errors, in the case of Wells v. Lain. (15 Wend. 99.) And the chancellor, in Bloomer v. Sherman, (5 Paige, 575, 578,) intimates that such was the opinion of the court in the former case, though he differed from a mnjority of the court, and decided, in the latter case, that the 23d section of the act, declaring that neither party shall have power to re- voke, the powers of the arbitrators, after the cause shall have been finally submitted to them by the parties, was applicable to all cases of submission to arbitration. Cope v. Gilbert, (4 Denio, 347 ; ) sanctions this last construction. We must follow, however, the decision of the court of errors, and hold, with that court, that this was not a submission under the statute. It was how- ever in writing, under seal, and required the award to be in writing, subscribed by the arbitrators or any two of them. And the question returns, could this requisition be waived, and the award be made verbally, as requested and directed by the par- ties ? It does not seem to be disputed that a parol submission may be followed by a parol award, or that a submission under seal may provide that the award may be made in writing under the hand of the arbitrators, without seal. (Kyd on Awards, 110, 227, 291. 2 Greenl. 69, fyc. 2 Hill, 271, and notes.} Where the submission does not require a written award, a ver lull award is good, at common law. (2 Barb. Ch. Rej>. 430.) ST. LAWRENCE SEPTEMBER, 1855. 437 French r. New. The submission in the present case required the award to be made in writing under the hands of the arbitrators, sub- scribed by them or any two of them, and attested by a sub- scribing witness. But before the arbitrators awarded, the parties, and particularly the plaintiff, said to them they had substituted other writings, which they had drawn up and ex- ecuted under seal, in place of a formal award in writing, and all they wanted to know was how much the arbitrators awarded, and they could fix the amount, in the instrument, as they had agreed ; that they did not wish the award in writing, but wished the arbitrators to award verbally. The instruments which they had thus executed and delivered to each other after the submission bond, after reciting the submission, promised and agreed how the amount awarded by the arbitrators to be due from the defendant to the plaintiff should be paid ; leaving it only necessary for 'the arbitrators to report the amount which they should find. They undoubtedly directed the arbi- trators to award the sum found, verbally, lest a written award should, as it well might, interfere with their last agreement. By those acts and directions I think they waived that part of the condition of the submission bond requiring the award to be in writing. (See cases before died, and 2 Barb. 316 ; 3 Jo 'in. 528; 2 Cow f^n $ Hill's Notes, 1030, and cases cited.} In Bloomer v. Sherman, where the time for making the award had been extended, the chancellor remarked that under a submis- sion by bond the time might be enlarged, by an agreement not under seal. And although in such case an action upon the bond itself could not be maintained, yet that the party injured by the breach of the agreement, or the non-performance of the award, must seek his remedy by a suit upon the submission im- plied ir. the new agreement taken in connection with the bond, or by an action upon the award made in pursuance of such sub- mission. And such was the doctrine in Freeman v. Adams. (0 John. 115,) and Armstrong v. Hasten, (11 id. 189.) See also 3 T. R. 542, note; 2 Wend. 587; 8 John. 392 ; 4 Cowen, 566.) The case of Fleming v. Gilbert, (3 John. 528.) is a very strong one in favor of this doctrine of waiver, which the court CASES IN THE SUPREME COURT. French v. New. say must always rest in parol. And I do not find that the de- cision in that case has ever been shaken, but it was recognized as good law in The Mayor of Neiv York v. Butler, (1 Barb. S. C, Hep. 325 ; ) and by the court in this district, in the case of Es- mond v. Van Benschoten, (12 Barb. 366, 370.) But it is argued by the plaintiff's counsel that if the trans- action, modified as it was by the parties, should be held by the court to amount to a parol award, or a parol submis- sion and award, and the remedy, if any, would be upon the new agreement, or an action upon the award founded upon it, yet. that in this case, the lease, being a specialty, could not be changed or modified by the parol submission and award. The general principle for which the counsel contends is undoubtedly correct ; as for instance, where by law the mat- ter awarded is not arbitrable, or where from the subject of arbi- tration a writing is necessary to pass the right to the thing in demand, or to destroy the demand. (2 Cow. $ HilVs Notes, 1025. Lagsdon v. Roberts, 3 Monroe, 257. Kyd on Awards. 52, 53.) But Mr. Kyd remarks that most of the cases which cannot thus be submitted of themselves, may, when joined with other things of an uncertain nature ; because there is then an uncer- tainty about the whole of the disputes; as for instance, debt for arrears of rent ascertained by a lease for years. And it is to be remarked here, that there is an evident distinction be- tween maintaining an action on the bond, where there has been a parol modification of it, and setting up the award as a dis- charge from a strict compliance with the covenants in the lease. In relation to the title to land, it is well said that the decision of arbitrators cannot convey the title to land, but an award upon the title is binding upon the parties, and estops the plain- tiff or defendant from disputing the title affirmed by the award. ' ; An award, whether it relates to the title, the possession, or the location or boundaries of land, has not the operation of a conveyance, but the parties are concluded by their agreement from disputing the location or title as settled by the arbitrators. Its operation is in the nature of an estoppel The award in such case is not offered as evidence of title, out to prevent ST. LAWRENCE SEPTEMBER, 1855. 439 French v. New. either party from setting up a title which had been negotiated by the arbitrators." (2 Cowen $* Hill's Notes, 1037. Jackson v. Gagcr, 5 Cowen. 383, 387. Cox v. Jagger, 2 id. 638. Rob- ertson v. McNiel, 12 Wend. 578. Mitchell v. ^s-A. 7 GWe//, 185. Lory's .frr'rs v. Faw, 7 CVawcA, 171, 176.) It is insisted that the original submission having been in Avriting under seal, and the alleged waiver or agreement dis- pensing with a written award, having been made before any breach of the conditions of th'e submission bond, was a nullity, within the case of Howard v. Cooper, (1 Hill. 44.) I am aware that Judge Cowen in that case remarked that it was out of the power of both parties to alter the legal effect of the sealed sub- mission or a sealed contract, without seal. In that case an item contained in the submission had been withdrawn from the consideration of the arbitrators, by the agreement of the par- ties, by parol, and Avas % not passed upon by them ; and yet the court held that it could not thus be withdrawn, and that tho award Was conclusive upon it. It may be said here, in the first place, that the waiver was 'not entirely by parol, but by new instruments in writing executed by the parties undei seal ; and secondly, that the point of estoppel was not presented, or passed upon by the court. In Coleman v. Wade, (2 Seld. 44,) the award was in writing not under seal, relative to the guaranty of payment of rent reserved by lease under seal, and it was ar- gued that the claim was not merged in the submission bond and award. The court held otherwise, and decided that the award would operate as a bar to an action commenced on the lease, and the guarantors were discharged. It may be said, too. within the principle of Allen v. Jaquish, (21 Wend. 628,) cited in that case, that here was an agreement executed between the parties, by which the arbitrators were authorized and directed to make an oral award. Besides, the agreement for a parol award, as before remarked, operated as a new submission. (9 John. 37, and other cases above cited.} But on the ground of estoppel, alone, I am satisfied that the plaintiff is concluded from saying that the award is void. He ought not. and cannot, be permitted to deny his own acts. He inducc'l the defendant to VOL. XX. 62 490 CASES IN THE SUPREME COURT. French v. Xu\v. 2onsent, with himself, to direct the arbitrators to make a parol award. They particularly stated that they would make it in writing, as required by the bond. The plaintiff affirmed in the most explicit terms, that they (the parties) had drawn up arid executed an agreement between themselves, by which all mat- ters were regulated except the sum which the arbitrators were to award, and that all they wanted was an award by parol. And when the award is thus pronounced pursuant to his own direc- tions, and the defendant seeks to abide by it, and in part performs it by a prompt payment of the fees of the arbitrators, the plaintiff, finding it not conformable to his views or wishes, seeks the aid of the court to permit him to take advantage of his own wrong, although such a proceeding is contrary to upright dealing and good morals. Such a proceeding, in my judgment, would be rank injustice, and decidedly in conflict with all the cases OH this subject. The principle laid down in Fleming v. Gilbert. before cited, " that he who prevents a thing being done, shall not avail himself of the non-performance he has occasioned" cannot be made more applicable than to the present case. (Ami see 8 Ves. 480 ; 3 Hill, 215 ; 2 Seld. 44, 279 ; 12 Barb. 370 ; 77 Com. Law Rep. 83.) It would in fact be allowing the plain- tiff to perpetrate a fraud upon the arbitrators and upon the party. The last objection which I shall notice is that the award was void as to the rent not due, and as to damages subsequently to accrue. It is said in support ol this position, that a covenant cannot be discharged before breach but by an instrument under seal. And numerous authorities are cited by the plaintiff's counsel in support of this principle, and which cannot be dis- puted. The question is, whether they are applicable to the case which we are now considering. It must be borne in mind that the submission was in writing, under seal, "to hear the evidence, in reference to a certain lease given on or about the 16th day of March 1849, by Luther French to Philip E. New. To the end that all matters in controversy in that behalf between the Eaid parties should be finally concluded," &c. The subsequent agreements E and F, also recite that the parties have ' this ST. LAAYRENCE SEPTEMBER, 1855. 49] French v. New. :lay" [the day of the date of the submission bonds] agreed to "submit their matters in controversy" to arbitration. It is to be remarked, too, that the award was to be made on or before the 10th of April, 1852, ten days after the expiration of the lease. Now what was the evident intention of the parties, by this broad and comprehensive clause? Clearly that the arbi- trators should pass upon all matters in reference to the lease; whether all the rent had become due or not ; so as to end all controversy between them which had arisen, or might arise, out of that instrument. They intended, no doubt, to put an end to the lease, and to have a final settlement in relation to it. They evidently so understood the submission, as they went into all matters, before the arbitrators, as well relating to the rent due, as that which was to become due. They also litigated respect- ing the fire wood, oats, clover seed, and the eight acres of rye which must have been sown previously and was then on the ground. They finished the hearing on the 31st of March, only the day before the last rent would become due, and submitted all their matters to the arbitrators on that day. It is not for a moment to be supposed that they did not intend to, and did not in fact include the whole subject matter in relation to the lease, at that time. It is said it was proved by parol that the rent to become due, and other claims, were taken into consideration. This was -proper, to show whether the arbitrators took into con- sideration matters beyond the submission, or not. And it showed what the intention of the parties was in the written submission. (7 Hill, 329. 1 Barb. 325. 4 Denio, 194! And see Kyd on Awards, 52, 53.) But it is insisted that the parol 'award would not discharge the lease. This depends, again, upon the effect of the waiver, and upon the principle of estoppel, before discussed. If the submission included it, in all its terms, then if the award was good the lease was canceled and the plaintiff was driven to his remedy under the award. In Delacroix v. Bulkley, (13 Wend. 71, 75,) one of the cases relied upon by the plaintiff's counsel, Savage, Ch. J., in delivering the opinion of the court, remarks that the case of Fleming v. Gilbert proceeded upon the princi- 492 CASES IN THE SUPREME COURT. French v. New. pie that the plaintiff prevented the defendant from performing his contract, and therefore should not take advantage of his fail- ure ; but that in the case he wa's then considering nothing wa? done or sard ly the plaintiff to prevent the defendant from a lit eral compliance with his contract. He adds, " It will be seen that there has been no innovation upon established principles, and that the law remains, as it has always existed, that a sealed executory contract cannot be released or rescinded by a parol executory contract ; but that after breach of a sealed contract a right of action may be waived or released by a new parol con- tract in relation to the same subject matter, or by any valid pa- rol executed contract." Here was an executed contract under seal, submitting all matters in relation to the lease, and a sub- sequently executed parol contract that the arbitrators might award as they did, before any attempt at revocation by parol. Eddy v. Graves, (23 Wend. 82,) and Snydam v. Jones, (10 id. 180,) do not, as I understand them, conflict with this principle. Again, it is further argued that if the award could operate to extinguiah the rent already due, it could not affect that subse- quently to become due, and being void as to that, must be void in toto. It was not competent for the arbitrators to award upon claims not submitted to them. But it has been already shown that all matters in relation to the lease, as well the rent to be- come due as that already accrued, were included in the submis- sion. The submission may be extended so as to include claims not yet due from the one to the other by previous contract, so as to carry out fully the intention of parties to settle all matters between them, as well those existing at the time as those which may arise afterwards. (Kyd^ 142 to 149.) The evident and clear intention of the party, as before re- marked, was to extinguish the lease entirely. So the arbitrators understood, and awarded accordingly. And every reasonable intendment is to be made, to uphold their award. (19 Wend. 290. 1 Seld. 482.) The verbal award and the instruments E and F, may be construed together for the purpose of upholding it. The evidence offered by the plaintiff was properly rejected. The offer did not go far enough. It did not go to show such ST. LAWRENCE SEPTEMBER, 1855. 493 Hunter v. Hudson River Iron and Machine Co. corruption, partiality or gross misbehavior as would invalidate the award at law. (1 John. Ch. Rep. 191, 276. 2 id. 551, and various other cases.) Besides, in this case, the offer was to show, by one of the arbitrators, that he had previously conversed with the defendant and told him his rent was too high, &c. This, if any thing, was an attempt to impeach the award of the arbitrators by one of themselves. This cannot be done. ( Van Cortlandt v. Underbill, 17 John. 405. Butler v. Mayor drc. of New York, 1 Barb. S. C. Rep. 325.) The motion to set aside the nonsuit and for a new trial, must be denied with costs. [S-r. LAWRENCE GKNERAL TERM, September 3, 1855. Hand, C. L. Allen and James, Justices.] HUNTER and others vs. THE HUDSON RIVER IRON AND MA CHINE COMPANY. i In an action commenced under sections 206. &c. of the code, for the claim and delivery of personal property, where the complaint is in the form of the old declaration in replevin in the detinet, and charges that the defendants havo becojne possessed of, and wrongfully detain the goods and chattels, and the plaintiffs proceed upon the ground that the title to the goods was never changed, but remained in them, because the same were purchased of the plaintiffs, and the delivery thereof procured, through the false representations of the vendees as to their solvency and credit, proof of the purchase of the goods by the agent of the defendants, by their direction, and that at that time the defendants were insolvent, is competent evidence, on the question of fraud. In such an action it is not necessary the complaint should aver a demand of the goods ; or that it should contain an allegation of the insolvency of the defend- ants, or of any of the facts going to establish the fraud. It is sufficient if it is in the form of the old declaration in replevin in the detinet, and charges that the defendants have become possessed of, and wrongfully detain the goods and chattels in question. Where a complaint and answer are both very general in point of form, but neither party demurs, and both have gone to trial with a full understanding of their rights, and neither party has been taken by surprise by the pleading of Li* adversary, and a full and fair investigation has been had, upon the merit*. 431 CASES IX THE SUPREME COURT. Hunter v. Hudson River Iron and Machine Co. yuch an amendment will be allowed as may be necessary to confirm the coin ]>laint to the facts proved, and as will do substantial justice to botli parties. A sale and delivery of goods, procured through the false representations of the vendee in regard to his solvency and credit, passes no title whatever to '..lie property, as between the parties ; and the vendor may maintain an action, un- der the code, for the claim and delivery thereof. In such an action, where it appears that the purchase was made by an agent, it is material for the plaintiff' to show not only that the purchaser was insolvent. at the time of the purchase, but that such purchaser, or his agent, or both, knew of such insolvency. Hence the declarations of the agent, to third per- sons. made by him while acting for his principal and within the scope of his authority, and going to show such knowledge on the part of both principal and agent, are proper evidence. Where a mortgage purports to have been executed by a corporation, through its treasurer, a certificate of acknowledgment stating that the treasurer testified, before the officer, that he was the treasurer of the corporation ; that it was a corporation, but had no corporate seal ; that he signed his name to the mort- gage and affixed his own seal thereto, by the order and resolution of the trus- tees of said corporation duly made and given in writing ; and that the same was executed by him as such treasurer, for the purposes therein mentioned, is prima facie sufficient evidence of the due execution of the mortgage, without producing and proving the resolution of the trustees; where the instrument is offered for the purpose of proving an act or acknowledgment of their pecuniary condition, by the mortgagors. A principal is liable for the fraud or misconduct of his agent : and he not only cannot take any benefit from a misrepresentation, fraudulently made by tho agent, but is bound to make compensation for injuries sustained by others, thereby. And this, although the principal may be innocent ; provided tho agent acted within the scope of his authority. There need not be express authority to make a particular representation, but tho authority may be implied, as incident to a general authority. A gcneirl authority to an agent to purchase goods on credit, is an authority U make the necessary representations as to the credit and solvency of his principal Such authority is necessarily incident to the power to purchase on credit. And declarations made by the agent, while applying for goods on credit, as to tbe credit and solvency of his principal, are part of the res gestcs, and are equally obligatory upon the principal as if made by himself. In such a case, even if the principal does not know, at the time, that the repre- sentatinns of his agent are false, he is liable to the vendor, upon the principle that of two innocent parties the one shall suffer who, by his agent causes the injury. I^IIIS action was commenced under section 206 of the code ? for the claim and delivery of personal property. The com- plaint averred that the defendants were a manufacturing com ST. LA WREXCE- SEPTEMBER, 1855. 495 Hunter r. Hudson River Iron and Machine Co. pany, formed under the act of March 22, 1811. That the co mpany became possessed of, and wrongfully detained from the plaintiffs, the goods and chattels described in the schedule annexed to it, to the value of $1500, and demanded judgment for that amount. The answer denied the allegations in the complaint, and averred that the goods were wrongfully taken from the possession of the defendants by the plaintiffs or their order, and delivered to the plaintiffs on the 3d of June, 1854, and prayed for a return, with costs. The action was tried at the Washington circuit, in Octo- ber, 1854. by a jury. The plaintiffs, after proving the incorporation of the company, introduced as a witness Charles Amerman, who proved the partnership of the plaintiffs, which had existed since January, 1852. It was here admitted by the defendants' counsel that the property and goods described in the complaint were purchased of the plaintiffs by Simeon Mears, as the treasurer of the de- fendants, and by the direction and under the authority of the defendants, on the 18th of April, 1854 ; that the value thereof was $1118.03 ; and that at that time the company was insolvent for many thousand dollars. The defendants' counsel objected to the evidence thus admitted, on the ground that under the plead- ings the evidence was not admissible, as there was no allegation of the facts, in the complaint. The objection was overruled, and the defendants' counsel excepted. The witness then further testified, among other things, as follows : " I was present at the time of the sale. I was acting as book-keeper. Mears came to the office of the plaintiffs, and after some general conversation with Mr. Hunter, one of the firm, he spoke about settling his account and purchasing more goods. In the meantime I had drawn out an outline or statement of his account. While thus occupied, Mr. Buckley (another member of the firm) came in and asked Mears how he was getting along. Mears answered that he was doing a good business, and had been. Mears wished to settle the outstanding account and give extended notes. He was act- ing as the agent of the company, all this time, and it is the account of the defendants of which I have been speaking. Buck- ley said iron was fetching such good prices the last year that he 496 CASES IN THE SUPREME COURT. Hunter v. Hudson River Iron and Machine Co ought not to ask an extension. Hears replied that they, were doing very well; had been doing well; and spoke of another branch of the iron business a rolling machine that he was about to engage in, and wished Buckley to take an interest in it. Buckley declined." After some further conversation, the wit- ness testified, it was finally agreed that three notes should be given by the defendant, one of $406 and over, which was pay able in May following, and two others, for $280 each, at five and six months. Mears signed these notes as treasurer. Buck- ley then called Cowles, his salesman, and told him to sell Mears all the goods he wanted. The same day Mears, as agent, pur- chased goods of the plaintiffs, on credit, to the amount of up- wards of $1300. On his cross-examination the witness testified that when Buckley first entered the store, that morning, the first salutation from him was "Hallo, Mears ! How are you getting along?" He said, "We are, and have been, doing a good business," or " we are doing a good business, and have been doing a good busi- ness. 1 ' Buckley told him he supposed he had come down to purchase goods, and he said he had. Buckley said, " I suppose you are yet doing well." Mears replied " Yes," or " certainly." Mr. Cowles, the salesman of the plaintiffs, testified that after receiving directions from Buckley, as testified to by Amerman, he sold Mears, as agent for the defendants, on the 18th of April, 1854, goods to the value of about $1400, and that he afterwards identified a portion of the goods, to the amount of $1118.03, on the bank of the canal, which were delivered to the sheriff, for the plaintiffs, and which were afterwards sold by the plaintiffs. William, H, Dyke, another witness sworn on the part of the plaintiffs, testified that he was connected with the firm of Ham- mond and others, at Crown Point, called the Crown Point Iron Company. This testimony was objected to as immaterial, but the objection was overruled, and the defendants' counsel excepted. The witness further testified that his company had large deal- ings with the defendants, and that there was a balance due them from the defendants, on the 18th of April, 1854, of from $10,000 to $20,000, which was not paid when it fell due. In relation to that indebtedness, the witness said he had a conver- ST. LAWRENCE- SEPTEMBER, 1855. 497 Hunter v. Hudson River Iron and Machine Co. sation with Mears, the first week in April of that year, and was asked what the conversation was. The question was objected to by the defendants' counsel, but the objection was overruled, and the defendants' counsel excepted. The witness testified that Mears expressed the inability of the company to pay this debt, amounting at that time to between eleven and twelve thou- sand dollars, and more coming due in a day or two, and wished for an extension of time. The witness made the remark that there was between four and five thousand dollars under protest. Mears said it was impossible to pay, and remarked that if he could not get an extension from creditors he would have to stop business, and give up the property for the benefit of creditors. He, Mears, engaged to come to Crown Point the next week and make an exhibit of the affairs of the company to Hammond. He did not come, at the time appointed, but did come the fore- part of May following, and made a statement to Hammond, by which he said that* the indebtedness of the company was from seventy to seventy-eight thousand dollars, and that the amount of the assets was from thirty to forty thousand dollars. Russell W. Pratt testified for the plaintiffs that he was a trus : tee of the company in April, 1854, and was present after the middle of May of that year, when Mears made a statement orally, by items, of the indebtedness of the company. He stated the amount of the indebtedness to be about $80,000, and the assets at $20,000 or $21,000. This was a day or two before it was publicly known that the company had failed. It was not known to the witness that the company was insolvent, before this state- ment was made. The defendants' counsel offered to prove by this witness, that at the time of the conversation and interview testified to by him, none of the board of trustees present knew of the insolvency of the company, and that they all, severally except Mears, then expressed their surprise at the condition of the company, as then disclosed by Mears. The plaintiffs' coun- sel excepted to that part of the offer which went to prove the declarations of the company, as immaterial and improper. These were excluded, and the defendants' counsel excepted. No state- ment of the affairs of the company had been made for three years VOL. XX. 63 498 CASES IN THE SUPREME COURT. Hunter v. Hudson River Iron and Machine Co. previous to that time, although the witness had acted as secre- tary of the board for a portion of that time. The plaintiffs offered in evidence an exemplified copy of & mortgage from the defendant to Jonathan S. Beach and Simeon Mears, dated Jan. 30, 1854, acknowledged June 5th, 1854. The mortgage was executed as follows : " By order of the hoard of trustees, as per resolution of board, Fort Edward, Jan. 28, 1854. For the Hudson River Iron and Machine Co. S. MEARS, Treasurer." [L. s.] The certificate of acknowledgment was as follows : " State of New York, county of Washington, ss. On this 5th day of June, 1854, before me personally came Simeon Mears, treasurer of the Hudson River Iron and Machine Company, to me known, who being by me duly sworn, did depose and say that he resides in the village of Fort Edward, in said county, that he is the treasurer of the Hudson River Iron and Machine Company, that the said company is a corporation, but has no particular corporative seal, that he signed his name to the with- in, and affixed the seal thereto by the order and resolution of the trustees of the said corporation, duly made and given in writing, and that the same was executed by him as such treas- urer, for the purposes therein mentioned. Eowm CRANE, Justice of the Peace." The defendants' counsel objected to the introduction of this mortgage in evidence, unless the authority of Mears to execute it, from the company, was shown. They insisted that it was immaterial ; and that the proof of authority, contained in the certificate, was not evidence, and that the paper was a nullity. The objections were overruled, and the defendants' counsel ex- cepted. The mortgage was then read in evidence. It covered all the property, real and personal, of the defendants, and was a mortgage of indemnity to Mears and Beach for $2500, to secure them for having indorsed the paper of the defendants to that amount. The plaintiffs here rested, and the defendants' counsel moved for a nonsuit on the following grounds : 1. That there was nv ST. LA WEENIE- SEPTEMBER, 1855. 499 Hunter v. Hudson River Iron and Machine Co. evidence to sustain the complaint. 2. That the declarations of Mears were made without authority, and if authorized, a fair construction would not enable the plaintiffs to maintain the suit. 3. That there was no proof that the Hudson River Iron and Machine Company knew they were false. 4. That' there was a total absence of proof to show that the defendants were insol- vent, at the time the representations were made. 5. That if they were insolvent, it did not make a case for relief in the pres ent form. The judge denied the motion, and the defendants' counsel excepted. Simeon Mears was then called as a witness by the defend- ants, and was objected to by the plaintiffs' counsel as interested. He was admitted by the court, and the defendants' counsel ex- cepted. He testified that he was the Mears referred to by the witnesses ; that he had no knowledge of the insolvency of the defendants, at the time of the purchase of the goods in question, but supposed they were doing a good business, at that time. He further testified, on cross-examination, that he was the treas- urer of the company, and had the general charge of its affair? as to a particular department ; that he did more of the business than any other individual. The notes of the company were giver by him as treasurer. He had the general charge of making sales. The books were kept at the store by clerks, and were ii his charge as treasurer. He frequently made entries on then and had daily access to them. He got the information from the books, which enabled him to make the statement testified to by Pratt. The goods in question formed part of the assets in that statement. That the company was indebted to him individually to between $12,000 and $20.000, though not in all that amount when the goods were purchased, and were otherwise largely in- debted at that time, and had had several notes protested for a large amount, before the 18th of April, and had been in the habit of having their notes protested for the last eight years. They were also largely indebted to their hands ; to one of whom, at least, they had been thus indebted for more than one year. Several suits had also been commenced against the company before the 18th of April. The extent of the business of thi 500 CASES IN THE SUPREME COURT. Hunter v. Hudson River Iron and Machine Co. company was about $100,000, and no examination or inventory of the state of its aifairs for two years previous to the time of the making of the statement testified to by Pratt. The witness purchased, and received money, and paid debts, and did a large share of the other business. The trustees had or took no active oversight of it. The proof being closed, the cause was summed up and sub- mitted to the jury, under the charge of the court. They found a verdict for the plaintiffs for $232 damages, and assessed the value of the property taken at $1118.03. A case was made, and judgment was suspended by the court, who ordered the case to be heard in the first instance at a gen- eral term. A motion was now made for a new trial. Hughes 4* Northmp and J. Gibson, for the plaintiffs. A. D. Wait and E. H. Rosekrans, for the defendants. By the Court, C. L. ALLEN, J. Several objections were taken by the defendants' counsel on the trial of this action, and have been urged on the argument here, which it will be proper first to notice and dispose of in their order. 1. It is objected that the evidence of the purchase of the goods in question by Mears as the treasurer of the defendants, and by the direction and under the authority of the defendants, on the 18th of April, 1854, and that at that time the company was insolvent, was improperly received under the pleadings. The action was commenced under section 206 of the code, for the claim and delivery of personal property. The complaint is in the form of the old declaration in replevin in the detiriet, and charges that the defendants have become possessed of and wrongfully detain the goods and chattels in question. The plaintiffs proceed upon the ground that the title to the goods was never changed, but remained in them, up to the time of the commencement of the action. They claim to succeed, and must succeed, if at all, on this ground alone. Hence they en- deavored to prove that the alleged purchase was made by Mears ST. LAWRENCE SEPTEMBER, 1855. 50 \ Hunter v. Hudson River Iron and Machine Co. by the direction of the defendants while the company was largely insolvent. This was competent evidence, on the question of fraud. It is urged that the complaint is insufficient, in not aver- ring a demand of the goods, and in containing no allegation of the insolvency of the defendants, or of any of the facts offered to be proved. This was not necessary. If the purchase was a fraudulent one, the plaintiffs still retained their legal right in the goods, unless, after discovering the act of fraud, they assent- ed to the sale, either positively or by such delay in reclaiming them as would authorize the inference of an assent. The old cases fully establish the position that a sale and delivery of goods, procured through the false representations of the vendee in regard to his solvency and credit, passed no title whatever to the property, as between the parties, and the vendor might maintain either trover or trespass or replevin in the cepit or detinet, to recover their value, even though the actual possession was in another. In such cases the declaration was sufficient if in the usual form, in those actions. (Ash v. Putnam, 1 HilL 302. Gary v. Hotailing, Id. 311. Olmsted v. Hotailing, Id. 317. Matteawan Co. v. Bentley and others, 13 Barb. 641. Root v. French, 13 Wend. 570.) The latter case was relied upon by the defendants' counsel to show the necessity of aver- ring a demand, in the complaint. But it is believed that it establishes no such position. It decides with the plaintiffs that a fraudulent purchase of goods gives no title to the fraudulent purchaser, and that the vendor in such case may maintain re- plevin for the goods. It then goes further and affirms the prin- ciple that a bona fide purchaser from the vendee of goods obtained by fraud, without notice, will under certain circum- stances, be protected. And, to maintain an action against him, a demand, in some cases, must be made before suit brought. But no such demand is necessary as against the fraudulent vendee. An action, in the nature of trespass, or for the wrongful deten- tion of the property under sec. 206 of the code, may be main- tained immediately ; that section having been undoubtedly in- tended as a substitute for the old action of replevin. (6 How 502 CASES IN THE SUPREME COURT. Hunter v. Hudson River Iron and Machine Co. 339.) Besides, in this case, no objection was taken, on the trial, of want of proof of demand. The cases are somewhat conflicting as to what is necessary to he averred in the complaint in an action like the present, under the code. But I think the weight of authority is with the plaintiff, as to the form which he has adopted in this case. A direct and issuable averment that the goods claimed were the property of the plaintiffs ; nothing being necessary on their part to be returned, in order to restore the defendants to the condition in which they were at the time of the sale., has been held to be sufficient. ( Vandenburgh v. Van Valkenburgh, 8 Barb. 217. 13 id. 641.) It has been too often decided that facts, and not the evidence of facts, should be pleaded. The testimo- ny in this case went to show that the goods were fraudulently obtained, and that therefore the title to the property was not changed, and I think was properly received. The defendants might have required the complaint to be made more definite and certain, under sec. 160 of the code. And even if it should be held to have been necessary to set out the facts more fully, I am disposed, after trial, and when the party has had the full benefit of any defense which he chose to make, to grant the plaintiffs leave to amend, so as to conform their complaint to the facts proved. That portion of the answer which avers that the goods in question were the property of the defendants is as general as the complaint. Neither party demurred, and both have gone to trial with a full understanding of their rights. Neither has been taken by surprise by the pleading of his adversary. A full and fair investigation has been had, upon the merits, and such an amendment should be allowed as will do substantial justice to both. (Code, s 169, 173.) 2. It is further objected that the testimony of the witness Van Dyke was improperly received. It was material for the plaintiffs not only to show that the company was insolvent at the time of the purchase, but that the defendants, or Mears the agent, or both, knew of such insolvency. (McCrackan v. Chol- well, 4 Seld. 133.) The testimony of Van Dyke went to show this knowledge, on the part of both, and was therefore proper ST. LAWRENCE SEPTEMBER, 1855. 5()3 Hunter v. Hudson River Iron and Machine Co. [t is said that the testimony only proved the declarations of Meats ; that such declarations were not within the scope of his authority, even if an agent, and were therefore hearsay and im- material. Even if this were so. they were proper to show Knowledge in Hears, who afterwards testified, on the part of the defendants, that he did not know, at the time of the purchase, that the company was insolvent, and that he made the declara- tions to the plaintiffs Which were proved, in good faith. But Mears was acting, at the time of those declarations, within the scope of his authority. He was transacting business with the witness as one of the firm of Hammond & Co. to whom the com- pany was largely indebted, as their agent. He was endeavoring to obtain an extension of time, and as one inducement to the witness to consent, represented to him that unless time could be obtained the company must stop business and give up their property for the benefit of their creditors ; that their indebted- ness was from 75 to $78,000, and their assets amounted only to about 30 or $40,000. This conversation occurred the first week in April, a week or fortnight only before the purchase from tbe plaintiffs. The testimony, in my judgment, was clearly admis- sible, and the authorities hereafter cited abundantly show it. 3. It is insisted that the proof offered, that all the directors present at the time of the statement made by Mears, except him, expressed their surprise at the condition of the company, ought to have been received. The court permitted the defendants to show that none of those directors knew of the insblvency of the company, at that time, which could have been done by calling upon them to testify, as Pratt, one of them, had done. But the expression of their surprise was a matter wholly immaterial, and was properly rejected. It was a matter of no consequence, as will be hereafter shown, whether the defendants knew of their insolvency or not. But if it were, their expressing a surprise at Mears' statement would not show a want of knowledge on their part. 4. The next objection interposed by the defendants is that the mortgage was improperly received in evidence. The certifi- cate of the justice states that Mears testified that he was the .504 CASES IN THE SUPREME COURT. Hunter r. Hudson River Iron and Machine Co. treasurer of the company ; that it was a corporation, but had i.a corporate seal ; that he signed his name to the mortgage and affixed the seal (his seal) thereto, by the order and resolution of the trustees of said corporation, duly made and given in writ- ing, and that the same was executed by him as such treasurer, for the purposes therein mentioned. In Johnson v. Bush, (3 Barb. Ch. Rep. 207, 233,) where the same objection was taken, as here, that the resolution of the board of directors ought to have been produced and proved, the chancellor decided that for- merly the execution of the instrument under the corporate seal, if there was one, (and under the seal of the treasurer if there was no corporate seal.) was prima facie evidence of authority to execute the deed, which might be overcome by showing, either directly or circumstantially, that there was no authority, either general or specific, and that now it may be overcome by showing that there was no resolution of the board. The certificate in this case recites all that is necessary, in the first instance, and it would have been a very easy matter for the defendants to show that no such resolution had ever been passed, and that Mears swore falsely in so testifying. The mortgage was dated in January, 1854, but was not acknowledged until June of that year. Nevertheless, Mears, who was the treasurer, knew of its existence when it was executed, and it was not pretended that it was not made on the day it purports to bear date. It was properly received in evidence, therefore, even if not sufficiently proved as the act of the company, to show a full knowledge in A[ears of the condition of the company on the day of its date. And it is not tc be presumed, in the absence of all proof to the contrary, that Beach, who was involved with Mears in large lia- bilities for the company, did not know of its existence. This evidence was in a manner collateral, and was introduced to show an additional fact tending to prove the insolvency of the defend- ants, and a knowledge on the part 10 CASES IN THE SUPREME COURT. Stone v. Sprague. and on the vendor to convey the property purchased, an offer and readiness to perform on the part of the purchaser, is sufficient, without tendering a deed ready to be executed by the vendor ; especially where the vendor refuses to convey at all. THIS was an action of ejectment, brought to recover a lot of land at Port Henry, in the county of Essex. The action was tried at the circuit in that county in July, 1854. The plaintiff's counsel introduced in evidence the counterpart of the agreement, a copy of which it was admitted was contained in the answer. That agreement was dated the 9th day of April, 1848. and was executed by the parties. The plaintiff agreed to sell, and the defendant to purchase, the lot in question, and upon which it was recited therein the defendant had erected a brick dwelling house, for the sum of $742,47. to bo paid in five years from the date, with annual interest. The de- fendant was to be at liberty to possess and occupy the premises so long as he complied with " all the stipulations and agree- ments to be performed on his part, and no longer." The plain- tiff agreed to execute and deliver to the defendant a warranty deed of the premises, on payment of the principal and interest, in the manner and at the times mentioned in the agreement ; but in case of default in the payment of the principal and in- terest, at the time or times when they became due, or of failure in the performance by the defendant of any of the conditions of the agreement, it was to become null and void, and the plaintiff was to be at liberty to immediately enter into the possession and occupancy of the premises and to be forever discharged from the agreement. The plaintiff was to have the right to occupy the brick part of the house on the lot, as he then occu- pied it ; and so long as he so occupied it, he was to allow the defendant the interest of the principal sum to be paid for the premises, as rent. There were other stipulations contained in the agreement, which was under seal, but it is not necessary to recite them here. The plaintiff proved that he had occupied the brick part of the house on the premises described in the agreement, before and since the date of the contract, up to the time of trial, and that the defendant had been in possession of ST. LAWRENCE SEPTEMBER, 1855. 5\\ Stone V. Sprague. the remaining part of the said premises, and that the value or yearly use of said part, was worth $50 a year. The plaintiff having here rested, the defendant's counsel moved for a nonsuit on the following grounds : 1. That the plaintiff had failed to prove a cause of action. 2. That the plaintiff should have shown a demand of the possession of the premises, previous to the commencement of this action. 3. That the defendant was entitled to notice to quit. The motion was overruled by the court, and the defendant's counsel excepted. The defendant then proved the execution by the plaintiff of two several extensions of the agreement, which were indorsed on the counterpart held by the defendant, and which were read in evidence. The first was as follows : " I hereby agree to extend all the conditions of payment, and other matters within contain- ed, to the 25th of April, 1853. Port Henry, April 8, 1853." (Signed by the plaintiff.) The second extension read thus : " I hereby agree to further extend all the conditions of pay- ment and other matters within contained, from the 25th of April, 1853, to the 15th of May, 1853. Port Henry, April 23. 1853." (Signed by the plaintiff.) Chilion A. Trimble, a witness for the defendant, testified as follows : " Defendant engaged me to raise the money and fulfill the contract with the plaintiff, and was to give me security on the place. I had raised the funds, and went up the day before the original contact expired, and had an interview with the plaintiff, at which the defendant was present. I told the plain- tiff I had the specie to pay up the contract, and asked him if he would receive it and give a deed. He said he would not receive any thing, nor give a deed. He seemed to complain that he had not had such privileges as he ought to have, in the house. He said they must settle, and he would not give a deed till they did. I suggested to them that they had better settle or leave it out to men. They agreed to leave the question as to damages to Samuel Murdock and James S. Whallon. The plaintiff said he would see Whallon, and see at what time they could attend to it. I asked the plaintiff if he should insist on the specie, and he said he would not." The witness fur- CASES IN THE SUPREME COURT. Stone v. Sprague. ther testified that he went and saw the plaintiff, at the timo the first extension ran out ; that he had the money, and again offered to pay it to the plaintiff, but he refused to receive it, He said he could not get Whallon to attend to settle the qjies- tion. The witness told him he had the money ready for him and he could have it at any time when he would give a deed, lie refused to take the money, and made the second extension. A few days before the time expired of the last extension, the witness again offered to pay the plaintiff the money, but he again refused to receive it. The defendant's counsel here offer- ed to show that the plaintiff, in view of the delay in obtaining Whallon to attend to the settlement of the damages, agreed with the defendant, by parol, not to take advantage of the expi- ration of the contract, and said that the lapse of a few days would make no difference ; that all he wanted was his money. This offer was objected to, and rejected by the court, on the ground that the agreement was by parol, and the defendant's counsel excepted. The defendant's counsel then offered to show that on the 18th day of May, 1853, the defendant tendered to the plaintiff $745 in money, and a blank deed covering the premises, and demanded its execution, and that the plaintiff re- fused to receive the money and execute the deed. This offer was objected to, by the plaintiff's counsel, and rejected by the court, and the defendant's counsel excepted. The defendant's counsel then produced in court $745 in specif being the money before offered to the plaintiff, and offered to deposit the same, subject to the direction of the court ; which offer was objected to. and overruled by the court, and the defendant's counsel ex cepted. The court then charged the jury that the plaintiff was enti tied to recover, and that the evidence given by the defendant did not entitle him to any relief whatever ; and directed the jury to find a verdict for the plaintiff for the possession of the premises, and damages 'at the rate of $50 a year, for the use of the premises. The defendant excepted, and the jury found a verdict according to the direction of the court. The case now ST. LAWRENCE SEPTEMBER, 1855. 513 Stone v. Sprague. same" up on a bill of exceptions, and a motion was made for a new trial. A. R. Waldo and O. Kellogg, for the plaintiff. J. P. Butler and H. H. Ross, for the defendant. By the Court, C. L. ALLEN, P. J. I do not think the de- fendant was entitled to notice to quit. The case of Doolittle v. Eddy, (1 Barb. 74,) decided in this district, establishes the prop- osition, if it was not settled by previous cases, that an execu- tory contract for the sale and purchase of land, giving to the purchaser a right to enter and possess the premises until default in the payment of the purchase money, without any reservation of rent, or fixed time, is, as respects the possession, a license and not a lease, and the relation of landlord and tenant does not ex- ist. The defendant here was to have the occupation and posses- sion of the premises as long as he should fulfill and comply with the stipulations of the contract. But if he should make default then the agreement should be void, and the plaintiff was to be at liberty " to immediately enter into the possession and occu- pancy of the premises and was to be forever discharged from the agreement." The ease does not differ, in this particular, from the one cited ; and if the contract was broken on the part of the defendant, the plaintiff had a right to enter without notice, or demand of possession. The material and important question in this case is, whether the defendant had not substantially complied with the terms of the agreement, so as to be entitled to a deed for the premises. The agreement provided that on the payment of $745 in five years, with annual interest, the defendant should be entitled to a deed ; and if the plaintiff continued to occupy the brick part of the dwelling house, such occupation was to be considered as equivalent to the interest, by way of rent. There is no dispute as to the fact of occupation. It was proved, and indeed seemed to be conceded, on the trial, that the plaintiff had occupied this part of the dwelling house, from the time of executing the VOL. XX. 65 514 CASES IN THE SUPREME COCIKT. Stone v Sprague. agreement to the commencement of this action. Consec uently the interest was paid, and it was only necessary for the defendant to pay the principal sum, at the time appointed in the contract, to entitle him to a deed of the premises in question. The testimony is that on the day before the time for payment expired, an inter- view was had with the plaintiff, during which the amount was tendered, in specie, and a deed requested. He replied that he would not receive any thing, nor give a deed. Here then was an absolute tender of the money, a refusal to receive, and to execute a conveyance. It is true no deed was offered by the defendant, at that time, ready for execution. But that was not necessary, and if it had been, the general rule that a strictly legal tender may be waived, by an absolute refusal to receive the money or do the act required, clearly applies, on the prin- ciple that no man is bound to perform a nugatory act. Where there is a mutual obligation on a purchaser to pay the purchase money, and on the vendor to convey the property purchased, an offer and readiness to perform on the part of the purchaser, is sufficient, especially where the vendor refuses to convey at all (Bellinger v. Kitts, 6 Barb. 273.) It appears to nle that upon this part of the case alone, sufficient is shown to defeat the plain- tiff's right of recovery. But the plaintiff insists that his refusal to convey at that time, was based upon the fact that he had not enjoyed such privileges in the house as he ought to have done. He said they must settle, and he would not give a deed till they did. There was no proof, nor was any complaint of that kind urged or pre- tended on the trial. The parties, however, agreed to leave the question as to damages to Samuel Murdock and James S. Whal- k>n, and the plaintiff was to see Whallon, and ascertain when he could attend to the matter. The first indorsement was then made upon the contract, and signed by the plaintiff, but not un- der seal, agreeing to extend the time of payment from the 9th to the 25th of April, 1853. This was done, undoubtedly, to enable the arbitrators to determine in the meantime, as to what amount of damages, if any. the plaintiff was entitled to. On the 25th of April, or about that time, the money was again offer- ST. LAWRENCE SEPTEMBER, 1855. 515 Stone v. Sprague. ed to the plaintiff and a deed requested. He refused to receive the money or to convey. He said he had not been able to get Whallon to attend to it, and then indorsed another extension of the time of payment to the loth of May following, which would be Sunday. A few days before the 15th. the plaintiff was again offered his money, if he would execute a deed, which he refused. The defendant offered to show that at this time, and at others, the plaintiff, in view of the delay in procuring Whallon to at- tend to the settlement of the damages, agreed by parol, with the defendant, not to take advantage of the expiration of the con- tract ; and that he stated to the defendant that the lapse of a few clays would not make any difference with him. And the defendant proposed to follow up that proof by showing a tender of the money, and of a deed ready to be executed by the plain- tiff, on the 18th of May, 1853, three days after the expiration of the time by the last extension. This testimony was objected to by the plaintiff and rejected by the judge, on the ground that the agreement was by parol. And he seems to have regarded the extension of time as entirely void, because -not under seal, as he charged the jury that the evidence on the part of the de- fendant was wholly insufficient to constitute a defense, and that the plaintiff was entitled to recover. I think the learned justice erred. It has repeatedly been' decided that the time of performing a written contract under seal may be enlarged by parol. In the case of The Mayor $*c. of New York v. Butler, (1 Barb. 8. C. Rep. 325, 337.) the court remarked that such an extension is in effect a waiver of a strict performance of the conditions of the contract ; that no party can insist upon a condition precedent, when its non-per- formance has been caused by himself; that there maybe an effectual waiver by parol of a condition specified in a written or even a sealed contract. "It is a sound principle," says Ch. J. Thompson in Fleming v. Gilbert, (3 John. 528.) ' that he who prevents a thing-being done, shall not avail himself of the non- performance he has occasioned." The case of Wiswnll v. Mc- Gou-n, (2 Barb. S. C. Rep. 270,) relied upon by the plaintiff's counsel, does not militate against this doctrine. The court sny. 516 CASES IN THE SUPREME COURT. Stone v. Sprague. m that ease, that courts of equity will interfere in favor of par ties who were not ready to perform their agreement at the day. where a party has failed, through some unforeseen accident, or where there is something indicating a waiver of the objection, by the other party. But the case of Esmond v. Van Benscho- tcn. (12 Barb. 366,) adjudicated in this district, settles this question beyond dispute, and decides that " it is competent for parties on the expiration of a sealed contract, to enlarge the time for performance by parol." The extension of the time here was occasioned by the plain- tiff. The defendant was ready, at the day appointed, to pay the money and receive his deed. The plaintiff refused, and indorsed an extension of the time of payment on the contract, to enable him in the meantime to procure the services of Mr. Whallon, in assisting Mr. Murdock to ascertain the amount of damages to which he was entitled. He failed on his part to procure such attendance. He suffered the time again and again to elapse for the fulfillment of the contract, and finally attempted to shield himself under the technicality that the time for performance of the contract had expired ; that the agreement to extend it Avas not under seal, and was without consideration and void ; and that the tender afterwards made, which he admits was sufficient as to amount, was too late. In my judgment, to allow these allegations to avail, would be to permit the plaintiff to take a. most unjust advantage of his own wrong, and contrary to all the cases bearing upon the question. The plaintiff was not entitled to recover, and should at least have been nonsuited, if the de- fendant was not indeed entitled to the affirmative relief which he demands in his answer. It is objected that the answer is not sufficient for that purpose. If this were so, I should be inclined to permit the defendant to amend, as I consider his claim for relief clear and well founded. In actions of a legal character it now seems to be well settled that any defense, Avhether legal or equitable, may be interposed. That the same facts which would formerly have entitled a de- fendant to be relieved in equity may be set up in his answer as a full defense. (Dobson v. Pearce, 1 Duer, 142. 8 How. 416. ST. LAWRENCE SEPTEMBER, 1855. Stone v. Sprague. 1 Wli.itt. 507 and cases cited. Haire v. Baker, 1 Selden's Rep. 357.) This court said, in Dewey v, Hoag; decided at May term, 1854. on appeal from the decision of Justice Hand, (15 Barb. 365, 369,) that in order to avail himself of an equitable defense, " the defendant must become an actor in respect to his claim, and his answer must contain all the elements of a bill for a spe- cific performance, and he must ask and obtain affirmative relief. The judgment must be for the plaintiff that he recover the land, or for the defendant that the plaintiff convey to him on such terms as the court shall adjudge." In that case the defendant claimed no affirmative relief, and leave was given to him to amend. The court, however thought that the cause of action did not arise out of , the contract or transaction set forth in the complaint. Here the defense wholly arises out of the contract under which the defendant went into possession of the premises, and for a breach of which the plaintiff now seeks to recover pos- session. The defendant therefore brings himself within the 1st subdivision of sec. 150 of the code, and is entitled to avail himself of the defense which he sets up. The ease of Foot v. Hadaway, relied upon by the plaintiff, does not impugn the de- cision in Dewey v. tfoag. but coincides with and affirms it. I do not say that the answer is insufficient. I am rather in- clined to think that it is not. Be that as it may. I am of opinion that a new trial should be granted, with costs to abide the event. The defendant should have leave to amend his answer, if he deems it necessary. And unless the proof should materially differ from that produced on the former trial, the plaintiff should be adjudged to convey to the defendant the premises in question, on payment of the sum mentioned in the contract. Judgment accordingly. [ST. LAWRENCE GENERAL TERM, September 3, 1855. C. L. Allen, Socket and James, Justices.] 20 518 10h 145 CASES IN THE SUPREME CO [JET. THE PEOPLE, ex reL Marshall, vs. THE RAVENSWOOD, HAL- LETT'S COVE AND WILLIAMSBURGH TURNPIKE AND BRIDGE COMPANY. A plaintiff admits the corporate existence of a corporation, by suing it by its corporate name. And this admission will not be overcome by his alleging, in the complaint, facts which, if true, would go to show that the defendant had failed to comply with such terms as by the charter were conditions precedent to its organization as a corporate body. In such a case the latter allegations in the complaint may be disregarded, as be- ing irrelevant and impertinent; inasmuch as a plaintiff cannot be permitted to treat the defendant as a corporation in fact, for the purpose of suing it, and then insist that it never performed those acts, without performing which it could not have acquired existence. Where the complaint, in an action against a corporation, alleged that the defend- ant had violated its charter, and also that it had omitted to do certain things claimed to be essential to give it a legal, corporate existence, and prayed that the defendant might be excluded from the franchises claimed by it, and that the corporation might be dissolved ; Held, on general demurrer to the whole complaint, that the complaint, as a wl\ole, was good ; it containing but one subject matter, viz : the right of the defendant to continue to exercise certain franchises. CLERKE, J. dissented. ,4 PPEAL from a judgment entered at a special term, overrul- -LJL ing a demurrer to the complaint, with costs. The com- plaint alleged that the defendants, who claim to be a corporation, created by and under the act of the legislature of this state, entitled " An act to incorporate the Ravenswood, Hallett's Cove and Williamsburgh Turnpike and Bridge Company," passed April 18th. 1838. and an act, entitled, " An act to amend the char- ter of the Ravenswood, Hallett's Cove and Williamsburgh Turn- pike and Bridge Company," passed April 21st, 1840, had, in the county of Kings, for the space of six years, now last past, and upwards, used and still did use, without any legal authority, the following privileges and franchises, to wit : that of being a body politic and corporate in law, fact and name, by the name of the Ravenswood, Hallett's Cove and Williamsburgh Turnpike and Bridge Company, and by the same name, to plead and be impleaded, answer and be answered unto, and alsc the following privileges and franchises, to wit : that of demand ing and receiving from all persons passing over the bridge NEW YORK SEPTEMBER, 1855. The People v. Ravenswood, &c. Turnpike and Bridge Co. erected by the defendants over Newton creek, or over the bridge erected by them over Bush wick creek, certain specified tolls ; (including several instances in which no tolls were legally chargeable, the persons of whom they claimed the right to re- ceive the same, being exempt by law.) All which said liberties, privileges and franchises, the defendants, during all the time aforesaid had usurped, and still did usurp, as the plaintiffs were informed and believed. And the plaintiffs for a more particu- lar statement and specification, further showed upon information and belief, " that the capital stock of the defendants never has been nor is it now twenty thousand dollars, nor did any persons ever become stockholders, pursuant to the said acts, or either of them. And also, that the Ravenswood, Hallett's Cove and Williamsburgh turnpike road never was, and is pot now laid out by defendants, not less than four rods wide, arid that twenty- two feet of such width, never was, nor is it now bedded with stone, gravel, sound wood or other hard substance, well com- pacted, and of sufficient depth to secure a good and solid foun- dation, by the defendants, and also said road never was, and is not now faced with gravel, or broken stone, of a depth not less than nine inches, in such manner as to secure a firm and even surface, rising in the middle by a gradual arch, by the defend- ants, and also that the ditches on each side of said road, when practicable, never were, nor are they now so made as to render easy the passing of a sleigh thereon, by the defendants, and that they never were, nor are they now so formed by the de- fendants as to permit carriages conveniently to pass on and off the said turnpike, where it was or is intersected by other roads, and also, that the said turnpike road never was and is not now made by the defendants of such width as was and is practicable, not less than twenty-two feet in any one place, and also that the lower side where it was and is not of full width never was, and is not now furnished with a strong and sufficient fender or rail- ing, of the height of at least four feet above the surface of the said road, along which said fender ought to have been and to be constructed, and also, that no milestone or post ever was, or now is erected or maintained by the defendants on each mile of the 520 CASES IN THE SUPREME COURT. The People v. Ravenswood, &c. Turnpike and Bridge Co. road, on which was or is fairly or legibly marked or inscribed the distance of such stone or post from the place of the com mencement of the road ; also, that the defendants have never kept the whole of said road in turnpike order and repair ; and also, that they have never constructed, completed and kept in constant repair said road, with all the necessary buildings and appurtenances ; and also, that the defendants never have re- ported to the comptroller, an account of the expenses of the alleged construction of said road ; and also, that the defend- ants have not exhibited, annually, to the comptroller, an account of the sums of money arising from tolls, of the disbursements, and of the dividends actually made within the year ; and also, that defendants never gave notice to the governor that said road, or any ten miles thereof, was completed so that he might ap- point three discreet freeholders, to view the road, and report to him in writing, whether said road was completed in a workman- like manner, according to the requisitions of the title above specified, and of said alleged act of incorporation ; and also, that no governor of this state, has ever, by license under his hand, and the privy seal of the state, permitted the defendants to erect any gates and turnpike on sail road for the collection of any tolls ; and also, that the defendants did not, within two years from their incorporation, commence the construction of the said road, described in the act of incorporation ; and also, that the defendants did not, within five years from such incor- poration, complete the said road, according to the provisions of title ], chapter 18, and part 1 of the revised statutes, and of their act of incorporation. And also, that the defendants now are and for more than five years last past have been insolvent, and also for such time have neglected to redeem or fully pay their notes, claims, demands, judgments and other evidences of debt. And also, that the association intending to apply and who did apply to the legislature, for the act of incorporation of the defendants, and that the defendants in their application for the act, altering, amending and extending their charter, passed April 21st, 1840, did not cause notice of such application to be published, as required by the statute in such cases." And the NEW YORK SEPTEMBER, 1855. 52] The People v. Ravenswood, &c. Turnpike and Bridge Co. plaintiff insisted that no tolls should or could be legally collect- ed at any gate of the defendants on the said road in either of four cases specified ; in which cases the complaint alleged the defendants claimed a right to receive the same. Wherefore, the plaintiffs demanded that by the judgment of the court the defendants be excluded from the franchises and privileges aforesaid, and from all corporate rights, and that the said corporation be dissolved and their charter vacated, and that the plaintiffs recover against the defendants the costs of this action. The defendants demurred to the complaint, and assigned the following causes of demurrer : 1. That several causes of action had been improperly united ; 2. That the complaint did not state facts sufficient to constitute a cause of action. The demurrer was overruled with costs ; and judgment order- ed to be entered for the plaintiffs, pursuant to the prayer of the complaint, unless the defendants paid the costs, within ten days, and answered the complaint. Ogden Hoffman, attorney general, for the plaintiffs. C. N. Potter, for the defendants. MITCHELL, J. The complaint shows that the defendants have violated their charter, and also that they omitted to do certain things which might be essential to give them a legal corporate existence, and prays that they may be excluded from the franchises which they claim, and that the corporation be dissolved. The defendants object that several causes of action are improperly joined ; insisting that one cause treats the cor- poration as never having existed, and the other as having once existed and then lost its right to a continued existence ; and that these are inconsistent allegations, and the judgments to be rendered on them, incompatible. This mode of pleading is de- liberately sanctioned in The People v. The Saratoga and Rensselaer Rail Road Company, (15 Wend. 126.) If the former system did not allow it, the present does, as it allows VOL. XX. 66 522 CASES IN THE SUPREME COURT. The People v. Ravenswood, &c. Turnpike and Bridge Co. causes of action arising out of the same transaction or the same subject matter. There is but one subject matter in this case the right of the defendants to continue to exercise certain fran- chises. That right may be decided against them, by showing that they did not comply with conditions precedent to the origin of that right, or with conditions subsequent ; and in either case the judgment is that they be excluded from such franchises. (Code, 440, 443, $*e.) In like manner if a lease were exe- cuted to one, with a condition that the lessee should not enter until he should pay a certain bonus, and to be void on non-pay- ment of rent, the lessor if the lessee entered might show that neither the bonus nor the rent was paid, and claim the possession of the land. There would be but one subject matter the right to the possession of the land. The code recognizes that the action may be against the cor- poration for either kind of usurpation of franchises, when it provides ( 441) that the judgment, whether against a natural person or association, if they are found guilty of usurping a franchise, shall be that they be excluded from such franchise. The judgment of the special term, against the defendants, should be affirmed with costs. COWLES. J. Scire facias, quo warranto, and information in the nature of quo warranto, are abolished, and the remedies provided in part 2, title 13, chap. 2 of -the code, substituted in their place. This suit, and the pleadings under it, must be construed by those provisions. It is brought against the de- fendants as a corporation. The defendant is sued by and in its corporate name. The object is to vacate its charter, as provi- ded for in 430 of the code. It is brought against the corpora- tion, not against natural persons usurping, or assuming without proper authority to exercise corporate powers or rights. By the act of bringing the suit the plaintiffs assume that the defendants have acquired legal corporate existence ; for if it did not exist as a corporation, they could not be brought into court as such. The distinction between actions brought to vacate a charter or to annul the existence of a corporation, and those brought NEW YORK SEPTEMBER, 1855. 523 The People v. Ravenswood, &c. Turnpike and Bridge Co. against individuals acting as a corporation without being duly incorporated, is clear and broad. (Code, 430, 432.) The one lies against the corporate body itself, the other against the persons unlawfully assuming to act as a corporation. The one can only be brought on leave first obtained from the supreme court or a judge thereof. ( 430, 431.) The other may be brought without such leave. ( 432.) The judgment in the one case is that the " corporation be excluded from such corpo- rate rights, privileges and franchises, and that the corporation be dissolved." ( 442.) In the other case the judgment is that the person usurping such franchise be excluded therefrom ; and he may also be fined, in the discretion of the court. ( 441.) In case of judgment against the corporation, a copy of the judg- ment is to. be filed in the oifice of the secretary of state. ( 445.) This distinction under the code had been previously recog- nized. Formerly judgment of ouster was rendered when a lib- erty or franchise was wrongfully usurped, and that supposed there had been no grant ; but if the liberty or franchise had been granted, or had once existed and was forfeited for abuse or misuser, judgment of seizure was given. Judgment of ouster would operate upon individuals ; judgment of seizure upon a corporation. (The King v. The City of London, cited in 2 Term Rep. 523, and commented upon in The People v. The Saratoga and Rensselaer Rail Road Co., 15 Wend. 113.) In the last case the court say, " When therefore an information is filed under the revised statutes against a corporation by its cor- porate name, the existence of the corporation is admitted or rather that it once had a legal existence." And under the pro- visions of the code the same principle is evidently applicable. This suit being against the .corporation by its corporate name, must be held to admit that the defendant has once acquired legal and actual corporate existence, and that admission arising from the fact of the suit being brought against the defendant as a corporate body treating it and assuming it to be a legal entity, cannot, as it seems to me, be overcome by any averments in the complaint that it had not acquired existence. Otherwise, we are presented with the absurdity of assuming to bring into court a 524 CASES IN THE SUPREME COURT. The People v. Ravenswood, &c. Turnpike and Bridge Co. fictitious party, which neither has nor ever had existence ; and that too in face of the fact, ;is shown by the record, that the de- fendant sued is actually present in court, which is the case here; for the defendant is not only sued by this corporate name as an artificial person actually in existence, but appears in court by that name, and interposes this demurrer. There is. therefore, such a legal entity as this defendant. It is admitted by the plaintiff by the very act of suing, and is conceded by the de- fendant by the act of appearing and demurring ; and this broad fact cannot be overcome by the plaintiff's charging in his com- plaint facts which, if true, would go to showthat the defendant had failed to comply with such terms as by the charter were conditions precedent to its organization as a corporate body. The plaintiff has inserted in his complaint averments of that description, and which are only proper to be made when the suit is against individuals, for usurping or assuming to act as a body corporate when in fact they are unincorporated. These averments are, as I regard them, manifestly irrelevant and impertinent ; for the plaintiff cannot be permitted to treat the defendant as a corporation in fact for the purpose of proving it, and then assume to charge that it never performed those acts, without performing which it never could have acquired existence. But the complaint also charges other acts of neglect or omis- sions of duty which, if true, would forfeit the charter, and also avers the doing of acts which could only be performed by the defendant as an actual existing corporation ; thus in effect aver- ring its actual existence. As I regard the case, the plaintiffs admit the corporate exist- ence of the defendant by the .mere fact of suing it by its corpo- rate name, and consequently must be held to have admitted the performance by it of all such acts as by the charter were condi- tions precedent to its entering upon a state of legal existence. All averments to the contrary must, as I think, be regarded as irrelevant, and on motion be struck from the complaint or disre- garded on the trial. Such facts only can be proved at nisi prius in this case as go to show that by misuser, neglect or abuse, the defendants have forfeited their charter. NEW YORK SEPTEMBER, 1855. 525 The People v. Ravenswood, &c. Turnpike' and Bridge C\. Had all of the allegations which go to show that the defendants had never commenced a legal corporate existence been embraced in one count or statement of a cause of action, unaccompanied by any other averments, and the demurrer had been interposed to that one count or statement of the cause of action, I should have no hesitation whatever in holding the demurrer well taken, since such averments alone would show no cause of action against the defendant. But the complaint, while it states facts which are entirely irrelevant as I view the case, also avers other facts which are pertinent and proper, and which if true show that the defendant has forfeited its charter. The demurrer is to the whole complaint, and the complaint, as a whole, is good, while it contains much which is irrelevant and ought to be stricken from the record. But that remedy is by motion, not by demurrer. For these reasons I concur with my brother MITCHELL, that the judgment of the special term should be affirmed. But with leave to the defendants, should they appeal to the court of ap- peals, to withdraw their demurrer, and answer after the cause is remitted to this court, on payment of costs. CLERKE, J. The complaint alleges first, in substance, that the defendants have acted as a corporation, without being'legally incorporated ; and, secondly, sets forth several acts and omis- sions, in consequence of which they have forfeited their corpo- rate rights, privileges and franchises. The complaint demands judgment, first, that the defendants be excluded from those franchises and privileges and all corporate rights ; and secondly, that the corporation be dissolved and their charter vacated. These are inconsistent causes of action ; because they require different modes of proceeding, and the nature of the judgment appropriate to each is different. The language employed in The King v. Amery, (2 T. R. 515,) and in The People v. Saratoga and Rensselaer Rail Road Co., (15 Wend. 113,) is precisely applicable to this case. If the object of this action was to dispute the fact of the incorporation, it should have been commenced against individuals ; if to effect the dissolution of a corporation having an actual existence, then it is correctly in- 526 CASES IN THE SUPREME COURT. The People v. Ravenswood, &c. Turnpike and Bridge Co. stituted against the corporation. But the plaintiffs seek both objects, which are not only inconsistent with each other, and which require totally distinct and inconsistent judgments, but in order to accomplish the first object, the individuals unlawfully exercising corporate powers, which, it is alleged, were never conferred on them, should be sued by their respective names. In the one case, judgment of ouster would be rendered ; equiv- alent to the demand in this complaint that " the defendants be excluded," &c. ; and in the second case, the proper judgment would be that of seizure, equivalent to the other part of the demand in this complaint, " that the corporation be dissolved," &c. The one is rendered against individuals for unlawfully assuming to be a corporation ; the other is rendered against a corporation for a forfeiture of its corporate privileges. The two cases referred to by the counsel for the plaintiffs have no applicability to these questions. That of The People v. The Bank of Hudson, (6 Coieeti, 217,) was an information against an incorporated company, seeking a dissolution on the ground of forfeiture ; it Avas not pretended that it had not been duly incorporated ; but, being a corporation, it had forfeited its charter, and therefore the language quoted by the counsel had no relevancy in the connection in which it was employed ; and so the court expressly state, that the judgment must be against the corporate name, being a judgment of seizure. The other case referred to, (The People v. The Kingston and Middle- town Turnpike Road Co., 28 Wend. 193,) is of the same de- scription ; it was commenced for the purpose of effecting the dissolution of a corporation, which it was admitted had had an actual existence ; but which, it was alleged, was forfeited by a non-compliance with the requirements of the act of incorpora tion, in neglecting or refusing to perform the duties enjoined. It was not pretended, as in this case, that the defendants never had a legal existence, that " without legal authority they claimed to be a body politic and corporate in law, fact and name." I am, however, of opinion that the other facts stated in the complaint constitute sufficient ground for the forfeiture of the NEW YORK SEPTEMBER, 1855. 52? Roof v. Fountain. corporate privileges to entitle the plaintiffs to a judgmer.t of dissolution; but the first cause of demurrer is well taken. The judgment of the special term should be reversed, with costs. Judgment affirmed. NEW YORK GENERAL TERM, September 3. 1855. Mitchell, Clerke ami Cowles, Justices.] ROOF vs. FOUNTAIN, executor &c. A testator, by bis will, devised as follows : " I give and bequeath unto my daugh- ter Mary Roof the use or interest of $800, for and during her natural life ; and at her decease I give and bequeath uuto my granddaughter, M. A., $200 of the said $800." The testator subsequently directed his executors to divide among his children and grandchildren, in proportion to the several legacies bequeathed to them, " the said sum of $600 left at the decease of his daughter Mary, and all the residue and remainder of his estate not otherwise disposed of." After the testator's death, and during the lifetime of Mary Roof, two of the legatees, being married women, with their husbands quitclaimed to R. R., husband of Mary Roof, and to his heirs and assigns forever, " all the right and title which they then had or might thereafter have, to a certain legacy be- queathed to his wife Mary Roof" by the testator. Held that the thing released / or quitclaimed was only the legacy bequeathed to Mary Roof, Avhich was not the $800 or the $600, but only the use or interest of $800 for life ; the legacy bequeathed to her being only a life estate in the $800, and the legacy given to the other legatees being the reversion in that sum. That such reversion did not pass by the quitclaim ; and that consequently the executor was not liable to R. R. for the amount of the shares in the $600 which he had paid over to the assignors or releasors, after the death of Mary Roof. CLERKK, J., dissented. APPEAL by the defendant, from a judgment entered upon the report of a referee. The action was brought against the defendant, as executor of Ezra Fountain deceased, to recover the share or interest to which Alfred Wood and Electa his wife, and John Woolsey and Elizabeth his wife, were entitled after the death of one Mary Roof, wife of the plaintiff', under and by virtue of the will of Ezra Fountain deceased, in the sum of $600, 528 CASES IN TEE SUPREME COURT. Roof v. Fountain. part of the sum of $800 of which said Mary Roof had the use for her life by the terms of said will ; it being alleged that the said Woods and Woolseys had transferred their right thereto to the plaintiff, Rice Roof, who had given notice of such transfer to the defendant, the executor of Ezra Fountain, before he had paid over the same according to the terms of the will. On the trial, before the referee, the plaintiff offered and reacj in evidence the following instrument, the execution and delivery of which were admitted : " Know all men by these presents, that we, Alfred Wood and Electa his wife, of the town of Bedford, coun- ty of Westchester, and state of New York, have quitclaimed, and by these presents do quitclaim unto Rice Roof, of the city of New York, arid to his heirs and assigns forever, all our right and title which we now have or may hereafter have to a certain legacy be- queathed to his wife Mary Roof, by our father and father-in-law, Ezra Fountain. In witness," &c. A similar instrument, exe- cuted by JohnWoolsey and his wife, was also read in evidence. The plaintiff's counsel then produced and read in evidence the last will and testament of the testator, Ezra Fountain , the contents of which are sufficiently set forth in the opinions which follow. The referee reported, as matters of law, that Mrs. Wood and Mrs. Woolsey intended to convey, and did convey, by the instruments so executed by them, their respective shares of the said $800 to the plaintiff, and that the latter was entitled to judgment for the sum of $353.62, and costs A. L. McDonald, for the plaintiff. Ferris $ Frost, for the defendant. COWLES, J. By the will set forth in the proof it appears that the testator, Ezra Fountain, bequeathed unto his daughter " Mary Roof the use or interest of $800 for and during her nat- ural life ;" and by the same will $200 of the $800, upon the de- cease of the said Mary Roof, was given to the testator's grand- daughter, Matilda Adams. The will then provides that the sum of $600 left at the decease of Mary Roof (being that same NEW YORK SEPTEMBER, 1855. 529 Roof v. Fountain. sum of $800 above mentioned less the $200 given to Matilda Adams) and all the residue and remainder of his estate not oth- erwise disposed of, he divided among his children and grand- children, in proportion to the several legacies bequeathed to each of them by his will. During the lifetime of Mary Roof and after the testator's death, the plaintiff, who was the husband of Mary Roof, took from Alfred Wood and Elecia his wife and from John Woolsey and Elizabeth his wife, two several instruments by which they did " quitclaim unto Rice Roof of the eity of New York, and to his heirs and assigns forever, all our [the assignors'] right and title which we now have or may hereafter have to a certain legacy bequeathed to his [plaintiff's] wife Mary Roof, by our father and father-in-law, Ezra Fountain." The only legacy which Mary Roof took under the will was the " use or interest" for life of the $800. The above named Electa Wood and Elizabeth Woolsey who joined in the instru- ments above alluded to, to the plaintiff, it is admitted, were two of the parties who were by the terms of the will to share in the distribution of the " residue and remainder" of the tes- tator's estate, including the above sum of $600. The plaintiff claims that by the two conveyances or quitclaims to him he took the shares in the $600 which upon the death of Mary Roof, Electa Wood and Elizabeth Woolsey were to receive. And he now claims to recover from the defendant, who, as executor of Ezra Fountain, has paid over those shares to Mrs. Wood and Mrs. Woolsey. The difficulty in the case is, that the plain- tiff only bought from Mrs. Wood and Mrs. Woolsey and their respective husbands the " legacy bequeathed to his (plaintiff's) wife, Mary Roof" by the will of Ezra Fountain ; and all that Mary Roof took under that will, was the " use or interest" for life of the $800. Neither the $800, nor any portion of that principal sum, was a legacy to Mary Roof, and could not there- fore have been sold by Mrs. Wood and Mrs. Woolsey to the plaintiff. Even if the parties in fact intended to convey the contingent interest which they had in the $600. after Mary Roof's death, they have failed to so express it in the release or VOL. XX. 67 530 CASES IN THE SUPREME COURT. Roof v. Fountain. "quitclaim" to the plaintiff. The case stands on the mere legal effect of the quitclaim ; for even had it been allowable to ex- plain by parol, or dehors those quitclaims, that the word legacy as therein used, was intended to have a broader or more extend- ed construction than is implied by the quitclaims on their face, yet no such proof Avas offered or given. We have, therefore, only to ascertain the fair legal construction to be given to the in- struments under which the plaintiff claims ; and upon that question there can be no doubt. The plaintiff took just such interest as his grantors had in the legacy left by the will to Mary Roof. What Mary Roof took under the will was the use or interest of $800 during her natural life and whatever in- terest the plaintiff's grantors had in that " use or interest" of the $800 for the life of Mary Roof, was by these quitclaims con- veyed to the plaintiff, and nothing more. He consequently had no interest in the $800, or any part of it, after the death of Mary Roof, and the defendant cannot be made responsible for hav- ing distributed the $600 as provided for in the will. The ref- eree's report must be set aside and a new trial granted, costs to abide the event. MITCHELL. P. J. The will is in this form : " I give and be- queath unto my daughter, Mary Roof, the use or interest of $800. for and during her natural life ; and at her decease I give and bequeath unto my granddaughter, Matilda Adams, $200 of the said $800." Afterwards the testator directs his executors to divide among his children and grandchildren, in proportion to the several legacies bequeathed to them, " the said sum of $600 left at the decease of his daughter Mary, and all the residue and remainder of his estate not otherwise dia posed of." Two of the legatees, being married women, with their hus- bands quitclaimed to Rice Roof, husband of Mary Roof, and to his heirs and assigns forever. " all the right and title Avhich they then had or might thereafter have to a certain legacy be queathed to his wife Mary Roof by the testator. The plain tiff, Rice Roof, contends that the executor is bound to pay tht YORK -SEPTEMBER, 1855. 53] Roof v. Fountain. principal of the $600 to him. The executor and the assignees contend that the quitclaim merely released to Rice Roof any possible claim they might have to the income of the $800. It is very probable, from some circumstances, that this was the intention. But whatever the intention was, it is expressed in so uncertain a way that it is not remarkable that there should be a contrariety of opinion about it. There is no consideration for the release, expressed in it. and none proved. Could it then operate any further than as a confirmation of what was already bequeathed to the wife of the releasee, but which might possibly be disputed by the releasors? Where an instrument is without consideration, this seems to accord best with the prob- able intention of the releasor. In such case, too, there is no reason for extending the description of the thing released, be- yond its literal meaning, or to give it a liberal interpretation. The thing released is only the legacy bequeathed to Mary Roof. That legacy was not the $800 or the $600, but, in the words of the will, only " the use or interest of $800 for and during her natural life." So that when the legacy to her was released, it was a -release only of the use or interest in the $800. The legacy bequeathed to Mary Roof was only a life estate in the $800, and the legacy bequeathed to the assignors was the reversion in that sum. The first, the assignors pro- fessed to release, but not any thing bequeathed to them. I concur with my brother COWLES that the referee's report must be set aside, and a new trial granted ; costs to abide the event. CLERKE, J. If the assignors intended to release any thing but the proportionate parts of the legacy, to which they would be entitled aft^.r the death of Mary Roof, they were performing an idle ceremony. They had nothing else to release : they had no claim to the life interest bequeathed to her, but a future right to a portion of the money of which Mary Roof was to have the use during her life. This was the legacy (the principal,} re- ferred to in the assignment ; and which, according to the fair 532 CASES IN THE SUPREME COURT. King v. Lowry. interpretation of the language, taken in connection with the condition and circumstances of the parties, they intended tc convey. I do not concur. Report set aside, and new trial granted. [NEW YORK GENERAL TERM, September 3, 1855. Mitchell, Clerke anj Cowlss, Justices.] KING & DAVIDSON vs. LOWRY & JARVIS, impleaded with BROWN. In an action against several persons, as joint owners of a vessel, for supplies fur- nished for the vessel, proof by the plaintiffs that the supplies were delivered on board the vessel, that they rendered a bill thereof to B. one of the joint owners, that it was last seen in his possession and that it had been inspect- ed by the other joint owners, is sufficient, after proving service of the usual notice on B. to produce the bill, and his failure to do so, to authorize parol evidence to be given of its contents. Joint owners of a vessel are primarily liable, at all events for supplies furnished in the port to which she belongs, whether all the owners are in such place or not. Prima facie their liability is identical with that of persons in the rela- tion of copartners, as joint contractors. But if any one of the owners arrogates to himself the control, to the exclusion, and against the wishes, of the others, and this assumption is known to the persons furnishing the supplies, thus showing that they act in collusion with the usurping owner, it seems the others are not liable. The mere acceptance by the creditors, of a note, from one of the owners, is no proof, in itself, that the credit was given exclusively to him. Nor will it re- lease the other owners, in the absence of proof that the note was taken as payment, and with the intent to discharge the other owners. In an action against L., J. & B. as joint owners of a vessel, for supplies furnish- ed for the vessel, at the request of B., proof by L. and J. that B. at the time the debt was contracted, not only acted in hostility to them and their interests, but took exclusive possession and control of the vessel, undertaking a voyage in express contravention of the wishes of the other owners, and that the plain- tiffs knew this, is admissible. But the mere hostility of B. to the other owners, in relation to the vessel and their interests in it, is not relevant, unless it also appears that he usurped exclusive control over the vessel, and undertook a voyage with her in direct opposition to them, and that the plaintiffs were aware of that fact, and acted collusivcly with him. NEW YORK SEPTEMBER, 1855. 533 King v. Lowry. Where a defendant has no separate defense, in an action on a joint contract, a co-defendant, called as a witness, can prove nothing that will not enure to his own benefit, as well as the benefit of his co-defendant; and as to such matters he is therefore interested, and of course incompetent. A PPEAL by the defendants Lowry and Jarvis from a judg- J-JL ment entered upon the report of a referee. The referee found and reported the following facts : that at the time alleged in the complaint, each of the defendants in this cause was a part owner of the steamship Pacific, which was then being fit- ted out for a voyage to California ; that at the request of the defendant Brown, the plaiptiffs sold to the owners of said ship, and delivered on board of the same as supplies or ship stores, for the use of said ship on her said voyage, the articles men- tioned in the complaint, of the value of five hundred and twenty-six dollars and fifty-five cents, which sum, together with interest thereon to the date of the report, amounted to the sum of six hundred and twenty-eight dollars and eighty-three cents, the whole of which sum remained due and unpaid to the plain- tiffs. For which sum, together with costs, the referee reported in favor of the plaintiffs ; and judgment was entered for that amount, and the defendants appealed. J. ,Graham, for the appellants. I. The referee erred in ad- mitting parol proof of the contents of the bill. In order to entitle the plaintiffs to affect the defendants Lowry and Jarvis, by the rendition of a bill to Brown, a state of facts should have been established warranting the legal inference that the pos- session of one was the possession of all ; showing that they were joint owners of the same vessel was not enough. (Abbott on Skipping 1 . 107.) II. The evidence as to the duplicate receipts was improperly received by the referee. Brown was not shown to be the agent or attorney of Lowry and Jarvis ; no joint connection was es- tablished between them, beyond the owning of separate interests in the same vessel. Jarvis may have seen these receipts. It is not shown that Lowry saw them. The whole thing was treat- ed as the individual matter of Brown, for it was amalgamated 534 CASES IN THE SUPREME CO1 ET. King v. Lowry. with matters in which Lowry and Jarvis confessedly had no interest, and his note was given and taken in settlemei.t of all of them. III. The referee erred in refusing to dismiss the complaint, for the reasons urged on the hearing, viz. (1.) The defendants being joint owners of the steamship Pacific, were not liable as partners, but if liable at all, were liable as tenants in common, and the acts or declarations of any one could not bind all unless previously authorized, or subsequently sanctioned by all of them. (2.) There was not evidence on the part of the plaintiffs, sufficient to show that the defendants Lowry and Jarvis knew of, authorized, or sanctioned the acts, declarations, or conduct of the defendant Brown, in relation to the contracting of the bill sought to be recovered by the plaintiffs. (3.) There was not competent or sufficient evidence to show that the articles al- leged to have been furnished to the steamship in question by the plaintiffs, and for which they sought to recover, were neces- sary, or needed, or intended for the voyage she was to perform. (4.) Upon the pleadings and the testimony it is apparent that the credit was originally given by the plaintiffs to the defend- ant Brown alone, and that he alone can be considered their debtor. (5.) Under the facts presented, in any aspect of the case, the defendants Jarvis and Lowry are not liable to the plaintiffs. (6.) In law the defendants Lowry and Tarvis were not liable to the plaintiffs. IV. The referee erred in excluding the questions to the wit- ness for the defendants, Lowry and Jarvis. The object of these questions was to show that in point of fact, Brown was not the agent of, or entitled to represent Lowry and Jarvis, and that he did not act as such or do so ; on the contrary, that he acted in direct hostility to them. The plaintiffs' whole case had proceeded and been sustained upon the ground that there was a kind of partnership between all the defendants ; even if the facts jtrima facie would have warranted such a conclusion as matter of law, the defendants Lowry and Jarvis were entitled to combat it. and could do so in no othei NEW YORK SEPTEMBER, 1855. 535 King v. Lowry. vray more effectually than by showing what they offered. (3 Kent's Com. 155.) V. The referee erred in refusing to allow the defendant Lowry to be examined for the defendant Jarvis, and so vice versa. At the most there was no joint liability on their part for the whole of the plaintiffs' claim, even though they might have been liable for a part proportioned to their interests separately. Code, 394.) VI. Unless Brown was shown to be the ship's husband, or in some way the recognized agent of Lowry and Jarvis, the action could not be sustained against the latter upon what Brown said or did ; nothing like this was shown. The opposite of it was distintly proved. Lowry and Jarvis ordered things for the vessel, which were paid for by them. Unless the action can be sustained upon the idea that for its purposes, the several distinct owners of a vessel are liable for the acts of any- one of them, the judgment below is entirely without any legal foundation. Although one of several joint owners may have an implied authority from the absent part owners to order for the common concern whatever is necessary for the preservation and proper employment of the ship, the rule does not apply when the owners are all present, as in this case. (3 Kent's Com. 155.) Joint ownership is the general relation between ship-owners. Partnership is the exception, and requires to be specially shown. (3 Kent's Com. 155.) H. H. Stuart, for the respondents. I. The report of the referee, as to facts found by him, .is like a verdict by a jury. To warrant the court in setting it aside there must be such a preponderance of evidence as to satisfy the court that there was either an absolute mistake on the part of the referee, or that he acted under the influence of prejudice, passion or corruption. (Eaton v. Benton, 2 Hill, 576. Esterly v. Cole, 1 Barb. S. C. jR. 235. Quackenbush v. Ehle, 5 id. 469. Spencer v. U. SfS. R.R.Co.,5id. 337.) II. The evidence fully sustains the facts as reported found, (1.) It is charged in the complaint, and not denied in the an- 536 CASES IN THE SUPREME COURT. King v. Lowry. Bwer, that the defendants were joint owners of the vessel, and this ownership is admitted on the trial by the defendants' attor- ney, Mr. Jarvis. (2.) It is proved by Jennings, that the plain- tiffs, at Brown's request, sold to the owners of the vessel, and delivered on board the vessel, the articles mentioned in the complaint. The same is also proved by Arthur J. Brown. The only other witness sworn was Mr. Jarvis. and he does not at- tempt to contradict the evidence of Jennings and Brown. (3.) These articles are proved to have been necessary stores for the vessel on her voyage. (4.) The plaintiffs show that they have not been paid,, and produce the note taken on liquidation of the account. III. A part owner of a vessel has power to bind his co- owners, for necessaries furnished to the vessel. (Abbott on Shipping, 6th Am. ed. 130. Schermerhorn v. Loines, 1 John. 311. Muldon v. Whitlock, 1 Cmoen, 290. 3 Kent's Com. 156. Colly er on Partnership, 3d Am. ed. 1255, 1256.) (1.) The fact that the seller knows of no owner except the one ordering the things furnished to the vessel, does not affect his right to resort to the other owners when discovered. (1 Cowen. 290. cited above.} (2.) Taking the promissory note of the par- ticular owner who makes the purchase, and giving a receipt in full, does not preclude a resort to the other owners, in case the note is not paid, unless it is expressly agreed to take such note in discharge of the other owners. (7 John. 311. Coll. on Part. 1255,1256, cited above.) IV. The bill rendered by the plaintiff shows that the credit originally was not given to Brown, but to the owners of the vessel. This bill is shown to have been received by all thi defendants. Lowry or Jarvis do not show that they have as sumed, in their dealings with Brown, that he bought and paid for these stores individually, and have settled their accounts with him on that basis ; nor do they show any reason why the other owners of this vessel should not pay the plaintiff in case Brown failed to pay. V. There is no evidence that Brown has paid the claim. The reply denies the allegation in the answer. It avers that tuft SEW YORK SEPTEMBER, 1855. 537 King v. Lowry. whole claim for which Brown's note was taken remains unpaid, and offers to produce the note in court. The note is produced on the trial, and nothing appears to have been paid on it. If, in fact, any such payment had been made, the defendants would have attempted to prove it, even by calling the plaintiffs as witnesses. VI. The offer to prove Brown's declaration was properly ex- cluded. (1.) It was an offer by the defendants to prove their own declarations, made when the plaintiffs were not present. (2.) Disputes occurring between part owners of a vessel as to their individual rights, do not affect third persons not cognizant of such disputes, who furnish necessaries to the vessel. VII. The offer of the defendants to become witnesses for each other was properly excluded. They were sued as joint contractors, and were jointly interested, and jointly liable. The code gives them no right in such cases to testify for each other. (Code, sec. 397. Beal v. Finch, 1 Kernan, 128. 4 Comst. 547.) J3y the Court, CLERKE, J. This was an action against the defendants, as joint owners of a vessel, for supplies furnished for a voyage from New York to San Francisco. Judgment was re- covered by default against Brown ; the other defendants con- tending that the credit was exclusively given to him. while he had the control of the vessel ; that the supplies were not neces- sary, and were furnished not only without their concurrence, but in direct opposition to their wishes, and while Brown was acting in open hostility to Lowry & Jarvis, in relation to the management of the vessel. The plaintiffs offered in evidence parol evidence of the con- tents of a bill of the articles furnished, which had been rendered about the time of their delivery to Brown; having proved the usual preliminary notice to entitle them to the benefit of secon- dary evidence. This was objected to by the counsel of Lowry & Jarvis, on the ground " that a state of facts should have been first established warranting the legal inference that the possession of one was the possession of all ; showing that they were joint owners of the same vessel was not enough." But if the joint VOL. XX. 68 538 CASES IN THE SUPREME COURT. King v. Lowry. owners are jointly liable, and if the proof was introduced for the purpose of showing that the credit was given to the ship, it was sufficient to show the delivery of the bill to any one of the defendants, and its possession by him. It surely was not requi- site to deliver it to all ; and the mere circumstance that Brown was at variance with the other defendants, although it affected the relations between themselves, should not operate to the prejudice of the plaintiffs, unless it was shown that they acted in collusion with him, or that they gave him credit exclusively, expressly discharging the others. But this evidence was offered for the express purpose of proving the contrary to this, that the credit was given to the vessel, and not individually to Brown. It may, indeed, be the interest of the latter to withhold the bill, arid endeavor to throw the payment of a portion of this demand on Lowry & Jarvis ; but this is their misfortune, a mishap to which all persons engaging in business with others are often liable, but with which third parties have nothing to do. The plaintiffs proved that the supplies were delivered on board the Pacific, that they rendered a bill to Brown, that it was last seen in his possession, and that it had been inspected by the other defendants. Having proved that the usual notice was served on Brown to produce the bill, and Brown failing to produce it, I think it was proper to allow the plaintiffs to give parol evidence of its contents. The same remark will apply to the evidence relative to the duplicate receipts. The referee having found the facts, that the defendants were joint owners, that the supplies were necessaries furnished to the Pacific, and that the credit was not given exclusively to Brown, in discharge of the others, the only questions remaining for us to consider are, 1. Can the acts and declarations of one joint owner, in relation to supplies furnished bind the others, unless expressly author- ized or sanctioned by them? 2. Did the referee err in not allowing Lowry & Jarvis to show that during the months of February and March, 1851 , Brown acted in hostility to them, in relation to the vessel and their interests in it ? NEW YORK SEPTEMBER, 1855. 539 King v. Lowry. 3. Did lie err in excluding the testimony of the defendant Jarvis ? In relation to the first question, it is well settled that joint owners of a vessel are primarily liable, at all events for supplies furnished in the port to which she belongs, whether the owners are in such place or not ; that prima facie their liability is identical with that of persons in the relation of copartners, as joint contractors ; but if any one of the owners arrogates the control, to the exclusion and against the wishes of the others, and not merely as husband of the vessel, and this assumption is known to the persons furnishing the supplies, thus showing that they act in collusion witn the usurping owner, then I should say the others are not liable. In this case, there is no proof of any exclusive control on the part of Brown, or any such collusiveness on the part of the plaintiffs. The mere acceptance on their part of a note is no proof, in itself, that the credit was given exclusively to Brown, or that it releases the other defendants, in the absence of proof that the note was taken as payment, and with the intent to dis- charge the other owners. Schermerhorn v. Loines, (7 John. 311;) Muldon v. Whitlock, (1 Cowen, 290,) and Higgins v. Packard, (2 Hall, 547,) are conclusive on this point, and have never been questioned. 2. Did the referee err in not allowing Lowry & Jarvis to show that during the months of February and March, 1851, Brown acted in hostility to them, in relation to the vessel an 1 their interests in it? The mere hostility of Brown to the others, in relation to /.ho vessel and their interest in it, could not be relevant, unless toej' also showed that he usurped exclusive control over the vessel and undertook a voyage with her in direct opposition to them, and that the plaintiffs were aware of this, and acted collusivcly with him. Nothing of this kind was attempted. On the con- trary, the very witness by whom they offered to show the hos- tility of Brown, testified that Lowry & Jarvis ordered other ship stores, from other parties, for that voyage, showing that this voyage was with their knowledge and consent. If indeed ihcy 540 CASES IN THE SUPREME COURT. King v. Lowiy. offered to show that Brown not only acted in hostility towards them, but took exclusive possession and control of the vessel, undertaking a voyage in express contravention of the wishes of the other owners, and that the plaintiffs knew this, such testi- mony, in my opinion, would have been admissible. 3. Did the referee err in not allowing the defendant Jarvis !? be examined as a witness for the defendant Lowry ? The offer was made without qualification, except that the tes- timony of Jarvis should not be used for himself. This is not enough ; he could only be examined as to any matter in which he was not jointly interested or liable with the other defendant. He could have shown, for instance that Lowry was not a joint owner at all, and if the offer was limited to this, Jarvis ought to have been examined ; but not if the object was to negative the liability of the owners of the vessel, whoever they were, or to reiuce the amount of the claim ; or to show that the credit was given exclusively to Brown ; for in all such questions he was jointly interested with Lowry, and in relation to them a separate judgment could not be rendered. Where a defendant has no sep- arate defense in an action on a joint contract, a co-defendant called as a witness could prove nothing that would not enure to his own benefit, as well as to the benefit of his co-defendant ; and as to such matters he is, therefore, interested, and of course in- competent. (Beal v. Finch, 1 Kernan, 132, Judge Parker's opinion.} Jarvis & Lowry, if liable at all, are liable as joint contractors with Brown. On the whole I see nothing to warrant us in disturbing the finding of the referee. Judgment affirmed, with costs. ;NKW YORK GENERAL TERM, September 3, 1855. Milchell, Clei\e and Bowles, Justices.] NEW YOEZ SEPTEMBER. 1855. 54 CREIGHTON and wife vs. JOSIAH INGERSOLL. In an action for a partition, after the plaintiff's attorney had become entitled to certain fees for his services, and to over $100 for disbursements, the plaintiffs assigned their shares in the property to C. and wife, and one of the plaintiffs assigned also all costs ajnd allowances that he might have, by the suit. The assignees claimed the right to substitute a new attorney, and continue the suit, without paying the former attorney any thing. The court refused to allow the substitution until the disbursements were paid. Subsequently, the property being sold, and the plaintiff's costs brought into court, it was held that the assignment did not transfer any costs or allowances to which the attorney was entitled, but only those belonging to the assignor. [t was further held that when C. and wife took an assignment of the action as it stood, and the benefit of the progress then made in it, they took it with the burthens then incident to it, one of which was the liability to have the costs then incurred deducted from the recovery by them. The amount of costs due to the former attorney, as adjusted previous to the substitution, was therefore directed to be paid to him, before paying over the fund in court to the plaintiffs. i PPE AL from an order made at a special term, directing the IJL payment to the plaintiff. John Creighton or his attorney, of the sum of $259.01, for the costs and disbursements of the present and former plaintiffs, out of a fund in court arising from the sale of property in a partition suit. James L. Phelps,jun. for the appellant. Wm. B. Ait kin, for the respondents. By the Court, MITCHELL, P. J. This action was first com- menced by W. F. Ingersoll and wife, for the partition of certain premises. After their attorney had become entitled to certain fees for his services, amounting according to the present system, if the adjustable costs are the standard of his pay. to between $70 and $80, and had. disbursed over $100 in the action, the then plaintiffs assigned their shares of the property to the pres- ent plaintiffs, and the latter insisted they had the right to sub- stitute a new attorney and take advantage of all that had been dune, without paying the former attorney any thing. This cDurt, at general term, refused to allow the substitution until all the disbursements were paid. Since then the property has 542 CASES IN THE SUPREME COURT. Creighton v. Ingersoll. been sold, and by the judgment all the costs of the plaintiffs were to be deducted from the fund before the shares should be distributed to the owners. The shares have been distributed, and the costs brought into court, in order that the court might determine who was entitled to them. The present plaintiffs produce an assignment to themselves of the share of the former plaintiff, dated December, 1851, but not proved until January 10, 1854, and by it W. F. Ingersoll, one of the former plaintiffs, assigns, besides his share- in the lands, also all costs and allow- ances that he might have by this suit. If the assignment could affect the rights of the attorney, it should be shown that it was executed before the attorney had acquired any better rights. But it does not purport to transfer all the costs in the suit, but only the costs and allowances that Ingersoll himself might have not any which his attorney might have. It would be supposing both the assignor and as- signees were intending a fraud, to suppose that they meant to assign costs to which the attorney was entitled. It could have been the assignor's only fair intention to assign what he was fairly entitled to, beyond what belonged to his attorney ; and that might be for some allowance that might be made to him, rather than to his attorney. The attorney was entitled to some compensation for his services. Under the old system the fee bill would be the standard of his compensation, so far as it pro- vided for specific services. Under the code the' party and his attorney are not restricted to that rule of compensation, but may show any other, agreed upon between them. It may be more or less than the adjustable costs, and whichever it be, the attorney is entitled to some compensation ; and nothing in the code pro- fesses to repeal the system unrter which the lawyer had a lien on the costs for his payment. The fund is in court, and the court can and ought to hold it for the benefit of the one equitably en- titled to it. And as no one can have a more equitable title than the one by whose exertions the whole fund was created, the court should see that he is paid before any one else carries away the fund. That the attorney was not to have less than his adjust- able costs appears from his having recovered a judgment against KEW YORK SEPTEMBER, 1855. 543 Grady v. Ward. his client for five hundred dollars, for his services. But that remains unpaid. The assignees, when they bought, must have known that the attorney would have a claim for those costs. And when they took an assignment of the action as it stood, and the benefit of the progress then made in it, they took it with the burthens then incident to it, and one of these should be the liability to have the costs then incurred deducted from the recovery by them, when judgment should be obtained. Let the sum of $79, the costs as adjusted before the substi- tution, be paid to James L. Phelps, Esq. the former attorney, and the rest of the fund in court to the plaintiffs. And let the order of the special term be modified accordingly. [NEW YORK GENERAL TERM, September 3, 1855. Mitchell, Roosevelt and Morris. Justices.] GRADY vs. WARD. Where the title to property purchased at a foreclosure sale was objected to, on the ground that the order of court authorizing the execution of the mortgage was void as against devisees, it was held that the title would be rendered good by the execution of a release by the devisees. And the devisees being of age and consenting to release their interests, and the ' release having been ready tefore the hearing ; it was further held that the purchaser was not excused from taking the title. If the title of a mortgagor is good by adverse possession, that is such a title as a purchaser at a foreclosui J sale is bound to take. THIS was an appeal by Edward Cavanagh, the purchaser at a foreclosure sale, from an order made at a special term, di- recting him to complete his purchase. The mortgage fore- closed was executed, on the 19th of April, 1844, by John Power, sole surviving executor of Michael Smith deceased, in pursuance of an order made by the vice chancellor of the first circuit, on the 18th of April, 1844, upon the petition of said John Power. It was given to secure the payment of $1700 to 544 CASES IN THE SUPREME COURT. Grady v. Ward. the plaintiff. The other facts are set forth in the opinion below ; delivered at special term, by. ROOSEVELT, J. " A motion is made in this complaint to compel the bidder at a foreclosure sale to complete his purchase. He objects on the alleged ground of insufficiency of title. Michael Smith, through whom it appears the title is derived, died many years ago, but after the revised statutes of 1830, leaving a will in which he left the property in question to three trustees of whom Dr. Power was the survivor, in trust to pay the net rents to .his daughter, (Mrs. Ward,) and on her death to divide the property equally among her issue, each to receive his or her share at twenty-one, or marriage, and the rents in the meanwhile to be applied to his or her support. Mrs. Ward died after her father, leaving two infant children, named Ann and William. Ann came of age five or six years ago, and was then of course entitled to a conveyance of the one undivided half of the premises. Under the statute, however, no formal conveyance was necessary. The trust ceased as to her half. an;l with it the trustee's title, ( 68 of the statute of trusts;) and by the 47th and 49th sections, the estate of the trustee was divested, and the beneficiary became immediately seised of the *' legal estate," as well as entitled to the " beneficial interest." William's half, however, he being a minor still, remained in trust until November, 1854, when his minority terminated, and his legal estate commenced. From that period the two grand- children of Smith, whether regarded as his sole heirs at law. or his sole beneficiaries by will, were the only persons having any interest, legal or equitable, in the property. Their release, therefore, assuming Smith's title to have been good, would cure all defects, if any, in the antecedent proceedings ; and such a release, it appears, has been actually executed and tendered. 13ut independently of the release, the statute in relation to mortgages, declares, that a chancery deed on a foreclosure shall be " an entire bar against each of them (the mortgagors and mortgagees) and against all parties to the suit:" Now, the grandchildren were both parties to the suit in which the de- NEW YORK SEPTEMBER, 185o. Grady v. Ward. erec of sale w,ns made ; and it is not pretended that there were any other p?,rties in interest claiming under Smith. Whether the mortgage then executed by Power, as surviving trustee and executor, was duly authorized or not, and whether the order of the vice chancellor which allowed it to be given was valid or not, is immaterial. After the decree of foreclosure, the adult defend- ant was " barred" from raising the question ; and after a sale! in good fnith, under the decree, (especially a sale beneficial to his interests,) the infant was equally barred. But the trustee, it is said, was not a party to the foreclos- ure suit, and he therefore could not be barred by the decree. He was not a party, because, being dead, he could not be. But the court, h is urged, the trust having by law devolved upon it, should have appointed a substitute. The court in effect did so | it directed a sale and appointed a referee to con- duct it, and a guardian ad litem to take care of the infant's rights. And even if any formal irregularities had taken place, and the minority still continued, the court, acting for the infant, ;ind having in its character of guardian and trustee full power, would now remedy all such defects. But they are remedied al- ready, and remedied effectually by majority and release. Passing over all the niceties, a more fundamental objec- tion one on which the counsel for the purchaser lays the greatest stress presents itself in the alleged want of title in Smith, or Smith's successor. Smith, it appears, purchased the property then vacant ground of William Bayard more than thirty years ago, and immediately entered into possession, and erected permanent buildings upon it. Bayard, it is clear, claim ed to be and acted as owner ; and from the evidence, although not entirely complete for the whole period, it is obvious that the property had been assessed to him as owner, and that he paid the taxes on it, as owner, for fourteen years previous, show- ing an undisturbed possession for nearly half a century, during which, one set of parties did no act and made no claim, while the other, uncontradicted and undisturbed, did both. In such cases, the law is well settled that a deed, with its execution and loss, may and ought to be presumed. Even where a trust VOL. XX. 69 $46 CASES IN THE SUPREME COURT. Grady v. Ward. existed, the court in Jackson v. Brooks, (8 Wend. 426 : ) pre- sumed a conveyance after tAventy-eight years. In Jackson v. Miller, (6 Wend. 228,) a partition, which is only a partic- ular mode of conveyance, was presumed. In Jackson v. McCall, (10 John. 377,) a conveyance was presumed after the death of a party, and subsequent possession by his heirs for eighteen years. Such presumptions are indispensable to the quiet of titles and the peace of families. Absolute certainty is seldom attainable in human affairs ; in titles to land, almost never. If thirty years' undisturbed possession under an absolute deed, and that preceded by fifteen more in the maker of that deed, with no claim or suspicion of claim elsewhere, be not sufficient to constitute a merchantable title, it would be difficult to find one, short of a patent from the state. And were the price in the present case as good as the title, the purchaser, I am in- clined to think, would have viewed the matter in the same light. Besides, the purchaser has actually taken and retains possession. He has no right to say he holds as lessee, for his lease had expired, and unless in as purchaser, he would be in as trespasser a position which no man is allowed by law to as- sume. He is therefore in the precise condition which renders a release appropriate, and makes it incumbent on him to ac- cept that species of assurance. Having no doubt of the suffi- ciency of the title, I cannot do otherwise than grant the (plaintiff's motion." Jas. W. White, for the purchaser. R. B. Roosevelt, for the plaintiff. By the Court, MITCHELL, P. J. The purchaser in this -case, objects that the title is not good. It may be that the order of the vice chancellor, authorizing the execution of the mortgage which was foreclosed, was void as against the devisees under the will, and yet the title would be good if those de- visees would release. They are of age and consent to a re- lease ; and as there has been no unreasonable delay in proving the release, and it was ready before the hearing at the special NEW YORK SEPTEMBER, 1855. 547 Van Neste v. Conover. term the purchaser is not excused from taki'ng the title, (Dutch Church in Garden street v. Mott, 7 Paige, 85.) The title of the mortgagor is good by adverse possession. That is such a title as a purchaser is bound to take, even on a judicial Bale. Order of the special term affirmed, with costs. [NEW YORK GKNERAL TERM, September 3, 1855. Mitchell, Rooscvilt and Morris, Justices.] VAN NESTE vs. CONOVER. iu an action to recover the possession of a quantity of com, purchased by the defendant for cash, and delivered to him on the promise of immediate pay- ment, it appeared that the defendant assured the vendor's agent that the money to pay for the corn was arranged for, and that the vendor could have it as soon as the corn was delivered on board a ship ; and upon that condition the corn was delivered to the defendant, who, on various pretexts a voided the payment of the money, for several days, and the vessel sailed for Europe, with the corn on board ; the defendant on the same day she sailed, executing a gen- eral assignment of his property to trustees for the benefit of his creditors, he be- ing insolvent at that lime and at the time of the purchase, and having obtain- ed advances upon the bills of lading, and applied them to other purposes. It was held that both on the ground of fraud, and of a conditional sale and de- livery, the plaintiff was entitled to recover ; and a verdict in favor of the de- fendant was set aside, as being against the weight of evidence, and a new trial was granted. Such an action will lie, although the goods have been transferred to another, as security for a debt, and are on board ships and not under the manual control of the purchaser when the action is brought. The judgment being in the alternative, for the return of the property or the payment of its value, tho defendant, if he has not the property, can satisfy the other requirement of the judgment, and pay the value. A PPEAL by the defendant from an order made at a special z\. term, granting a new trial. The action was brought to re- cover of the defendant the possession of 6261 bushels and 14 pounds of corn, of the value of $3443.69, and the damages and expenses incurred by the wrongful detention thereof. The jury 548 OASES IN THE SUPREME COURT. Van Neste v. Conover. found a verdict for the defendant. The following opinion was delivered at the special term : ROOSEVELT, J. "This suit is brought to enforce the resti- tution of a large quantity of corn, six thousand bushels and upwards, purchased by the defendant for cash, but never paid for. It appears that, although giving assurances of payment on delivery, and representing that he had made arrangements for that purpose, he was at the time utterly insolvent, and if the purposes of his mind are to be judged of by his acts, had no intention of paying at all. The suggestion that the bad news received by him from Europe on the 6th of April, was the cause of his stoppage, is refuted by dates. How could letters, the contents of which were unknown till the 6th, have influenced the non-payment on the 2d, 3d, 4th and 5th ? It is not usual for effects to precede their causes. He admits, as I read his answer, that he was to pay on delivery ; but allowing, as he now contends, that by cnsh was meant payment in two or three days, even in that view, the delivery having been completed on the 2d, he had failed before the 6th. Nothing had occurred, or is pretended to have occurred, between the time of purchase and the time of payment, to create. or to warrant a change of intention. The inference, therefore, is irresistible, that in the very act of buying he deliberately purposed not to pay. It has been held, and very justly, that such a purpose, entertained at the time, and carried into effect, is a fraud on the vendor, and vitiates the contract o^sale. (1 Hill, 311. 13 Wend. 507.) The defendant's counsel contends, that, to avoid a sale on the ground of fraud, or false pretenses, there must be misre- presentation, not of a promissory character, having reference to the future, but an existing fact ; and that assuming that his client, when negotiating the purchase, did say that he had " made arrangements to pay the money as soon as the corn should be weighed on ship-board," the statement in that partic- ular, as a matter of fact, was true. But when a party" not only I vomises to do a thing which he is able to do, but accompanies NEW YOKE SEPTEMBER, 1855. 549 Van Neste v. Couover. his promise with an assurance that he intends to do it, when in truth he intends the very opposite, is not this a false represen- tation of an existing fact ? Are there no facts except those existing in the physical world ? Are mind, and the creations of mind, nothing? There is high authority for the doctrine that words are things ; and if words, why not the mental concep- tions, of which words are the mere clothing ? Intention, like other hidden works of the intellect, may sometimes be difficult of proof; yet it is none the less a fact, an existing fact ; and the law, in spite of all its difficulties, has made the judicial de- termination, not of questions of property merely, but of liberty, and even of life, to depend upon this kind of fact. Intention, not unfrequently, is the only distinction between a breach of trust and larceny ; and, in the trial of life and death, it consti- tutes the broad boundary between murder and manslaughter. Its existence or non-existence, therefore, in contemplation of law, can be proved like any other fact. In the present case, as already stated, I consider the fact of the intention not to pay, as abundantly established. The de- fendant made the purchase on the afternoon of the 29th of March, being utterly insolvent at that time. He made immediate arrangements with third parties to obtain advances on the corn. On the 1st of April, before the whole quantity had been fully delivered on board the ship, and while the lighters were still alongside, he hurried to the ship-owners and procured the bills of lading. These he forthwith transferred to the parties mak- ing the advances, who on the 2d forwarded them by the steamer to Liverpool. Having thus put himself in funds, by creating a lien on the property purchased, what did he do with those funds? On the afternoon of Tuesday, the 2d of April, the measurer's return was sent to him, but the clerk " brought back no money." " I saw the defendant (says the witness) the next day ; I think twice ; I asked him for payment ; I wanted the mon- ey : he put me off, saying it was steamer day ; I saw him again ; lie told me that his parties, whom he was to have the money from, (he had the money in his pocket.) were so much engaged that they had not time to give him the money, but I might rely 550 CASES IN THE SUPREME COUET. Van Neste v. Conover. on it early next morning ; the next morning between 9 and 10 o'clock, I sent another clerk ; he went and returned and said Conover was not in ; I started immediately myself ; again he was not in ; he did not come ; I made an arrangement to meet him on 'Change ; he did not come till late, near 3 o'clock; I imme- diately asked him for the money ; he said (with the money, be it remembered, in his, pocket) he was ashamed to say that his party had disappointed him, but that I might rely upon it be fore 10 o'clock next morning ; I went again next morning to his office ; he then told me his father-in-law was dead, but his book-keeper would bring me the money during the day ; this was on Friday, the 5th ; I saw the book-keeper on 'Change where he was to bring the money ; I did not get it ; I went to defendant's place of business again next morning ; did not see him, but the book-keeper said he would not or could not do any thing about it." This was on Saturday. On the Monday following, the ship, with the corn on board, being two days behind her time, sailed for Liverpool, and the defendant, at the same time, exe- cuted an assignment of all his estate, real and personal, of what nature or kind soever, for the benefit of his friends and rela- tives and other preferred creditors. With such a narrative of pre- tenses and prevarications, can there be a reasonable doubt that when he purchased, he had no intention to pay ? I lay no stress on the letters received by him on the 6th, as it is palpable that they had no influence on his previous conduct on the 1st, 2d, 3d. 4th and 5th. In addition to the ground of fraud, the plaintiff insists, (and I see no incompatibility in his doing so,) that the sale made by him was conditional ; that no title to the corn was to pass -un- less paid for in cash on delivery, and that this condition deem- ed essential to the contract, it being addmitted by th.e defendant himself that the purchase was not on credit was not waived by merely putting the corn on board the ship. The proof, it seems to me, makes out this branch also of the plaintiff's case. Indeed, the defendant, in his answer, which more- over is under oath, uses language sufficiently strong, to dispense with other testimony. " As the sale (he says) was for cash, NEW YORK SEPTEMBER, 1855. 55] Van Neste v. Conover. this defendant probably did say, that he would pay for the corn on its delivery, he at the same time fully expecting to be able and intending to make such payment." Was this condition waived by a delivery without immediate payment, or by any other act or declaration of the plaintiff? An article like corn, requiring to be measured or weighed out, it is obvious, could not be delivered all at once. The passing of each successive bush- el into the hold of the vessel could not constitute a delivery of the whole or even of that particular bushel. Although sold for cash, no payment was demandable until possession had been given of the entire quantity sold. If mere change of posses- sion, then, in such a case, does not make out an absolute deliv- ery, we must inquire what further was necessary. Long acquiescence has sometimes been considered sufficient. But here, instead of acquiescing, the seller, as soon as the measurer's returns were ready, demanded his pay ; or in other words, insisted on the fulfilment of the condition of cash on de- livery. He continued his demands daily, and was daily evaded, until the ship and the corn had passed beyond his reach all in less than one week. In all this I see no evidence of waiver, but the reverse. And had the corn remained in the defend- ant's hands, and not been pledged to a bona fide lender, the verdict of the jury, I doubt not, would have restored it to the plaintiff. Can, then, the wrongful hypothecation, superadded to the fraudulent purchase and broken condition, improve the wrongdoer's case? It is said that an action to recover the possession of specific personal property, against a party not having the control of it, involves an absurdity. If so, the old common law, so long con- sidered ' the perfection of reason,' was guilty of folly ; for cer- tainly replevin could formerly have been maintained in such a case, as is sufficiently demonstrated by the antique writ of capias in withernam. But independently of authority, I see no absurdity in the nature of the proceeding. Suppose a judg- ment, in this very case, to be recovered against the defendant, for the specific corn described in the complaint, where is the difficulty in executing it? The defendant has only to dis- 55-2 CASES IN THE SUPREME COURT. Van Neste v. Conover. charge the lien created by himself, and reclaim the possession from the party who made the advances or purchase a like quantity of the article of the same quality or provide himself with a sum of money equivalent in value, and the difficulty would disappear. At all events, he cannot be permitted to set up inconveniences, if any exist, created by his own wrong, as a defense to an action, otherwise clearly maintainable. With respect to the assignment of the 8th of April, it did not profess to pass any property of which the assignor Avas not the just and lawful owner ; and if it had, its only consideration being the security or payment of the antecedent debt, the as- signees would acquire no title under it, as against the equitable claims of third parties. The consignees who made the previous bona fide advances, I have considered as standing upon a differ- ent footing ; although, according to the doctrine laid down by the supreme court, in the case of Andrews v. Dieter ich, (14 Wend. 31,) even they would seem to have no rights suffi- cient to defeat the title of the original owner. But not being parties to this suit, it is unnecessary, and would perhaps be im- proper, to express a decided opinion with respect to their claims. As the verdict, in my view of the whole case as above stated, appears to be clearly against right, I have concluded that it ought to be set aside and a new trial had, leaving the question of costs to abide the event." C. O 'Conor, for the appellant. I. The form of the plaintiff's remedy was misconceived. The property having been, in good faith and in due course of business, shipped to Europe, and be- ing, at the commencement of the action, actually out of the pos- session or power of the defendant, and beyond the jurisdiction of the court, the plaintiff cannot recover. (1.) To maintain the action it is not enough that the defendant should be responsible as in tort for an unauthorized conversion of the plaintiff's prop- erty. Replevin is not, to all intents, a concurrent remedy with trespass or trover. If, at the time of the action brought, the plaintiff has not an actual subsisting right to the possession of the property, he cannot recover. (2.) If the property had not NEW YOKE oEPTEMBER, 1854. 553 Van Neste v. Conover. been removed the sheriff could not have taken it ; for the pie Igces held it by a paramount title. (Mowrey v. Walsh, 8 Coweu, 238. Root v. French, 13 Wend. 570. Andrew v. Dieterich, 14 zW. 31.) (3.) The intense severity of the reme- dial processes allowed to the plaintiff in this action, can only be justified on the assumption that the defendant still has power over the property and could surrender it to the sheriff; but. per- versely, and in contempt of the process of the court, willfully de- tains it. ( Van Neste v. Conover, 8 Barb. 509 ; S. C. 5 How. Pr. Rep. 148.) II. Neither the sale nor the delivery was conditional. (1.) Every sale is in judgment of law a sale for cash, unless accom- panied by an express stipulation for a specified term of credit. The mere absence of such express stipulation works precisely the same effect as the presence of an express promise fairly made to pay cash on demand. (2.) When a delivery is duly made in reliance upon the promise to pay on demand, and the purchaser has, in good faith, acted upon it, and disposed of the property by sale, pledge or other irrevocable appropriation, the law will not allow the seller to repent of his confidence and res- cind the sale; thereby turning what was a bona fide contract into a tort, robbing a third person of his honestly acquired title, and subjecting to strict incarceration, as a malefactor, the unfor- tunate trader who, without guile or malpractice, has been over- taken by misfortune, and deprived of the ability to fulfill his promise. (Smith v. Lynes, 1 Selden, 41.) (3.) In all the cases in which a perfected delivery upon a cash sale has been adjudged rescindable, there has been proved some trick or arti- fice working a surprise upon the vendor. Whenever the contract is honestly made, and the intention to pay is not disproved, and the delivery is voluntarily and understandingly made by the vendor in the usual course, relying merely upon the promise to pay, the property passes. (Chapman v. Lathrop, 6 Cowen, 110. Lu- pin v, Marie, 2 Paige, 169 ; S. C. 6 Wend. 77. See review of the leading cases in Smith v. Lynes, 3 Sandf. S. C. R. 209.) III. The case, fairly viewed, affords no evidence of an intent not to pay, which is the only fraud that could be pretended. VOL. XX. 70 554 CASES IX THE SUPREME COURT. Van Neste v. Conovcr. Every circumstance brought forward to excite suspicion is fairly met, and every inference of guile on the part of the defendant satisfactorily repelled. The learned justice at special term mis apprehended the facts. (Gallagcr v. Brunei, 6 Cow en, 346. 18 Wend. 609. 1 Rawle, 315. 6 Hair, fy John. 256, 426. 9 Watts, 572. Alston v. Mech. Mu. Ins. Co., 4 Hill, 342.) IV. This is an excessively hard action. The plaintiif had a fair trial on all the evidence ; the charge was so favorable to him that he took no exception. To award a new trial in such a \ r case, is contrary to the settled practice of the courts, and amounts to the violation of a fundamental maxim. In these cases quasi criminal nemo debet bis vexari pro eadem causa. (People v. Superior Court, 5 Wend. 114 ; S. C. 10 id. 289.) Wm. Curtis Noyes, for the plaintiff. I. The defendants answer admits the sale of the corn to have been for cash on de- livery ; and the mode of delivery, demand of payment, and the time thereof proven on the part of the plaintiff not having been contradicted by fhe defendant, it is a-question of law whether the delivery was of such a nature as to pass the title, and it should have been, and should be passed upon by the court as such. (Hill v. Hobert, 4 She p. 164. Van Neste v. Conover, 4 How. Pr. Rep. 149. 8 Barb. 509.) II. Where an article like grain is sold to be paid for on deliv- ery, in such quantities that it cannot all be conveyed at once to the place of delivery, the delivery is not complete, nor does the title pass until the whole quantity has been delivered, and the amount ascertained and paid for, unless after the ascertainment of the amount, credit for the price is given, or the condition as to the payment waived in some other way. (Chit, on Cont. 392, notes. Story on Sales, 313. Andrews v. Dieterich, 14 Wend. 31. Ward v. Shaw, 1 id. 404. Strong v. Taylor, 2 Hill, 326. Rapdyc v. MacJcie, 6 Cowen, 253. Lawrence v. Wil- liams, 4 Camp. 181. Whit well v. Vincent, 4 Pick. 449. Lev- en v. Smith, 1 Denio, 571. Lucy v. Bnndy, 9 N. Hamp. JR. 208. Hill v. Freeman, 2 Gushing, 257. Tyler v. Same, 2 id. 261.) NEW YORK SEPTEMBER, 1855. 555 Van Neste v. Conover. III. A delivery of personal property, to pass the title, means something more than the passing of an article from one to an- other ; it must be a delivery absolute in its nature, and with the intention to pass the title, leaving nothing to be done by the party to whom delivered to make his right to retain perfect. (Leven v. Smith, 1 Denio, 571. Whitwell v. Vincent., 4 Pick. 449, and cases cited above.) IV. The letters offered by the defendant were improperly ad- mitted in evidence. They were not evidence against us for any purpose. (Maesters v. Abrams, 1 Esp. N. P. R. 375; S. C. 10 Ves. 127. Kahl v. Jansen, 4 Taunt. 566. Lang-horn v. All/net, Id. 511. Keyner v. Pearson, Id. 663. Towle v. Ste- venson, 1 John. Cas. 110.) V. The judge should have instructed the jury that as the evi- dence of the plaintiff was undisputed as to the terms of sale, and that it was a conditional one, and as to the presentation of the bills, as soon as the amount had been ascertained, there was no question that a delivery had not taken place, the corn not having been paid for in pursuance of the condition. (F' Neste v. Conover, 4 Howard's Pr. Rep. 149. Hill v. Hoberi, 4 Shep. 164. Hill v. Freeman, 3 dishing, 257.) VI. The verdict was contrary to evidence ; for the evidence proved, (1.) That the terms of the contract were never waived ; that no credit was given ; and that the sale and delivery were only conditional. (Graham on New Trials, 361, 2, 5. Jack- son v. Parker, 9 Cowen, 73. Story on Sales, 313. 2 Kent's Com. 497, 8. De Wolf v. Babbet, 4 Mason, 294.) (2.) That the defendant, having got the corn on board the ship, fraudu- lently appropriated it by getting bills of lading, and procuring advances upon them. (3.) Upon these facts there was no con- trariety of evidence, nor any dispute whatever, and the jury either forgot or disregarded the testimony, and gave a verdict contrary to law and evidence. VII. No formal exceptions to the charge were necessary on *he trial to bring up the questions of law now presented ; the case alone is enough. (Code, 264. Archer v. Hub'jell, 4 Wend. 514.) 556 CASES IN THE SUPREME CO UUP. Van Neste v. Conover. Till. Judgment should have been ordered for the plaintiff on the pleadings and evidence; and as the verdict has been set aside, and a new trial granted, the order to that effect should be affirmed Avith costs. By the Court. MITCHELL, P. J. This appeal is from an order of the special term, granting a new trial, on the ground that the verdict was against the weight of evidence. The court does not, generally, interfere with the verdict of a jury, unless it is clearly against the weight of evidence. If any case should be an ex- ception this ought to be, as the case was presented to the special term, and to the general term, on former occasions, on affidavits exhibiting substantially the same state of facts as appeared at the trial ; and both tribunals considered a case of fraud or of conditional sale, made out, and in that conclusion the judge whose order is now appealed from concurs. The facts are such that they should be again submitted to a jury. The defendant obtained all his means which he had in business, by advances ; and when he commenced his winter or spring dealing in flour and corn, in February, 1850, he owed $4000 or $5000 which he had contracted in the preceding sum- mer, and which was still due, at the trial. Between Feb. 1850, and his failure in April of that year, his purchases amounted to ,$245,000. He bought the plaintiff's corn of Mr. Melick on the 29th of March of that year. Melick stated to him that he wanted 'to sell to some one who could give the cash as soon as the corn was out of the barges ; and expressed his doubt whether the defendant could so pay, and reminded him that he had been buying largely, during the winter and spring. The defendant replied that he had paid for those purchases ; that he did not depend on his own resources to pay for the corn : that he had arrangements with other parties for the pay, and although he was buying a large amount of corn to send abroad, vet he onlv / O Q V occasionally took a little interest for himself in the purchases; and that he had arrangements made with a party, then, for the pay for the corn ; that he could give the money for the corn just as soon as it was all on board the ship. Melick finally told him NEW YORK SEPTEMBER, 1855. Van Neste v. Conover. that if he could assure him that he had the money arranged for, so that he could pay for the corn when it was in the ship, he would send it alongside the ship. And the defendant assumed Melick that the money was so arranged for, and that he could have the money as soon as the corn was all on board the ship, and on that condition Melick agreed to deliver the corn. The corn ^-as all delivered on the 2d of April, and a bill sent to the defend- ant's store on the same day, for the money. On the 3d he was personally seen and payment demanded, and he said it was steamer day and his parties were very busy getting off their letters, and he could not get the check until after the steamer sailed ; that Melick might rely on it early next morning. The next day came, and he said he was ashamed to say that his party had disappointed him, but that Melick might rely on the money before 10 A. M. the next day. Again, on April 5, the defend- ant made an excuse on account of the death of his father-in-law, and promised that the money should be paid during the day. It was not paid on that day, and his book-keeper gave assurances that it should be paid the next day. The next day, or the busi- ness day after, he failed. In the mean time he had obtained advances on this corn, and applied them to other purposes. The conduct of the defendant subsequent to the sale, was evidence of the motive which influenced him to make the purchase, and looks so much like a design to deceive and mislead, that it should be again submitted to a jury. If his representations are to be understood, (as it is insisted the cross-examination shows they should be,) as stating only that he had made arrangements that advances should be made on his corn generally, and such ar- rangements were in fact made, and he intended when he purchased tne corn to pay for it, the imputation of fraud may be effectually repelled. If he meant, as the direct examination strongly tends to show, and his subsequent remarks confirm, that he made the purchases for other persons, who were to pay for the corn, anof the statute. (Jackson v. Colden, 4 Cowen, 266.) The deed of the mortgagee, in one case, and the statute in the other, transferred the title, and in either case, it was necessary only that the party claiming title through the foreclosure, should prove a due exe- cution of the power of sale, or in other words, prove a compli- ance with the statute which prescribed the manner of that execution. These facts might be proved by affidavits, recorded pursuant to the statute, or by common law evidence. By the revised statutes, title 15, ch. 8, part 3, (2 R. S. 545, 3,) as amended by the laws of 1844, (ch. 246, 5,) it is provided that in addition to the publishing and posting of the notice of sale, for the time therein prescribed, a copy of the notice shall be served at least fourteen days prior to the time therein speci- fied for the sale, upon the mortgagor, &c. Sections 9 and 10 of title 15 provide for the making of affidavits of the publication and posting and service of the notice, and of the circumstances of the sale. Section 11 provides, among other things, that such affidavits may be filed in the office of the clerk of the county where the sale takes place, and section 12 provides for the re- cording of such affidavits by the clerk, and that " such original affidavits, the record thereof and certified copies of such records shall be presumptive evidence of the facts therein contained." By section 14 of title 15, as originally enacted, it was provided that where the mortgaged premises should be purchased by the mortgagee or his assigns, " the affidavits of the publication and affixing notice of sale and of the circumstances of snch sale" should be evidence of the sale and foreclosure, and " with- out any conveyance being executed" in the same manner and with the like eifect as a conveyance executed by a mortgagee, ERIE JANUARY, 1855. Layman v. Whiting. upon such sale, to a third person, had theretofore been. By an amendment of this section passed in 1838, (ch. 266, 8, p. 263,) it was provided that the same effect should be given to the same affidavits, when the mortgaged premises should be purchased by the mortgagee " or by any other person or persons what- soever." It will be seen from an examination of these statutes that the mortgagee's right to acquire the title to the mortgaged premises on the sale, is given, and that the manner in which ,the title is to be transferred to him, is regulated by statute. The statute of 1808, which first gave him this right, as we have' seen, pro- vided no substitute for a conveyance, and contained no provision in relation to it ; and from the necessity of the case, it was held that the title passed, under the statute, by the fact of the sale. The provision of the 14th section of title 15 of the revised stat- utes, that the affidavits therein mentioned, when the mortgagee was the purchaser, should take the place of, and have the same effect as, a conveyance, supplied this defect in the old statute, and made an important change in the law on this subject. The effect of that section, as amended in 1838, Avas to allow a sub- stitution of those affidavits, in place of a conveyance in all cases, so that in case a third person purchases at the sale, this statute conveyance may now be adopted in the place of a conveyance from the mortgagee, which was always necessary before the amendment of 1838. That conveyance may still be made by the mortgagee in such cases, under the power contained in the mortgage, and when made, I have no doubt that common law proof of the execution of the power according to the statute, rnay be made, in the place of proof by affidavit. In such a case, the affidavits are regarded as mere evidence of certain facts. By the statute they are made prima facie, but not exclusive evidence of those facts ; and when regarded as evidence, I see no reason why common law evidence may not be resorted to in the place of the affidavits. But the same statute, under certain circum- stances, assigns to these affidavits a very different office. In the absence of a deed from the mortgagee, they take the place 564 CASES IN THE SUPREME COURT. Layman v. Whiting. of, and operate, as a conveyance ; and until the statute of frauds is repealed, I am unable to see how the title can pass without a regular conveyance from the mortgagee or this statute con- veyance which has been substituted in its place. As I under- stand the case of Arnot v. McClure, (4 Denio, 41,) it estab- lishes this precise proposition. That was an action of eject- ment. The plaintiff claimed under a sheriff's deed given on a sale of the premises on a judgment against a former owner, The defendant claimed under a prior mortgage given by the judgment debtor, which had been foreclosed under the statute and the defendant had purchased the premises on the sale. In the affidavit of sale the premises were so described as not to include a part of the land described in the mortgage. The de- fendant offered to prove by the auctioneer who officiated at the sale, that in point of fact he offered and sold the whole of the mortgaged premises, and that a clerical mistake was- made in the description, in drawing the affidavit of sale. The evi dence was rejected, and the plaintiff had a verdict under the direction of the circuit judge, for the part not described in the affidavit of sale. The defendant moved, on a bill of ex- ceptions, for a new trial, which was denied. Bronson, C. J. in delivering the opinion of the court said " the affidavits are & statute conveyance; and when they perform that office, the purchaser can no more impeach them by parol evidence, than he could a conveyance by deed." Some doubt is expressed in the opinion, as to the right of the purchaser, under any cir- cumstances, to contradict the affidavits which he has procured to be made and recorded, but the reasoning of the learned chief justice proceeds upon the hypothesis, and the case is de- cided on the ground, that the affidavits prescribed by the stat- ute, in the absence of a deed, constitute a conveyance, and are necessary to transfer the title. The learned chief justice proceeds to say " without a conveyance, or a substitute for it in the form of affidavits, the foreclosure is not complete, and the equity of redemption remains in the mortgagor. Where a deed has been executed to the purchaser, and there are no affidavits, the regularity of the proceedings may be established by any ERIE JANUARY. 1855. Lavman v. Whiting. good common law evidence. And though there may bo affi davits, it is possible that other evidence may be admissible to supply defects, and show a sale in accordance with the deed. Where there is no deed, and affidavits supply its place, they can neither be contradicted nor amended by oral evidence." I think it must appear obvious, upon reflection, that the right to contradict the facts stated in the affidavits, or to prove facts by parol, in addition to those stated, must depend upon the question whether the affidavits are, under the circumstances, to be regarded as a conveyance or as mere evidence of the facts which authorize the execution of a deed, where one has been given. As I have before observed, the statute makes the affi- davits prima facie evidence, and nothing mor This cannot be held to exclude other competent evidence, and if a title could pass under the statute by a mere sale of the premises in pursuance of the provisions of the statute, I can see no objection to proving all of the essential facts by parol, or to supplying any omissions or correcting any mistakes in the affidavits when they are used as evidence of the same facts. But the provisions of 14, substituting affidavits for a convey- ance, are in addition to the provisions of 12 making the affida- vits evidence of the facts therein stated ; and I think it must be held upon every principle of construction as well as upon the authority of adjudged cases, that in the absence of a deed, such affidavits are now necessary in order to complete the fore- closure and transfer the title to the mortgaged premises. A difficulty arises in giving a construction to 14, in conse- quence of the omission of the legislature to amend that section, when the amendment of the 3d section, requiring a copy of the notice of sale to be served on the mortgagor, was made, in 1844. It will be remembered that the 14th section as originally enacted, provided that " the affidavits of the publication and affix- ing notice of sale, and of the circumstances of such sale," should be evidence of the sale and foreclosure of the equity of redemp- tion - on the trial of an indictment, under the act, evidence by the defendant tc show that the liquor sold by him was imported by another, from foreign countries, under the revenue laws of the United States ; that the duties have been paid thereon ; that he purchased the same from the importer, in the packages in which it was imported ; and that it was drawn from those packages when sold by him, is immaterial, and should be rejected. The right to sell imported liquor, given by the laws of the United States, is subject to two important qualifications ; 1. That it remains in the hands of the importer; and 2. That it shall be sold in the condition in which its importa- tion is authorized, and that all sales by other persons, or in any other quantity or condition than that in which it is imported, are subject, like the sales of all other property, to such regulations as may be prescribed by state laws. The right is neither general as to persons, nor in its application to the property to which the laws of the United States relate. The right, on the contrary, is limited to certain persons, and qualified by the status of the properly. While it is in the hands of the importer, and in the condition in which it was imported, the laws under which he has imported it give him a riarht to sell it in that condition. This is the extent of the right. When he parts with the property, or changes its condition, his right, and all right to sell it, derived from those laws, ceases. It is no longer the right to sell which is given by the laws of the United States. The prohibition of the sale of liquor, contained in the first section of the act for the prevention of intemperance, pauperism and crime, passed April 9, 1855, as it is qualified by the second and other sections, is not repugnant to the pro- visions of the constitution, but is a valid legislative act. TERROR to the court of sessions of the county of Erie. The JLj plaintiff' in error was indicted for a violation of the "act for the prevention of intemperance, pauperism and crime," passed April 9, 1855, (Laws of 1855, p. 340,) in selling brandy (not being liquor the sale of which was authorized by the laws of the United States,) to persons not authorized to sell liquor by the act above mentioned. The facts appearing upon the trial, and the questions there raised, are stated in the opinion of the court. At the close of the testimony, the defendant's counsel NIAGARA SEPTEMBER, 1855. 55 $ Wynhamer v. The People. requested the court to charge and direct the jury to acquit the defendant, on various grounds, specified. The court refused so to charge, and the defendant excepted. The defendant's counsel asked the judge to charge that the people must prove that the liquor sold by the defendant was intoxicating. The court charged that if the defendant was proved to have sold brandy, that was intoxicating liquor within the meaning of the act. To which charge the counsel for the defendant excepted. The jury found the defendant guilty, and he brought a "writ of error. f\ J. Fithian, for the plaintiff in error. The court of general sessions erred in excluding the evidence offered by the plaintiff in error, and admitted to be true by the people, that the liquor in question was " imported." This was material evidence, be- cause the sale of " such liquor" is not prohibited by law and constitutes no offense known to the law. I. The indictment in the case and the prosecution is under and by virtue of the act of April 9th, 1855, usually termed the " prohibitory liquor law." It seeks to bring itself solely within the provisions of that statute ; refers to it by its title and con- cludes " contrary to the form of the statute," &c. II. By the true construction of the 1st section of this act, all imported liquors are excepted from its operation, and are not within any of its penalties or prohibitions, and may be sold in this state by the large or small quantity, without subjecting the vender io any punishment or penalty. (1.) The true rule of construing statutes is to read and examine them by the words they contain, and according to the natural, most obvious import of the language used ; and it is only when the language is ob- scure and ambiguous that it is allowed to resort to "compari- son," " intention," or any other matter aside from the fair import of the language used. (Smith on Statutes, 505, 545. 7 Barn. fy> Ores. 569. 10 Id. 520. 1 Kent, 1th ed. 511. Story on Const. 426. 15 John. 394. 13 Mass. Rep. 343, 4. 21 Wend. 561. Dartmouth College case, 4 Wheaton. VatteVs Law of Nations, b. 2, ch. 17, pp. 244, 245, 256. Ptiffendorf, VOL. XX. 72 570 CASES IN THE SUPREME COURT. Wynhamer v. The People. p. 13, 12.) (2.) Adopting this rule of construction, it is clear that the concluding sentence of the first section of the prohibi- tory liquor law excepts from the operation of that section " LIQ.UOR ;" not a right of sale of liquor, but the " liquor" itself in specie. (3.) The language of the exception itself assumes and declares that there are some kinds or qualities of liquor, the right to sell which " in this state" is given by law and treaties of the United States. (4.) All imported liquor has attached to it, by the laws of the United States, a right of sale "in this state." (Brown v. Maryland, 12 Wheat. 419.) And although that : ' right to sell in this state" is confined to specified persons, and while the liquor is in specified casks or packages, still as to those persons, and while thus kept, " the right to sell in this state" is absolute, perfect and unqualified. Here then is "liquor" ansAvering in every respect the requisites and conditions called for by the exception. Why should it not be within the excep- tion, and without the prohibition ? 1st. The language of the exception is broad and full. It is not confined to any " persons," " packages" or conditions of the liquor excepted. 2d. The ex- ception is not limited to quantity or kind, whether sold by the drink or by the cask. If Wynhamer's liquor ever was liquor, the " right to sell which was given, &c." then that liquor is not prohibited. (5.) This construction is in no respect in conflict with any other section or provision of the act. The 22d section of the statute contains no prohibition whatever. It sustains the exception in the first section, to the extent of sales by the " im- porter" in the " original package," and does not in any respect limit or restrain the language of the exception, as to sales by OTHER persons in other quantities. The prohibitions in the 3d and 18th sections have no reference to this question at all. (6.) The limitation which is sought by some to be put upon the exception under consideration, by a verbal criticism on the word " is" cannot obtain ; for that is in effect a concession that the construction contended for by the plaintiff in error, is true as to all foreign liquor, imported into the country since July 4th. Thus making a senseless and useless distinction as to the time when foreign liquor was imported. (7.) The construction con- NIAGARA SEPTEMBER, 1855. 57 | "VVynhamer v. The People. tended for, by the plaintiff in error, is in no respect in conflict with that rule of construction of statutes which requires they should be read and interpreted in accordance with their true in- tent and meaning. Because, 1st. The intent and meaning of a statute is to be gathered from the language of the act itself, upon a full and fair reading of all its provisions in accordance with established rules of construction, (see authorities before cited.) 2d, To depart from the act itself, and grope in the wide field of conjecture, would lead to endless confusion. It would be impossible to discover any common intent on the part of the individual legislators. 3d. In seeking the intent from the act itself, we can gather no light from the title of the act. It is meaningless, and determines nothing on the question under dis- cussion. Although indicative of a general purpose, it points to no particular means. It could be attached with equal propriety to a law suppressing gambling, horse racing, or the Mormon re- ligion. And this liquor statute might with equal' propriety, so far as the question of construction is concerned, be entitled " An act to promote the welfare of the people of the state of New York." For these reasons it is not allowable to resort to the title or preamble of a statute for interpretation. (1 Kent., 509, lect. 20.) 4th. In arriving at the intent and meaning of a stat- ute, all the words of the act must be so construed as to give them some effect. (Smith on Stat. 527. 7 Barn. $ Cress. 569.) And consequently the language of the exception in the first section, is to have its full weight and force in ascertaining the general intent of the statute. 5th. So in construing a stat- ute by the rule of looking at the old law, the mischief and the remedy, it is allowable to look outside the statute for the mis- chief, but the " remedy" must be ascertained from the body of the act itself. (Smith on Stat. 530.) 6th. So the plain lan- guage of a statute is not to be rejected in construing laws, on the ground of its leading to an absurd conclusion, unless the ab- surdity be such as could not be attributed to any m;m in his right senses. (VatteVs Law of Nations , 245.) 7th. Applying these rules of construction to this statute, it is impossible to say, as some have pretended, that it was the clear intend of this 572 CASES IS THE SUPREME COURT. AVynhamer v. The People. statute, that foreign as well as domestic liquors should be pro- hibited from sale as a beverage. It is clear from every section and provision of this statute, that it was not intended to wholly prohibit the use of intoxicating liquor as a beverage, or wholly to 'prevent the sale of it for that purpose. The act expressly authorizes every body who chooses, to import, to manufacture, to buy and to use intoxicating" liquor, in any way he pleases, provided he does not keep it or sell it contrary to the act. It also authorizes many persons to s:!l it for many purposes : and in- toxicating cider and intoxicating pure wine, made from grapes grown by the manufacturer, are authorized to be sold without limitation, to all persons, for all purposes. These are all excep- tions to the general prohibitory provisions of the 1st section. No one denies that the legislature meant these exceptions, be- cause it has said so. How then can it be said the law does not mean what it says, in the first exception as to foreign liquor? 8th. If the legislature had intended to limit the effect of this exception to sales by importers and liquor in the original pack- ages, they could and would have said so. They knew how to express their meaning in the 7th and 22d sections. 9th. The language in the 7th section, in regard to the custom house re- ceipts and marks on the casks and packages, corroborates the construction contended for by the plaintiff in error, because if it were intended that only the importer should sell in the imported package, then there would be little danger that he would fill his imported casks with an adulterated domestic article. On the contrary if it were understood that foreign liquor was not prohibited, then there was great good sense and reason in re- quiring the dealer to furnish other and further proofs than the custom house brands and certificates, that his liquor actually was imported. (8.) Another rule of construction of statutes, which is paramount to all others, and to which there is no ex- ception, and which ought to be conclusive as to the construction of the statute in question is, that "penal statutes are to be con- strued strictly." and with " regard to the principles of the com- mon law;'' (Kenfs Com. lilted, p. 514. 8>niUi on Stat. sec. 468-748. Savage, J., 7 Cowen, 253 ;) for it is not to be pre- NIAGARA SEPTEMBER, 1855. ' 573 Wynharner v. The People. sumed that the legislature intended to make any innovation upon the common law, further than the language of the statutes abso- lutely requires. All laws in "restraint of natural liberty' 1 those that forbid any thing " not in itself unlawful? or which " derogate in any other manner from the general law ;" those which inflict ''penalties or punishments for crimes or offenses ;" such as " work forfeitures" derogate from the '''rights of prop- erty" or work " disability of persons ;" or such as impose re- strictions upon " trade, commerce or the common occupations of men ;' ; or which lay " an excise or tax on thec itizen" are among those which are enumerated in the books as coming within the rule above stated, applicable to " penal statutes." (9 ) The act of April 9th, 1855, for the prevention of intemperance, &c. in- cludes in its provisions, each and every of the foregoing ele- ments and characteristics, which the law and the courts have always considered and treated as "odious." It is therefore a subject particularly requiring a stringent application of the rule of strict construction. The history of the law in this country and England abounds with instances where wise and patriotic judges, armed with this power of strict construction, have ex- tracted the venom from tyrannical and oppressive laws enacted in times of excitement, the offspring of the ignorance an dpas- sions, and not of the judgment and consciences of men ; and made such laws in some degree tolerable to the citizens. And BO too in cases where the law contained but one or two " odious" features. Having thus established, as we believe, that the plaintiff in error in this case has not been guilty of a violation of the statute by virtue of which he has been prosecuted to conviction and sentence, if the court should be against- us upon that point, then our next proposition is that the statute itself cannot be upheld by the. courts as a law. That in all its principles, pro- visions and features, it usurps and assumes to exercise powers inconsistent with the nature of republican and free government, and such as have uniformly been deemed tyrannical and char- acteristic of a despotism, and are not therefore within the scopn and purview of the general grant of "legislative power" con 574 * CASES IN THE SUPREME COURT. Wynhamer v. The People. fcrred by the constitution and the peeple upon the legislature ; wherefore the statute is null and void. And further, that the statute in question, is, as it respects most of its provisions, in conflict with those clauses of the state and national constitu- tions, which have for their object the protection of the citizen in the enjoyment of his personal " liberty" " security" " busi- ness" " rights" and " property" " privileges and franchises," and therefore it is void and must be so declared by the courts. I. It is clear that this statute, as regards the business and subject matter upon which it acts, is a statute for prohibition and restriction, and not one of regulation merely. The former excise laws were statutes of regulation merely; they left the whole traffic untouched in the main, not pretending even to reg- ulate, only in respect to sales in quantities under five gallons, and in regard to those sales imposing but feAV restrictions as to persons, and none as to the purposes for which the liquor should be sold. On the contrary, the law of 1855 acts upon the whole traffic, (save only it has made particular exception where.) and seeks the certain destruction of the whole mass of property in this state, known as intoxicating liquor, save only the comparatively trivial quantity needed for mechanical, medicinal and sacra- mental purposes, and which form but . a mere minimum. The statute provides that the liquor shall not be " sold or kept for sale or with intent to be sold, nor shall it be given away, nor shall it be kept or deposited in any place whatsoever. And all liquor kept in violation of these provisions is declared to be a nuisance and authorized to be seized and destroyed." The mere statement of its provisions shows the statute is intended to, and does, reach far beyond mere regulation of the traffic and the property. II. The next proposition is that although the courts may, and frequently do. in pronouncing upon statutes, declare some por- tions of a statute unconstitutional and void, and uphold and sus- tain other portions thereof as good and valid ; yet this is when the obnoxious provisions are either as to the persons and things upon which they act the objects and purposes they seek to accomplish the principles upon which they are based, or the NIAGARA SEPTEMBER, 1855. 575 Wynhamer v. The People. particular remedies or modes of proceeding which they author- ize so separate, distinct and independent of the other valid provisions of the statute, that they can be expunged without materially affecting the other provisions. But where, as in the statute under consideration, it is one connected system or series of measures, having a single object and purpose, acting upon a particular class of persons and business, a specified kind of property, and where the bad (if any) is connected and blended with the good in the same sections and sentences, so that the bad cannot be separated without leaving the whole system im- paired and so imperfect as to require legislation to give it any life or effect ; then it is submitted the statute must stand or fall as a whole. (Shaw, J., in Commonwealth v. Albro, 1 Gray's Mass. R. 49.) III. In this country the legislatures are not omnipotent or un- limited in their powers, even when not restrained by any consti- tutional restriction. They cannot pass despotic laws, or laws contrary to NATURAL RIGHTS and justice, even though there be no express constitutional inhibition. And if the legislature does so far depart from its legitimate purpose and authority, as to usurp such powers, the judiciary, which is a co-ordinate branch of the government, will declare its acts void. We grant (says Chief Justice Marshall,) that " the representatives of the people are the shepherds, to preserve the flock ; but they are not exclusively such. If through inadvertence or design they should endeavor to sacrifice any one or more as victims, it can- not be done, so long as the judiciary remain virtuous, intelli- gent and independent. Both departments must concur to work iniquity before the people can be made to mourn, and in bitter- ness to curse their government." (1.) The proposition that the legislatures of this country are limited in their powers, aside from, and independent of constitutional restriction, is de- ducible from the form and structure of the governments them- selves, and the received and recognized political maxims and truths upon which the governments are based* (See preamble and resolution first, of the declaration of rights of the general congress of deputies at Philadelphia. 1774; Declaration of Indo- 576 CASES IN THE SUPREME COURT. Wynhamer v. The People. pendence.) (2.) The proposition is further sustained by the fact that the colonial legislatures of this country from the first set- tlement of the country and. organization of society here, were subordinate and limited in their action. They were not even possessed of the supreme legislative power. (See history of colonial governments, Massachusetts, Hartford and Connecticut and others.) (3.) The fundamental maxim of a free government, professing to derive all its powers from the consent of the govern- ed, renders it impossible that the legislature should possess the power to pass unequal and unjust laws. For. inasmuch as the great end and object of all government and organized society is " protection to person and property." so no legislature or body of representatives can possibly be vested with authority to sub- vert the very ends and objects for which it was created. And so no legislative body can by any possibility be authorized or empowered to do that which the whole body of the people, when in a state of nature, would not be authorized to do ; viz : to de- prive any one person of his rights of liberty, property or the pursuit of happiness, provided he had not forfeited either of those rights, by criminal conduct or injury to others. (1 Lie- ber j s Political Ethics, 188, 189, 194, 202. Wooddeson's Lec- tures upon Law. Domat Civil Law. VatteVs Law of Nature and Nations. Book 4. 45, 51. Works of John Locke, vol. 5, chap. 11. Opinions of Chase, J., in Gaidar v. Bull, 3 Dallas, 386. 6 Crunch, 87. 2 Dallas, 310. University of Mary- land v. Williams, 9 Gill $* John. 365. Taylor v. Porter, 4 Hill. 146. 18 Wend. 9. 2 Peters, 654. 1 Baldwin, 223. 4 Barb. 64.) IA r . In the enactment of the " prohibitory law" in question, the legislature has for the first time, in the history of legisla- tion in this country, by a government acknowledging itself to be based upon the free principles before mentioned, assumed to usurp and exercise many of those despotic and arbitrary pow- ers which cannot exist in them, consistently with the principles which have been shown to be the basis and foundation of our system of government. (1.) This statute, so far as it affects property in existence, at the time of its taking effect, directly NIAGARA -SEPTEMBER, ISDo. 577 Wynhamer v. The People. or indirectly, or interferes with the business of manufacture and sale of intoxicating liquor, is not in any sense a laic. But is rather a legislative sentence or edict of destruction, resem- bling more an imperial ukase or despotic decree, than a legal constitutional statute, prescribing a "rule of action" for the future conduct of man. (2.) This is a law changing innocence into guilt. It punishes citizens for an innocent act, or rather for no act at all, and makes that to be crjminal, which when done was in violation of no existing law. (See 1, 4, 10, 16, 35, of the statute.] Up to 12 o'clock in the night of the 3d of July, it was perfectly lawful and innocent for the manufacturer, dealer and owner of liquor, to sell and keep for sale, and with intent to be sold, to give away, and keep to be given away and keep and deposit in any and all places whatsoever, all the liquors owned or possessed by him. Then come the provisions of this statute, which do instantaneously, by a simple legisla- tive declaration, declare all such liquors forfeited, devote them to destruction, and mulct the owner thereof in severe penal- ties and forfeitures, when he has done no single act in regard to them, but has only let them alone. (3.) It compels a man to be a witness against himself, or if he refuses to testify, it as- sumes the truth of the criminal charge against him. And in one case destroys his property without any evidence whatever, and in another case deprives him of a substantial privilege and franchise belonging to citizens of this state. (See 16 and 7.) (4.) It is a retrospective law with a retroactive effect. It de- stroys vested rights in private property, and violates the rights of lawful antecedent contract. ( Opinion of Chase, J.. in 3 Dal- las, 386.) (5.) It seizes upon large amounts of property be- longing to citizens, and takes it. If for public use it does so with- out compensation ; if not for public use, then it is worse tJ.ui taking the property of A. and giving it to B., for it destr^yt; the property without benefit or use to any body. These powers have always been esteemed beyond the reach of legislat-i'/G fn- terference. (See authorities before cited. Tracy, SQX*, c,t all, ( 1st ;) so that although five minutes before 12 o'clock ac L-'ln'^ July 3d, the liquor of the plaintiff in error was lawful Droperty to keep and vend, five minutes after 12, the liquor was " ii> <"" j ;2? " ? '' ^ could neither be sold, given away or kept. It was NIAGARA SEPTEMBER, 1855. 579 Wynhamer v. The t jople. declared to be a nuisance, and courts were ordered to confiscate it, thieves were permitted to steal it, and violence to destroy it, without wrong and without redress ; and. (4.) So far as the law affects property, owned at the time of its taking eifect as a law, it does all this without any " process cf law" whatever. This must be obvious to every mind. Whether the amount of intox- icating liquors held by dealers and manufacturers on the 3d of July last, was five million dollars worth, as some have contend- ed, or fifty million dollars worth, which is more near the truth, the owners thereof, at the manufactories, warehouses, stores, groceries, taverns, bars and shops, had that amount of vested rights of property in that liquor. The moment sections 1st, 4th and 25th of this law, spoke by authority, those vested rights of property in those liquors, thus lawfully held, were instan- taneously destroyed, and that before any "process of law' ; whatever could begin to be had ; and as to such liquors thus made contraband and confiscate all that the "process of law" provided for by the statute could possibly effect, would be to find the liquor and execute the sentence or edict of confiscation which the law had already pronounced. II. This law violates that provision of the constitution which declares private property shall not be taken for public use, with- out just compensation. (1.) This law takes the property. It claims to devote it to destruction, for the public good. If it is not for public use, then it may not be touched at all. But if taken at all it can only be on compensation paid. (2.) Destruc- tion, or any diminution of private property^ is as much a taking within this provision of the constitution as if kept for public use. (Stevens v. Middlesex Canal, 12 Mass. Rep. 466. 16 Pick. 431.) III. This act, by several of its provisions; does in effect as- sume to declare and make all intoxicating liquors (save the excep- tions) and the trade and traffic in them, r_ public nuisance. Aui indirectly it subverts and destroys the trade and business :' manufacturing malt and distilled liquors in this state, witL f,V the property, materials and labors incident thereto. So-:-i v 1st prohibits the business ; section 4th makes it a CASES IX THE SUPREME COURT. Wynhnmer v. The People. or, and adjudges a forfeiture ; section 6th provides for a pro cess of search and seizure, and arrest of the suspected party, on probable suspicion. The 7th section prohibits a defi-nsc ly a claimant without an oath cf innocence. The 14th section packs the jury. The 10th section executes the legislative sentence of destruction. The 17th section reverses the rules of evi- dence, and presumes guilt instead of innocence. The 25th sec- tion declares the property to be a public nuisance. Thus is a trade and a business, and an article which by the common law of the country at the time of the adoption of our first constitu- tion and immemorially before, was not a nuisance, but a legal and legitimate business and property, declared and made a nuisance, and destroyed by legislative edict, and this too when no change has taken place in the trade or the article, in any way altering its charade?', but only a change of opinion in the legislators. Thus are the life long habits and traditions of a whole people sought to be changed by force and violence in one night by a legislative pronunciamento. and which it is insisted is in conflict with those provisions of the state constitutions, which declare the " liberty" of the citizen shall not be taken, away without "due process of law," and that no member of this state shall be disfranchised or deprived of any right or privilege, secured to any citizen, unless by the law of the land, and judg- ment of his peers. (1.) The term "law of the land" and "due process of law," do not mean the statute which works the for- feiture ; for otherwise it would make the constitution read no man shall be deprived of his property or liberty or franchise, without due process of lav;, unless the legislature pass a law to do it. This would be no limitation at all upon the legislative pow- er. (4 Hilly 146. 3 Story on the Constitution, 661. 2 Kent's Com. 13. 2 Coke's Institutes, 50, 51.) (2.) Although the prohibitory law provides for a kind of process and trial, yet V2.t is only to determine whether or not any accused person j&s or net kept or sold, and to find and destroy the article ":M'f*h the law nad by its provisions made contraband. But so . y v the divesting any right, which a citizen might before have '- %'Iow the business cf selling; or any right of property which NIAGARA SEPTEMBER, 1855. Kg} Wynhamer v. The People. he before had in liquor, which he does keep for sale or had on hand in his store for sale, on the morning of July 4th, it is clear the statute itself, by its own power, and without any process trial or proceeding Avhatever, divests and destroys these rights, (if any.) (3.) The constitutional provisions as to " liberty." "property" and "franchises" of a citizen, were taken from " magna charta," and the " bill," and "petition of rights" in England, and these, with the other kindred provisions in our constitution, constitute what in this country are the " bills" or "declarations of rights" of the citizen. They are the protec tions equally of social, political and personal liberty. They are to be largely and liberally expounded. In the language of the supreme court of the United States, (3 Dallas, 310,) " Not a particle of them should be shaken, not a pebble removed ; in novation is dangerous, one encroachment leads to another," .nnsual punishments," and so it establishes new and inferior courts with new jurisdictions in places other than cities, and v, r hich do not proceed according to the common law. (Const, art. 0, 5 14.) This act also clothes officers and inferior and irre- sponsible magistrates with new and unusual powers. It vests the ir-iT'est grade of ministerial officers with arbitrary and dangerous powers, which can ,be exercised without let or hindrance, upon the mere discretion of the officers. By sections 5, 6, 13, 10, the inferior magistrates, named in the 5th section, are authorized to .impose lines without limit, and forfeit and destroy property to nny amount from $10 to a million, and to inflict long terms of imprisonment. All of which is contrary to the spirit and implied inhibitions contained in the 6th article of the constitution. And so ssction 12 of this statute forces upon constables and police officers the exercise of judicial and discretionary powers of arrest and interference with the persons and property of citizens, with- out warrant, complaint or process, to an extent unknown and up.heard of ever before in a free country, and truly alarming in vi-jw of the tendency of all power to abuse. By this 12th sec- tion the oiScer is compelled to arrest all and every person whom he nay determine to be engaged in violating the act, and to seize all property which he may determine is kept contrary to the act, and he may arrest and imprison every person whom he f .ap/y determine to be intoxicated in any place whatsoever, whether gir.;y c* any offense or not. And by the 14th section the offi- cer iC irnpliedly protected against the consequences of any malice, ba^ ? o ,itbj or want of probable cause, which may have prompted lii'j "vn.duct. And by section 20, if the officer err on the side of rar-oy, he himself is subject to entire and irretrievable ruin. Jl is insisted as another general proposition that this statute, it. irvmy of its provisions, is in conflict with those provisions in 'h a '^P. "frights in the United States constitution, providing V: T^Z Ji'-u^ly of private rights / and which provisions are alsc NIAGARA SEPTEMBER, 1855. 5S5 Wynhamer v. The People. incorporated into the constitution of this state. (See art. 5 of Amendments to the Constitution.} But it also violates thof^ provisions of the United States constitution, which are intended to protect the people from the annoyance of spies, and to secure their houses, persons and premises from unreasonable searches and seizures. And also those provisions of section 10 of the 1st article, which have for their object, to restrain state legislation from any undue interference with the powers conferred upon the national government, and from passing laws inconsistent with the nature of republican and free institutions. I. The law is to all intents and purposes a ' bill of attain- der" which, as used in our constitution, includes " bills of pains," and ''penalties." In England a bill of attainder, as technically understood, was such only as deprived of life. In our constitu- tion it has a more extended signification, and all laws which as- sume of themselves to exercise judicial magistracy, either in the deprivation of life or confiscation of property, are bills of attain- der. (Fletcher v. Peck, 6 Cranch, 87, 138. 2 Cond. U. 8 Rep. 322.) And so a bill of attainder, as thus defined, is not necessarily confined to individual victims. It may designate its objects by classes or by a general description, fitting a multitude of persons. In either mode it is equally liable to moral and con- stitutional censure. (1 Dana. 510.) The statute under con- sideration answers to the definition of a " bill of attainder" as above given. It confiscates property of individuals and classes without trial, judgment or hearing. The proceedings required; and provided for by the statute are (as has been before shown) in no sense a judicial proceeding to determine whether intoxi- cating liquors kept for sale, or kept at all, shall or not be for- feited. The judicial proceedings provided for by the act are themselves but the result of a forfeiture theretofore incurred, and a divestiture of title Avhich had THERETOFORE TAKEN place. (1 Dana, 519. Paleys Moral Philosophy.) II. This statute is an " ex post facto law," in a sense more odious if possible than any definition which ha^ ever been given of that term. (1.) It is a statute making acts criminal, which in their nature, are not criminal, and which for all time before VOL. XX, 74 CASES Iff THE SUPREME COURT. Wynhamer v. The People. had been sanctioned by the common law and the statute. (2.) It not only makes acts criminal, which were not criminal, when done, but it declares a man a criminal for doing no act at all, ( 1, 4,) or an omission to do any act expressly required by the sr/atute. A man is by this statute made a criminal for letting his own property alone. (3.) And so the statute requires less evidence to convict of doing an act, than was before required in like cases. III. This statute " impairs the obligation of contracts." (See Story on the Const. 1374 to 1399 inclusive ; 1 Kenfs Com. 1th ed. p. 455 to 466.) (1.) It has been held, in regard to this provision of the constitution, that the inhibition extends as well to contracts executed as executory contracts, and to preserve and secure riff/its acquired, as well as obligations assumed. (Smith on Slat. 250.) (2.) Also it is said that although this provision of the constitution does not affect the power of the legislature to deal with the remedies for the enforcement of ob- ligations or protection of the rights secured by the contract, yet if while pretending to deal with the remedy, it so legislates as in any degree to affect the rig-fit or impair the obligation, such legislation is void. (Smith on Slat. 255. Green v. Riddle, 8 Wheat. 1. Branson v. Kinzic. 1 Howard, 211.) (3.) And so it has been held that the laws in force where the contract was made, at the time it was made, enter into and become a part of the contract, as much as if they were expressly set forth in its- stipulations. (Smith on Stat. 258. McCracken v. Hay ward, 2 How. 608. (4.) It has also been decided that this provision of the constitution prohibits the state legislatures passing any law, divesting a vested right, whether acquired under a contract between party and party or by a charter from government ; and that the restriction as to vested rights extends to rights of every nature, arising or resulting from contracts, either verbal or written, exjiress or implied. And so, whether the rights arise from the stipulation of the parties, or accrue by tho operation of the law, which is a part of the contract. And that this re striction must be considered as rendering- void any statute re trospective in its operation so far as it affects vested rights NIAGARA SEPTEMBER, 1855. 537 Wynhatner v. The People. (Smith on Statutes, 261, 264. Dartmouth College case, 4 Wheat. 518. Nelson v. Allen, 1 Yerger, 366. New Jersey v. TFz7.vow, 7 Cranch, 164. Osborn \. Humphrey, 1 Day, 885. Atwater v. Woodbridge, 6 Conn. 223. Lewis v. Brack enridge, 1 Blackf. 112.) It follows therefore : 1st. As to all intoxicating liquor in the hands of manufacturers and dealers at the time of the prohibitory act going into effect, and which had been manufactured or purchased by them for sale again they had a vested right to re-sell the article, which right arose both by contract and by operation of law. 1. By express contract : for when a dealer in any kind of property purchases of another an article or quantity of the property in which he traffics, he contracts and bargains for all the rights and incidents which at- tach to the property while owned by the vender. And the vender is considered in law to have expressly granted and con- veyed to his vendee those rights and incidents. The most im- portant of which, and indeed the only one of any use and value whatever to a vender thus circumstanced, is the right of re-sale. 2. Such rights of re-sale attached to the property as an insepa- rable incident when purchased by the dealer by operation of law. The law as it then was gave to the dealer the absolute right to use, keep and sell. That law became a part of the contract, and vested the right thus acquired in the dealer. And that right of sale so vested, the " higher law" of the constitution secures and protects, inviolable from state interference. It is a right acquired by contract, the obligation of which is to respect and sustain the right, and the state law that touches either is void. In conclusion, as to this statute, it is submitted that the act for the prevention of intemperance, pauperism and crime, while it proposes to attain and accomplish a good and a worthy object, does, nevertheless, manifest a determined purpose in the pursuit of that object, if necessary, to violate the fundamental guaran- tees of civil liberty, subvert the constitution and usurp despotic power. When it is met by constitutional barriers, it seeks to avoid them by a series of transparent evasions. Pretending to respect property, it destroys it Indirectly, by depriving it of all its incidents and uses ; pretending to respect liberty and per- 588 CASES IN THE SUPREME COURT. Wynhamer v. The People. sonal security, it proscribes a large class of citizens, and places their rights of person and property, entirely at the mercy of any man in the community, who from good or bad motives may choose to destroy them. It claims the right, and usurps the power to do all manner of evil in order " that good may come." The en- tire scheme of measures proposed by the law are vicious, and should not be upheld by the courts. A. Sawin, (district attorney,) for the defendants in error. The only question presented by the bill of exceptions, (apart from matters of form,) involving the validity or construction of the prohibitory liquor law, is that presented by the rejection of the proof offered by the defendant, and rejected by the court below, u that the liquor sold by the defendant was liquor im- ported into this state from foreign countries, under and in pur- suance of the revenue laws of the United States; that the defendant purchased such liquor from the importer in the im- ported packages, and that the same was drawn from such pack- ages, and sold to the persons and at the times proved by the witnesses for the people/*' All the counts in the indictment are for illegal sales in quantities less than one pint, and not for giving away or keeping with intent to sell. The proof showed the liquor was sold at the defendant's bar in quantities less than one pint, and was drank on his premises. The 1st sec- tion of the act for the " prevention of intemperance, pauperism and crime." enacts substantially that intoxicating liquor shall not be sold, except as thereinafter provided for medical pur- poses. The 22d section declares all distilled liquors (and of course brandy) to be intoxicating. The finst section also ex- cepts "liquor the right to sell which, in this state, is given by any law or treaty of the United States" There is no pre- tense that the brandy in question was sold by the defendant under the provisions of the second section. First. There is no law or treaty of the United States giving the right to the importer of liquors, or any other person, to sell the same in the original package or otherwise, in this state, I. It is admitted there is no treaty or law of congress, in ex,' NIAGARA SEPTEMBER, 1855. $9 Wynhamer v. The People. press words, authorizing the importer of brandy or distilled spirits or wine, upon payment of duties under the revenue laws of the United States, to sell the same. The acts of congress bearing on the question are as follows : The first act of regula- tion of imports, passed March 2, 1799. (1 U. S. Slat, at Large, p. 701, 103,) prohibits the importation of distilled spirits in, less quantities than ninety gallons. By act of 2d March, 1829, and act of 27th February. 1830, which are now in force, brandy may be imported in casks of a capacity of not less than fifteen gallons. The last tariff act, passed 30th July, 1846 ; (9 Stat. at Large, schedule A, p. 44,) imposes a duty upon brandy of one hundred per centum, ad valorem. II. The constitution of the United States and laws of con- gress authorizing the importation from foreign countries of dis- tilled spirits and imposing duties thereon, do not, by implication, give the right of sale of the same in this state to the importer or any body else. (1.) There has been no adjudication of the supreme court of the United States to that effect. The case of Brmcn v. The State of Maryland, (12 Wheat. 419.) decided in 1827, arose under a state law prohibiting importers from selling "without taking out a license for which, they shall pay fifty dollars," and Chief Justice Marshall held the act repugnant to that clause in the constitution, which declares " that no state shall lay any imposts, or duties on imports or exports." The question was one of taxation. Afterwards, in 1847, the supreme court of the United States held that the laws of New Hamp- shire. Massachusetts and Rhode Island, regulating the sale of intoxicating liquors, were not inconsistent with the federal con- stitution or acts of congress under it ; and in doing so, all the judges expressly held one important portion of the opinion of Chief Justice Marshall in the above case to be obiter, and three of them, Justices Daniel, Woodbury and Grier, substantially adjudged that so much of Chief Justice Marshall's opinion in the case of Brown v. Maryland, as held that the state govern- ments could not prohibit sales by the importer in the original packages, to be "not the point settled or the substantial rea- son for it." (See 5 Howard, 505 to 633.) "It is clear," says 590 CASES IN THE SUPREME COUiiT. Wynhamer v. The People. Chief Justice Taney, (Id. 574,) " that the power of congress over this subject does not extend farther than the regulation of commerce with foreign nations and among the several states ; and beyond those limits the states have never surrendered their power over trade and commerce, and may still exercise it, free from any controlling power on the part of the general govern- ment. Every state therefore may regulate its own internal traffic, according- to its own judgment, and upon its oivn views of the interest and well being of its citizens." III. But even if congress possess the right under their power to regulate commerce, to authorize the importer of foreign liquors to sell the same in this state, that power has not been, exercised, and therefore, according to the unanimous opinion of the justices of the supreme court of the United States, in the above cited New Hampshire case, the legislation in this state is valid. It follows, therefore, that no construction can be given to the ex- cepting clause under consideration, that would render the proof offered material ; in other words, there is no liquor " the right to sell which in this state is given," either in express terms or by implication, by any law or treaty of the United States. The court will probably see from the examination of the other points presented below, that the decision of the first proposition is of no practical consequence in this case, yet it is peculiarly fit that the bar and the courts should upon all proper occasions, when satisfied the precise question presented by the first point is yet open for argument and discussion in the supreme court of the United States, maintain the right of every state " to regulate its own internal traffic according to its own judgment, arid upon its own views, of the interest and well being of its citizens." Second. Assuming, however, (as the legislature undoubtedly did,) that the federal judiciary have given such a construction to the law of congress as authorizes the importer of brandy t<> sell it within this state in the original cask or package, (not less than fifteen gallons,) then the brandy charged in the indictment and proven to have been sold by the defendant, at his bar, in quantities less than one pint, and drank on his premises, is not NIAGARA- -SEPTEMBER, 1855. 59 1 Wynhamer v. The People. the " liquor" named in the last clause of said first section, with- in the intent and meaning of the exception. I. Construing the clause by itself, adopting the most stringent rule of subtle and strict construction, ( ;t the letter that killeth instead of the spirit that maketh alive,") it is submitted (1.) The words " is given" the present tense, clearly limit the operation of the exception, as the technical words in an indict- ment ' ; then and there" do to the specific liquor charged in the indictment. (2.) The words "is given" mean, "is granted in express terms.' 1 (3.) The words "liquor the right to sell which is given by," are equivalent to the following words, " the sales of liquor authorized by." (4.) There is no pretense under any construction by the supreme court of the United States, or any judge thereof, of any act of congress, that the right to sell liquor is attached to or flows with the liquor. " The right to sell which," is a right not "given" to the liquor but to the person. II. But if there is any doubt as to the meaning of the ex- cepting clause, such a construction should be given to it as will put in force the intent of the lawmakers, which can be done only by limiting it to sales of liquor in the original packages by the importer. This can be done in the application of well set- tled rules for the construction of statutes, without adding- to or taking from the whole act a single word, and at the same time give weight and meaning to every word therein. But it has been argued that penal statutes should be construed so strictly, as that the intent of the legislature should not be diligently sought out. This pestilent dogma has no foundation in princi- ple and is not sustained by authority. "However true it may in the general be, that penal laws are to be construed strictly, yet, even in the construction of them the intention of the legis- lators ought to be regarded." (Bacon 's Abr. tit. Statute ; cases, Rbx v. Hod-net, 1 Durnf. $* East, 96 ; Heydorfs case, 3 Rep. 1 ; 8 Mod. 65 ; 2 Atkins, 205.) The statute declared it to be treason for a servant to kill his master. The court held, that applied to his master's wife. Croke, J., saying, "Notwithstand- ing that a statute which increases a punishment beyond what it was at the common law, ought not to be extended by an equi- 592 CASES IN THE SUPREME COURT. Wynhamer v. The People. table construction, yet the words of such statute ought to be construed according to the intention of the makers of the statute. So in the soldier's case, (Cro. Car. 71.) The statute making the departure of a soldier from his captain without license, fel- ony, it was held by nine judges against three that a departure of the soldier from his conductor, was within the meanin" 1 of 7 O the act. That a penal statute when made for the public service and good of the king and realm, ought to be construed according to the intention of the makers of the statute. So in Ponlter's case, (11 Rep. 34, 35,) it is said, "There are many cases in our books where penal statutes have been construed by inlendtuent for the suppression of a mischief," 1 CASES IX THE SUPREME COURT. Wynhamer v. The People. and thus not only "interrupted," but destroyed the right to that extent. It circumscribed the market, and decreased the de- mand for the article to a certain extent, and thus " impaired its value" to the same extent. Similar illustrations might be drawn from our quarantine and health laws, and the police and other regulations of municipal corporations. But I propose to pursue the history of legislation on this subject, and to examine briefly some of the adjudications upon the laws of other states. By the law of Massachusetts, under which one of the license cases irose, all persons were prohibited from selling liquors in quan- tities less than twenty-eight gallons, without a license, and the Act contained a provision that the commissioners of excise should in no case be compelled to grant a license. This law. it B'ill be seen, exercised the power of regulation to an extent ap- proaching very nearly to practical prohibition. The law of Rhode Island, under which another of those cases arose, con- tained a provision similar to that of the Massachusetts law, fixing the minimum quantity that might be sold without a license, at ten gallons. The law of New Hampshire went still further, and prohibited all sales without a license. There was no provision in the law under which licenses, to any extent, could be procured as a matter of right. The power of granting and refusing licenses was to be exercised in the discretion of the officers designated for that purpose. It will be seen that absolute prohibition might result from the operation of this law. That this was the design of the law, and the effect of its operation in a great majority of cases, no one can doubt. That all of these laws contained unusually stringent restrictions upon the sale of liquor, that they seriously interrupted the en- joyment and impaired the value of the right of sale, no one will deny ; but whether the right, in the language of Justice Strong, was even "essentially preserved" by the New Hamp- shire law, might well be doubted. As was natural, these laws encountered sturdy opposition from the interests so seriously affected by them. They were subjected to the most searching judicial scrutiny, and their validity was affirmed by the su- preme courts of the respective states. The constitution of NIAGARA SEPTEMBER, 1855. Q]\ Wynhamer v. The People. each of those states contained the same prohibition against de- priving citizens of their property, " Avithout due process of law,'* 1 as is relied on in this case ; and yet it is a remarkable fact, that in all the discussions which these cases underwent in the state courts, this objection was not suggested. The question, as we have seen, which was argued in the supreme court of the United States was, whether those laws were in conflict with those of congress, regulating commerce. The question now under consideration could not arise in that court, and for that reason the decided opinions of the chief justice and other mem- bers of the court, in favor of the right of the states to prohibit entirely the domestic traffic in liquor, cannot be regarded as authority, in the strict sense of the term, on this point. But the construction by that court of the state laws, which in their terms comprehended all liquors, limiting their application to the domestic trade for the purpose of maintaining the validity of those laws, shows the high sense entertained by that court of the importance of preserving in its utmost latitude the power of the states to control by restrictions or prohibitions their do- mestic trade. A legislative recognition of the same principle, equally significant, is found in the excise laws passed by con- gress in 1794 and 1813, each of which contained a proviso that no license to sell liquor should be granted under the law to any person who was prohihited from selling by the laws of any state. Another instance of the exercise of this power of regulation to the extent of absolute prohibition is furnished in the embar- go laws passed by congress in 1807, which prohibited all im- portation and exportation to or from any foreign country. The laws were by their terms unlimited as to the time of their duration and were maintained in full force for nearly two years It wao objected to them that the constitutional power to regu- late commerce under which the laws were passed did not author- ize congress to destroy commerce, as those acts confessedly did. The question was raised in the district court of the United States, for the district of Massachusetts, in the case of The United States v. Tb. Brigantine William, (2 HalVs Laic 612 CASES IN THE SUPREME COURT. Wynhamer v. The People. Joun.al, 253.) in which a libel was filed to enforce a forfeiture of the vessel for being engaged in the exportation of merchan- dise in violation of those laws. It was argued in behalf of the claimant that the acts of congress were utterly void ; that there was not only an entire want of power in the con- stitution to prohibit commerce, but that the act was in direct violation of the grant of power to regulate, which necessa- rily implied the duty of preserving the thing to be regulated. The court held the law to be constitutional.- Davis, district judge, in an elaborate opinion, examined the question in all its bearings. In discussing the questions as to the nature and extent of legislative power, and the restrictions upon it which could be enforced by the judiciary, the learned judge said, "affirmative provisions and express restrictions contain- ed in the constitution are sufficiently definite to render decisions, probably in all cases, satisfactory, and the interference of the judiciary with the legislature, to use the language of the consti- tution, would be reduced to ' cases 1 easily to be understood, and in which the superior commanding will of the people, who es- tablished the instrument, would be clearly and peremptorily ex- pressed. To extend the censorial power further, and especially to extend it to the degree contended for in the objections under consideration, would be found extremely difficult, if not imprac- ticable in execution. To determine where the legitimate exer- cise of discretion ends, and usurpation begins, would be a task most delicate and arduous. Before a court can determine wheth- er a given act of congress, bearing relation to a power with which it is vested, be a legitimate exercise of that power or' transcend it, the degree of legislative discretion admissible in the case must first be determined. Legal discretion is limited. * * * Polical discretion has a far wider range. It embraces, combines, and considers all circumstances, events and projects, foreign or domestic, that can affect the national interests. Le- gal discretion has not the means of ascertaining the grounds upon which political discretion may have proceeded. It seems admitted that necessity might justify the acts in question. But how shall legal discussion determine that political discretion. NIAGARA SEPTEMBER, 1855. Wynhamer v. The People. surveying the vast concerns committed to its trust, and the movements of conflicting nations, has not perceived such neces- sity? Speaking of the objects for which this power may be exercised, the learned judge said, " The mode of its manage- ment is a consideration of great delicacy and importance ; but the national right or power, under the constitution, to adapt regulations of commerce to other purposes than the mere ad- vancement of commerce, appears to me unquestionable." The late Justice Story, in commenting upon this provision of the constitution, and in the same connection on the embargo laws, ' O and the question involved in the case just cited, says : " No one can reasonably doubt that the laying of an embargo, suspending commerce for a limited period, is within the scope of the consti- tution. But the question of difficulty was, whether congress, under the power to regulate commerce with foreign nations, could constitutionally suspend and interdict it wholly for an un- limited period, that is by a permanent act, having no limitation as to duration, either of the act or of the embargo. * * * An ap- peal was made to the judiciary upon the question, and it having been settled to be constitutional the decision was acquiesced in, though the measure bore with almost unexampled severity upon the -eastern states and its ruinous effects can still be traced along their extensive seaboard. * * * Non-intercourse and em- bargo laws are within the range of legislative discretion ; and if congress have the power, for purposes of safety, of prepara- tion or counteraction, to suspend commercial intercourse with foreign nations, they are not limited as to duration^ any more than as to the manner and extent of the measure." The effect of these laws upon private property was far more extensive and destructive than any that can possibly result from the law in question. The right to export property, de- signed and valuable only for that purpose, was one of those "essential and definitive characteristics which constituted its main value." The prohibition was " destructive of its princi- pal value? and property of the value of many millions was ren- dered worthless by their operation. The constitution of the United States contains the same restrictions upon the legislative 6 1 4 CASES IN THE SUPREME COURT. Wynhamer v. The People. power of congress that is imposed by the constitution of our state upon its legislature, that no man shall be deprived of his property without due process of law. But in all the opposition which the embargo laws encountered, the objection that they violated this provision of the constitution occurred to none of its astute and able opponents. The case of the William is a direct authority for the propo- sition that the national government, under the constitutional grant of power to regulate commerce, may restrict it, in its dis- cretion ; that such restriction may be carried to the extent of absolute prohibition, and that this power is not restricted to measures^ exclusively beneficial to commerce, but that it may be exercised as an instrument for other purposes of general policy and interest. These propositions may, in my opinion, be rested with equal safety upon the authority of this case, and the con- clusive reasoning by which it is sustained. The powers of congress are enumerated in the constitution, and are expressly restricted to those so enumerated. The power in question is limited to commerce with foreign nations, and among the states. That the same power over internal commerce is reserved in all its amplitude by the several states, is not questioned, and that a state, by virtue of its powers of original sovereignty, which are merely limited by specific restrictions and not enumerated in its constitution, may, in the absence of such restrictions, ex- ercise the same control over its domestic commerce, as that ex- ercised by congress over foreign commerce, and for the same purpose, cannot be doubted. In view of this long continued and uniform course of legisla- tion, based upon the concurring authority of the general govern- ment and the several states, sanctioned by general acquiescence, and vindicated by judicial authority, whenever questioned, ac- companied as such legislation has uniformly been, by cotempo- raneous constitutional restrictions, identical with the restriction now invoked against this law, the question as to a conflict be- tween the law, in the respect now under consideration, and the constitution, must be regarded as settled. The prohibition in this act, as I have remarked, does not affect NIAGARA SEPTEMBER, 1855. 515 Wynhamer v. The People. the possession of the property. It does not interfere with the right of sale, except within the state, and notwithstanding this prohibition, those interested in this property may manufacture and export it for sale elsewhere. I say notwithstanding this prohibition. I am aware that there are provisions in the act which were perhaps designed, and which may possibly be con- strued to prevent this. The provision that it shall not be kept in any place, except a dwelling house or church, has been cited with others supposed to evince a destructive purpose towards this property, which are alleged to be plainly repugnant to the constitutional rights of the citizen. But the defendant has not been prosecuted, nor has his property been proceeded against under these provisions. When he is indicted for keeping liquor, in violation of this act, or proceedings are instituted to enforce a forfeiture of his liquor, for any such cause, different questions will be presented. With these questions we have nothing to do in this case. When they are legally presented for our consider- ation, the parties interested in them will be entitled to the de- liberate and unbiased judgment of the court upon them. But to secure this, it is not only proper, but indispensable, that the parties interested, instead of the court, should be first heard, The legislature have said that the defendant shall not sell intox- O icating liquor in this state. He has chosen to disregard that injunction, and has been convicted of an offense against the law, He disputes the right of the legislature to pass the law, and this question and the question of construction heretofore considered, we are called upon to decide nothing more. With the ques- tions as to the wisdom, policy and propriety of the law, which were discussed with so much zeal by the defendant's counsel at the bar, we have nothing to do. Those are questions addressed exclusively to the discretion of the legislature. This is a mere question of power. If the power which the legislature has as- sumed to exercise, exists, and the law is plain, the duty of the judge and the citizen is the same that of simple obedience. To both alike it speaks the language of command, and not of persuasion. I know of no principle recognized by the consti- tution, or resulting from any sound theory of government, which ft]Q CASES 13 THE SUPREME COURT. Rich v. Milk. requires or authorizes the judiciary to interfere between the legislature and the people to shield the latter from the conse- quences of an improvident or capricious use, or even a positive abuse, of legislative poAver. The remedy for such abuses, if they exist, is in other hands. It rests with the people, whc in their constitution, have established the only restrictions upon legislative power that can be judicially recognized or practically enforced, except by those in whom the ultimate powers of sove- reignty reside. The judgment of the court of sessions should be affirmed. [NIAGARA GENERAL TERM, September 3, 1855. Bowen, Mullett and Greene, Justices.] RICH vs. MILK. A chattel mortgage was executed by P. in the usual form, to K., transferring to the mortgagee the legal title to the property. By the first clause of the condi- tion this title was made defeasible upon the payment of the mortgage debt according to the terms of the condition. By another clause it was provided that if default should be made in such payment, or if K. should at any time deem himself in danger of losing his debt by delaying the collection thereof until it became due, he might take possession of the property at any time, Oc- fore or after the time limited for the payment of such debt, and sell the same, or so much thereof as should be necessary to satisfy the debt, &c. Held that this latter clause did not, by implication, give to the mortgagor the right to retain the possession of the property until the hapi>ening of the contingency ; but that the power given to the mortgagee, by that stipulation, was intended as a cumulative remedy, merely, and did not qualify his right, as the legal owner, to the possession of the property at all times, before the performance of the condition which was to defeat his title. It was accordingly held, further, that an assignee of the mortgage had a right to take possession of the property and to retain it, as against the mortgagor, and all claiming under him, before the mortgage debt became due and payable fTVHIS action was commenced before a justice of the peace of J. the county of Cattaraugus. The plaintiff complained in tro ver for five cows, converted by the defendant. The defendant NIAGARA- SEPTEMBER, 1855. 517 Rich r. Milk. by his answer, denied the complaint, and justified the taking, under a chattel mortgage, of which he was the assignee. The plaintiff recovered a judgment for $55 damages and costs. The defendant appealed to the county court, where the judgment was affirmed. He then brought an appeal to this court. W. Woodbury, for the appellant. C. C. Torrance, for the respondent. By the Court, GREENE, J. This is an action brought to re- cover the value of the plaintiff's special property in five cows, which he alleges have been wrongfully converted by the defend- ant. The plaintiff claims under a contract with one William R. Phillips, by which he hired the use of the cows of Phillips for a year, which had not expired at the time they were taken from the plaintiff's possession, by the defendant. The defend- ant claims the property under a chattel mortgage executed by Phillips to one Kellogg, on the 4th day of December, 1852, to secure the payment of $170.92 in six annual payments. This mortgage was assigned by Kellogg to the defendant, on the 3d day of May, 1853, and the cows were taken from the plaintiff's possession by the defendant, a few days after the assignment of the mortgage to him. The precise time when the cows were hired by the plaintiff of "Phillips is not stated in the case, but it is apparent from all the evidence, and particularly from that given by the plaintiff on the question of damages, that the con- tract of hiring was made in the spring of 1853, after the execu- tion of the mortgage under which the defendant claims. This fact was virtually conceded by both parties at the trial, and it ust be assumed here. The question then is, had the defendant a right under the mortgage to take the property therein described, before the mortgagees debt became due ? The mortgage is in the usual form, and transfers the legal title to the property to the mort- gagee. By the first clause of the condition this title is made defeasible upon the payment of the mortgage debt according to VOL. XX. 78 618 CASES IN THE SUPREME COURT. Rich v. Milk. * the terms of the condition. The condition also contains another clause, providing that if default be made in such payment, or if the mortgagee shall at any time deem himself in danger of losing his debt by delaying the collection thereof until it be- comes payable, he may take possession of the property at any tim.e, before or after the time limited for the payment of such debt, and sell the property or so much thereof as shall be neces- sary to satisfy the debt and reasonable expenses. If the % condition of the mortgage had contained the usual clause of defeasance merely, there can be no doubt that the mortgagee, in whom the legal title to the property was vested by the mort- gage, would have had the right, by virtue of such title, to take and retain the possession of the property until the payment of the mortgage debt. But it is claimed by the plaintiff, that the clause giving the mortgagee the right, in case he shall deem himself in danger &c., to take and sell the property and pay the mortgage debt, by implication gives the mortgagor the right to retain the possession until the happening of that con- tingency. The argument is that it is apparent from this clause that such was the intent of the parties. It is certainly remark- able that the intent, if it existed, to secure such a right to the mortgagor, should be found so obscurely shadowed forth, or rather so ingeniously concealed in a stipulation which in all its terms relates exclusively to the rights of the mortgagee. It is said that -if the mortgagee had the 'title and the consequent right to take possession of the property, independent of such a stipulation, the parties could have had no other object in insert- ing it than to limit the exercise of that right. But a little at- tention to the terms of the stipulation will show that it materi- ally enlarges the rights of the mortgagee, and gives him remedies which he would not have had under a mortgage which did not contain this clause. Under a mortgage of the latter description he would take a title to the property, defeasible upon the per- formance of the condition. Upon a failure in such performance, the title would become absolute at law, and the mortgagor's only remedy, if any, would be by a bill in equity to redeem. This equity of redemption could be foreclosed by the mortgagee either NIAGARA SEPTEMBER, 1855. Q\Q Rich v. Milk. by a bill filed for that purpose, or by the shorter process of a sale of the mortgaged property, on reasonable notice to the mortgagor, after default. (Charter v. Stevens, 3 Denio, 33.) But by virtue of the stipulation in question, the mortgagee, if he deems himself in danger of losing his debt by delaying its collection, may proceed and foreclose the rights of the mortgagor before any default on his part. It is plain, therefore, that the power conferred upon the mortgagee by this stipulation Avas in- tended as a cumulative remedy merely, and that it was not intended, and cannot be held to qualify the mortgagee's right, as the legal owner, to the possession of the property, at all times. before the performance of the condition which defeats his title. It follows that the defendant below had a right to take pos- session of the property in question and to retain it as against the mortgagor and all claiming under him, during all the time that the plaintiff claimed it under his contract with the mort- gagor. It is unnecessary to decide whether the mortgagee, when he exercises the power conferred by the clause in question, must prove the happening of the contingency mentioned in the stipulation. This is a question in which the plaintiff has no interest. The defendant had a right to take and detain the property as against him, and if he has sold it without right and foreclosed the mortgagor's rights, he is answerable to the mort- gagor, but not to the plaintiff. The judgment of the county court, and that of the justice's court, must be reversed. [NIAGARA GENERAL TERM, September 3, 1855. Bou-en, Mulleti and Gran i Justices, i (320 CASES IN THE SUPREME COURT. GRIFFITH vs. FOLLETT. lu an action to recover damages for a neglect of duty by the defendant as cana] commissioner, the complaint alleged that the defendant being canal commis- sioner, it was his duty to repair the banks of the canal at the place where the injury was sustained. Held that this allegation of the defendant's official character was made for the purpose of charging him with the duty for a neg- lect of which the action was brought ; and that if any neglect of official duty which rendered him liable to an action, in any form, was alleged, the action was properly brought against him in his private character ; and that the several causes of action were properly united. Held also, that it was no objection to the complaint, that it did not contain any averment that the defendant had funds sufficient to repair the banks of the canal. The question, as to the liability of a canal commissioner, for a neglect of duty, depends, in each case, upon the character of the duty which the statute has imposed upon him. If it is imperative, and specific, the commissioner is re- sponsible to any person who has sustained an injury in consequence of his neg- lect of duty. But if the duty is to be discharged according to the discretion and judgment of the commissioner, he cannot be held responsible to a party who has sus- tained an injury either by the manner in which he discharges it, or by a neglect to do any particular act falling within the general scope of his duties. A canal commissioner is to examine the works committed to his charge, and from such examination he is to ascertain and determine, that is, decide as to the necessity for any particular repair, and act accordingly. It is not his duty to make repairs when, or as, he may be requested or advised by others. But as to the necessity of such repairs, their nature and extent, and the time when they are to be made, he is to be guided by his own judg- ment. And his judgment is conclusive, upon the question, and cannot be called in question collaterally, in an action brought by a party who has sus- tained an injury by the commissioner's neglect to act, in any particular case. There is, however, a class of cases in relation to which the duty of the commis- sioner is, in its nature, absolute and certain. Thus, when the navigation of the canal is interrupted or impeded by any obstruction of the channel, or by the destruction of any bank or structure, the necessity for immediate repairs is apparent, and the duty of the commissioner to make them is imperative. He has no discretion to exercise, in such a case, as to the necessity of repairing, but is bound to make the repairs without delay ; and for a neglect to make them, after notice of the facts showing their necessity, the commissioner is liable to any party injured by the neglect. 1 PPEAL from an order made at a special term, sustaining a A. demurrer to tlie first and second counts of the complaint, md overruling the demurrer as to the other counts. NIAGARA SEPTEMBER, 1855. Griffith v. Follett. The first count of the complaint alleged that at the several times therein mentioned, the defendant was a canal commission- er of the state of New York, and had section No. 14 of the Erie canal under his charge ; and that as such commissioner, it was his duty to keep the said section in such repair that canal boats might navigate the same safely. That for a long time before the 18th day of September, 1853, the defendant neg- ligently and carelessly, and not regarding his duty in that behalf, suffered the banks of the canal upon the said section to become weak and dangerous so " that there was great dan- ger that a break would occur therein, at the place where the break mentioned in the first count did occur, and so that it was dangerous arid unsafe for canal boats to navigate that part of the canal, and that they could not navigate the same without danger of loss and damage to said boats and their cargoes ; of all which the defendant had notice and which he well knew. That the defendant negligently and carelessly permitted the said bank to remain weak and dangerous and without repair, until the said 18th day of September, when *a break occurred in said bank by reason of such negligence. That when the said break occurred, a canal boat belonging to the plaintiff was navigating that part of the canal, laden with a cargo of wheat, and that by means of said break said canal boat was sunk and broken and the boat and its cargo lost to the plaintiff. The second count contained the same averments as the first, and the additional averments that at the several times stated in the first count the defendant as commissioner, had sufficient funds in his hands to repair the bank in question, and that he negligently and carelessly suffered the bank to become and remain weak and dangerous "without expending or applying any of the money aforesaid in or about its repair, until after the break in question occurred." The third count alleged the ownership of a canal boat by the plaintiff, that he intended to carry, in the same, on said canal, a cargo of wheat, and that the defendant destroyed and converted the boat to his own use and thereby hindered the plaintiff from carrying the said cargo, whereby the plaintiff lost said boat and the freight that he might have earn- 622 IN THE SUPREME COURT. Griffith v. Follett. ed on said cargo. The fourth count was in trover, for the con version of a canal boat, by the defendant. To the first and second counts the defendant demurred, first on the ground that they did not set forth a cause of action ; and second, that there was a defect of parties in that the defendant should have been sued as canal commissioner, and not in his individual capacity. There Avas also a demurrer to the whole complaint, on t.he ground that several causes of action had been improperly joined. The demurrer to the first and second counts, on the ground that they contained no cause of action, was sustained. The demurrer for defect of parties and for non-joinder was overruled, and both parties appealed. Geo. B. Hibbard, for the plaintiff. I. The general rules as to the liability of officers are these : (1.) A public officer who is by law required to act in certain cases according to his judg- ment or opinion, sworn to discharge his duties, and subject to penalties for neglect, is not liable to a party for an omission arising from neglect or want of skill, if acting bonafide. (Bac. Abr. art. Office and Officers, O, and cases cited.) (2.) An officer intrusted by the common or statute law is liable to an action for negligence in the performance of his tfust or dut}*-. 01 for fraud orneglect in the execution of his office. (Bacon's Abr art. Office and Officers, O, and cases cited.) II. The first ground of demurrer is not well taken. (See 1 R. S. 220, IT, [18.) ''Whenever in the opinion of the canal commissioners it shall become necessary or expedient to make any extraordinary repairs or improvements on any completed canal, such as the opening of new feeders, or the construction of additional locks, dams, embankments, tunnels or aqueducts,'' it shall be their duty to make out plans, submit them to the board, and when the board or the legislature shall order them, &c. to carry them out. (See 1 R. S. 221, 23, [ 25;] 99, 100, p. 236.) "Whenever the navigation of any of the canal?, shall be interrupted or endangered, it shall be the duty of th^ commissioners, without delay, to repair the injury causing or threatening such interruption, and for that purpose they shall NIAGARA SEPTEMBER, 1855. 623 Griffith v. Follett. have power to enter upon and use any contiguous lands, and to procure therefrom all such materials as in their judgment may be necessary or proper to be used in making such repairs." (See 1 R. S. 222, 29, [33].) The previous section having said that the canal board " shall from time to time assign to each act- ing commissioner in special charge the line or portion of the line of one or more of the canals," the section referred to says, " it shall be the duty of each acting commissioner, 1. To exanv ine frequently and carefully into the state of the canals and works committed to his charge. 2. To direct and cause to be made such ordinary repairs as he shall perceive to be necessary. 3. To superintend and cause to be made such extraordinary repairs or improvements as shall be ordered. 4. To make by himself, or a superintendent of repairs, all necessary contracts for the supply of materials and the performance of labor." The repairs which were omitted to be made were " ordinary repairs." (See Liaics q/"1834, p. 787.) But whether technically ordinary repairs or not, yet in the precise case stated in the complaint, the defendant is liable for the infraction of duty prescribed by the second section above quoted. (See Adsit v. Brady, 4 Hill, 630, and cases and statutes referred to. Wilson v. The Mayor of New York, 1 Denio. 595.) III. The second ground of demurrer is not well taken. (See authorities tj*c. under last point.} IV. The third ground of demurrer is not well taken. The law will presume that the plaintiff was rightfully in the canal, till the contrary is shown. The complaint alleges that the plaintiif was not in fault. He is alleged to have been in busi- ness lawful to be done, and so recognized by many general laws. Ft would be the statement of ^ conclusion of law and therefore improper. (5 Sand. 507.) V. The fourth ground of demurrer is not well taken. (See authorities, cj*c. under point 1.) The authorities relied upon for showing that it is necessary to allege funds in the hands of the defendant are cases where the officers did not have power to raise funds. In this case the defendant not only had means supplied by law, but ample power to complete all repairs. (See 624 CASES IN THE SUPREME COURT. Griffith v. Follett. Adsit v. Brady, 4 7/*7/, 630, aw/Z corses rz/zc/ statutes refer- red to.} VI. The first, second, third and fourth causes of demurrer to the second count are badly taken, for the reasons specified under point 2. It is also made a cause of demurrer, that " there is a defect of parties," in this, that the defendant is sued as an " in- dividual," and not as an officer. This is bad, for the reason that he is not sued as an officer, or as a quasi corporation with an offi- cial fund to resort to. He is sued as an individual, and his de- scription as an officer has nothing to do with his character as defendant. His holding the office and neglect of its duties are the very elements of the action, and these are stated. There is no such " defect of parties." or any other good cause of demur rer, in this particular. VII. The last alleged cause of demurrer is not well taken. (1.) The matters stated in the different counts are " evidently" " transactions connected with the same subject of action." (See Code, 167, sub. 1.) (2.) The causes of action are for injuries " with or without force to property." (See Code, 167, sub. 1 ; Rodgers v. Rodgers. 11 Barb. 595.) IV. G. Bryan, for the defendant. I. The first and second counts are identical, except that the first omits to state that the defendant had funds sufficient to make the repairs alleged to have been necessary, ler v. The New York Central Ins. Co. the opinion of the court on a case to be made. I think this jol- icy is broad enough to cover the machinery and fixtures in the mill. The insurance was for $1000, on the plaintiffs' steam saw- mill. The steam saw-mill embraces the whole thing the whole mill, with its apparatus. It does not mean merely the building itself, but includes the whole machinery necessary to make it a. steam saw-mill in all its parts. (10 Barb. 440. 2 Hairs S. C. Rep. 490. Angell on Ins. 103, 104, 106.) The only remain- ing question in the case is whether the plaintiffs forfeited their insurance by procuring the subsequent insurance in the Globe Company. The contract of insurance in question contains the following condition : " And if the said insured or their assigns shall hereafter make any other insurance on the same property, and shall not with all reasonable diligence give notice thereof to the secretary, and have the same indorsed on this instrument, or otherwise acknowledged by the corporation, in writing, this policy shall cease and be of no further effect." /There can be no question, upon this contract, that when the plaintiffs obtained further insurance upon this mill it was their duty to give notice thereof to the defendants, and either have the same indorsed on the policy or otherwise acknowledged by the defendants in writ- ing. (5 Hill, 147. 14 Barb. 206. 16 Peters' U. S. R. 495, 512.) If the plaintiffs neglected to comply with this condition, the policy was by the very terms of the contract to cease and be of no further effect. The plaintiffs entirely failed upon the trial to show compliance with this condition of their policy. If any notice was ever sent to the defendants, which it seems to me the evidence fails to show, it was nothing more than a notice that the plaintiffs had made application to the Globe Company for an additional insurance. Whether they succeeded in procuring it they never communicated to the defendants. This certainly was no compliance with the condition of the plaintiffs' contract, and this is not a case where notice to Bishop will answer the condition of the policy. The plaintiffs have expressly agreed that in case they shall effect any other insurance on this prop erty, and shall not with all reasonable diligence give notice thereof to the defendants' secretary, and have the same indorsed TOMPKIXS SEPTEMBER, 1855. 637 Bigler v. The New York Central Ins. Co. &c.. this policy shall cease and be of no further effect. This entitles the defendants to have notice given to their secretary. It is a part of the contract, and cannot be dispensed with by this court. The plaintiffs claim and insist, however, that 4he policy issued to them by the Globe Company was a void policy, and that consequently no notice of the same was required to be given to the defendants. It was shown upon the trial that the Globe Company had no notice of the existence of the defendants' policy until after the property was destroyed by fire. There was a clause in the Globe policy " that in case the assured shall have already any other insurance against loss by fire, on the property-hereby insured, not notified to the company and men- tioned in or indorsed upon this policy, then this insurance shall be void, and of no effect" This clause undoubtedly relieved the Globe Company from liability on their contract of insurance. No action could be maintained upon it if they saw fit to set up the defense. The Globe policy was not void upon its face ; but as soon as the fact was alleged and proved it relieved that com- pany from any liability upon their contract. The real question, therefore, presented for our adjudication, is whether this policy in the Globe Company can be set up by the defendants to avoid their contract of insurance with the plaintiffs. In other words, whether an insurance that shall operate to avoid the defendants' policy under the clause to which we have adverted must not be a valid policy one that is binding on the insurers. I have not been able to find any adjudged case in the courts of this state determining this question. The case of Carpenter v. JThe Providence and Washington Ins. Co., (16 Peters, 49. 508, 9,) determines the question in favor of the defendants ; and if that case is to be followed, the plaintiffs are not entitled to judgment upon their verdict. That case holds, that under such a condi- tion in a contract of insurance, notice of subsequent void or void- able policies must be given to the underwriters, unless the policy is void upon its face, without any reference whatever to extrinsic facts. (16 Peters, 510.) The Globe policy was not either void or voidable upon its face. It was merely voidable by the under- writers, upon due proof of the facts. In this very case the 638 CASES IN THE SUPREME COURT. Bigler v. The New York Central Ins. Co. plaintiffs held on to that policy until after the destruction of the property insured, and then brought an action upon the pol- icy, against the Globe Company, thereby affirming the validity of |he policy, and which suit the Globe Company settled by giv ing the promissoiy notes of certain officers of the company which the plaintiffs still hold. The plaintiffs having effected this subsequent insurance in the Globe Company and held the policy as valid in their hands, claiming all the benefits of an in surance contract from it. they were bound to give notice thereof to the defendants under the clause in their contract to which we have adverted, although this policy was voidable, if the Globe Company saw fit to set up the defense. The case falls within the very words and meaning of this stipulation in the defend- ants' policy. I will not enter upon a discussion of the reasons which might be assigned for the judgment which we have pro- nounced. A single reason is sufficient in addition to those assigned in the case above referred to, in 16 Peters. One reason why the defendants require notice of subsequent insurances upon the same property to be given to them is, that the plain- tiffs may not insure the property up to its full value without their knowledge, and thereby have much less motive to preserve it from destruction by fire than they would have if they were their own insurers for a portion of its value. The fact that the plaintiffs procured this insurance in the Globe Company and paid their money for it, and held it, claiming it to be a valid in- surance, and after the fire brought their action upon it, shows they regarded it as a good insurance. The effect, therefore, upon the defendants in this respect would be the same as though it were a valid policy. I am aware that the cases of Jackson et al. v. The Massachusetts Mutual Fire Ins. Co., (23 Pick. 418.) and of Stacy v. The Franklin Fire Ins. Co., (2 Watts $ Serg. 544,) hold a different doctrine ; but those cases, so far as they conflict Avith the views above expressed, are not to be followed. The case of Sexton v. The Montgomery Co. Mn. Ins. Co., (9 Barb. 191,) and of Wilson v. The Genesee Mil. Ins. Co., (16 id. 511.) which hold that notice given to the agent of the company authorized to make surveys and receive applications, &3 is a NEW YORK SEPTEMBER, 1855. 639 Rogers v. Tilley. sufficient compliance with such a clause in an insurance policy, are not applicable to the case under consideration. The require- ment in the condition of the policies in those cases was general, that notice should be given to the company. The case under consideration is different. The defendants have guarded their rights, by requiring the plaintiffs to have it a part of their con- tract that this notice shall be given to the secretary of the company. The plaintiffs are not entitled to judgment upon their verdict, and the verdict must be set aside and a new trial grant- ed, costs to abide the event of the action. [TOMPKINS GENERAL TERM, September 11, 1855. Shankland, Gray and Mason, Justices.] 20 639 ROGERS and others vs. TILLEY and others. a_2i T conveyed his property to R. by deed, in trust to receive the income and ap- ply it, first, to the payment of his existing debts, and secondly, to the use of his wife and children during his life; and on his death, to convey the fee or tiapital to his children then in being. Held that although the absolute power of alienation was suspended, both by the nature of the trust and by the con- tingent remainder in favor of unbo?n children, yet the suspension from either cause could by no possibility continue longer than one designated life in being, and was therefore not contrary to the statute. A trust to receive rents and profits, and apply them to the payment of debts, may be satisfied by a sale of the premises for a term of years, taking the whole rent in advance and discharging the debts ; and such a sale is not contrary to the statute. An application of rents and profits, by way of trust, to the use of a man r s family, is an application of them to his use, and if confined to the period of his life, and to a living, designated individual, is not contrary to the statute. Even if this were not so, and the use were to be considered as exclusively that of the wife and children, as it is only, in any event, for their lives, and cannot possibly last longer than the life of the father, which may be a shorter period, it is not contrary to the statute. If any of the trusts in a deed are valid, the deed is not void. A single good trust is sufficient to sustain it. A trust in favor of t\v> named children of the grantor and his wife, already born, " and such as may be born of the lawful issue of" the grantor and his wife; means the existing children, and such, if any, as shall be afterwards born, be- iug lawful issue of the grantor and his wife. 640 CASES IN T11E SUPKEME COURT. THIS was an amicable suit to vacate or correct a family settle ment, alleged to have been drawn up by mistake in a form not truly expressive of the intent of the parties, and to be void as it stands, partly for uncertainty and partly for alleged ille- gality in the trusts created by it. The facts in the case suffi- ciently appear in the opinion of the court, which was rendered by, ROOSEVELT, J. By the terms of the deeds in suit in this action, Tilley conveyed his property to Rogers, in trust, to receive the income and apply it, first, to the payment of his existing debts, and secondly, to the use of his wife and chil- dren, during his life ; and on his death, to convey the fee or capital to his children, then in being. Such an arrangement, it is obvious and it is the first question in the case suspends the power of absolute alienation. The trustee cannot sell, be- cause the trust does not authorize him to do so. The bene- ficiaries, or at least some of them, cannot, because as to the rents and profits, they are made inalienable bylaw, and because, as to the capital, the children living at their father's death, to whom it is then to belong, may be totally different from the two now born. Hence there are no persons in being by whom, as the statute expresses it, " an absolute fee in possession can be conveyed." But all suspensions of the absolute power of alienation are not prohibited. On the contrary, if restricted to two lives, they are expressly allowed ; and in cases of minority, even for a possible period of twenty-one years more. In the present instance, the ownership becomes absolute on Mr. Tilley's death. The suspension is for his life, and his life only. For, al- though the income (subject to the debts) is to be applied " to the use of the wife and children," it is not for their lives abso- lutely, but "for a shorter period" for a period at all events, which cannot be longer, but may be shorter, than the lives of the persons to be benefited. The application of the income is to l>e made to the use of the children during their lives, unless their father should sooner die. On his death the trust cer- tainly terminates, also the contingent character of the future estate. From that time, the rents are to be received directly NEW YORK SEPTEMBER, 1855. 641 Rogers v. Tilley. by the children themselves, then in being, like any other own- ers in fee, with full power also to dispose of the estate itself, without restriction or qualification. It may be asked, should both the present children (no others being born) die before their father, what then is to be done with the income ? In the language of the statute, I answer that "not being embraced in the trust, and not being otherwise disposed of, it remains in or reverts to the person creating the trust." It would be sufficient, however, for my purpose to say that, sub- ject to the rules of suspension as above stated, the law ex- pressly authorizes the creation of a trust " to receive rents and profits and apply them to the use of any person during the life of such person, or for a shorter term." And I might add, if necessary, without doing any violence to the common under- standing, that an application of income during a person's life, or for a shorter period, to the use of such person's family, is an application during his life, or for a shorter period, to the use of such person himself; and that an authority, therefore, to create a trust for the latter purpose necessarily comprehends the right of doing so for the former. Next as to the application of the income to the payment of existing debts and incumbrances. The statute of trusts enu- merates certain purposes " for any or either" of which that is, for any one or more of which in the same instrument trusts of real property may be created. Among these is, first, the payment of debts generally, and secondly, the satisfying of " any charges," as they are called, on the particular land. General debts are to be paid by "selling the land;" .charges, by selling, mortgaging, or leasing it. The reason of the dis- tinction, if any, is not obvious. Besides, " selling" lands for a term of years, as in the case of tax sales in this city, is a legally recognized form of expression used in the statutes of the state. It is a natural and suitable designation of a lease, where the Avhole rent, under the name of purchase money, is taken in ad- vance ; so that selling, when for a limited number of years, whether short or long, is but a mode of leasing and leasing in some of its aspects, is but a mode of selling. Hence a trust VOL. XX. 81 f,42 CASES IN THE SUPREME OC CRT. Rogers v. Til ley. to receive rents and profits, and apply them to the payment of debts, is perfectly lawful. It clearly implies a trust to lease or a trust to sell a leasehold interest both or either taking the rent all down in advance, or receiving it from time to time, in periodical installments. The latter mode, I admit, would, in one vieAv, be void as against creditors. But no creditor in this case complains, and no provision in the deed requires the trus- tee, without the consent of creditors, to lease in that mode. Besides, what prevents the trustee from making a lease with the usual reservation of rent and then selling the right to the rent ? A lessor may sell his lease, as well as the lessee. In either case it is a sale of land, or, more properly speaking, of an estate in land, and nothing in the letter of the statute or in its policy, restricts the sale to a sale in fee. So far as the debts of the grantor were in the form of mortgages, the trust *o lease for the purpose of satisfying them was clearly lawful and within the very words of the statute. And may not gen- eral debts when existing and acknowledged in a trust deed, and provided for by it, without any great stretch of language, be called " charges" on the trust premises ? Had the grantor con- fessed a judgment for their payment, such judgment would clearly have been a charge ; and what is the difference in prin- ciple between a confession in a deed, recorded as a deed, and a confession in a less formal certificate, recorded as a judgment ? Besides, as against a mere voluntary conveyance, all the exist- ing just debts of the grantor, especially since the code, are quasi charges upon the land conveyed ; so much so that the conveyance as far as it obstructs their recovery if at all, is to be adjudged of no effect. This, however, is only at the in- stance of the creditor, if any, who complains. The statute of frauds does not make deeds delaying creditors void absolutely, but void only as against the creditors delayed a case which this bill does not present indeed, it does not even allege the ex- istence of any such creditors. On the contrary, it avers that all the debts have been paid, and all the incumbrances satisfied, except a mortgage of $10,000 the holder of which can either take his pay by installments as the rents are received, or fore- NEW YORK SEPTEMBER, 1855. 643 Rogers v. Tilley. close and get the whole at once. The trust deed neither does nor could in any manner interfere with his rights. And even as to the general creditors I do not see why the deeds, if assent- ed to by them, are not to that extent valid trust mortgages. (See Leitch v. Plollister, 4 Comst. 211.) The trust in favor of the two named children of Mr. and Mrs. Tilley, already born, and " such as may be born of the lawful issue of Mr. and Mrs. Tilley," although badly expressed, means the existing children, and such, if any, as should be afterwards born, being lawful issue of the grantor and his wife. At all events, there is no such insurmountable uncertainty in it as to render the trust on that ground void. The result then is, first, that although the absolute power of alienation is suspended both by the nature of the trust and by the contingent remainder in favor of unborn children, yet the suspension from either cause, can by no possibility continue longer than one designated life in being, and is therefore not contrary to the statute. Second, that a trust to receive rents and profits and apply them to the payment of debts, may be satisfied by a sale of the premises for a term of years, tak- ing the whole rent in advance and discharging the debts, and that such a sale is not contrary to the statute. Third, that an application of rents and profits, by way of trust to the use of a man's family, is an application of them to his use. and if con- fined to the period of his life, and to a living designated indi- vidual, is not contrary to the statute. Fourth, that even if this were not so, and the use were to be considered as exclusively that of the wife and children, as it was only, in any event, for their lives, and could not possibly last longer than the life of their father, which might be a shorter period, it was not con- trary to the statute. Fifth, that if any of the trusts be valid and some of them certainly cannot be disputed the deed is not void. A single good trust is sufficient to sustain it. A de- cree should be entered either to dismiss the bill or to declare the legal effect of the deeds, as above stated. [NEW YORK SPECIAL TERM, September. 22, 1855. Roosevelt, Justice.] 30 644 25h 586 644 CASES IN THE SUPREME COURT. THE ELLICOTTVILLE AND GREAT VALLEY PLANK ROAD COMPANY vs. THE BUFFALO AND PITTSBURGH RAH ROAD COMPANY. Proof that a plank road company has, in accordance with the statute, been duly incorporated and organized, and has built its road, and procured the same to be inspected, and has erected toll gates thereon, and is in the actual use, oc- cupation and enjoyment of the road, is sufficient to enable the company to maintain an action of trespass, for an entry upon the road, against any persons who do not show a better right to the possession of it in themselves. Since the act of 1851, in relation to rail road companies, such companies have no right to enter upon, occupy or cross a turnpike or plank road, without the consent of the owners, except upon the condition of first paying the damages sustained by the turnpike or plank road company, after the same shall have been ascertained under the statute. Although, by the 5th subdivision of the 28th section of the general rail road act, a rail road company is empowered to construct its road across, along or upon any stream of water, water course, street, highway, plank road, turnpike or canal, which the route of its road shall intersect or touch, this provision is to be construed as granting only the right which the public had in such streams, plank roads, turnpikes, &c. and not as attempting to grant any right to violate private property without the consent of the owners. The maxim de minimis non curat lex is not an appropriate answer to an action for violating a clear legal right. was an appeal from a judgment entered in favor of the A defendants, upon the report of a referee. The action was brought by the Plank Road Company, to restrain the Rail Road Company from entering upon the lands and premises of the plaintiffs for the purpose of constructing their rail road at the points mentioned in the complaint, and from removing the plunks and grading from the plaintiffs' premises ; and from de- positing, within the premises of the plaintiffs, materials for the construction of the rail road ; and from running locomotives and cars upon and over the plaintiffs' plank road, at the places and points mentioned ; and to recover damages for injuries already done. The defendants, by their answer, denied all the facts stated in the complaint. And for a further answer to the complaint, stated, 2d. That the places and routes claimed by the plaintiffs for their plank road are a public highway, and were so at the ERIE NOVEMBER, 1855. 545 Ellicottville &c. Plank JRoad Co. v. Buffalo &c. Rail Road Co. time the defendants were said to have entered on the same ; and that the defendants' rail road necessarily runs along the line of the highway, and that the defendants had carried the highwaj over the track of their rail road, at the points mentioned, and had restored the highway to its former state, and had not unnecessa- rily impaired its usefulness. 3d. That the track of their rail road necessarily crosses and runs along and upon the plank road ; that at the points mentioned in the complaint the defendants had carried the plank road over the rail road, and had restored the plank road to its former state, so as not in any manner to have impaired its usefulness, but had left the same in as good condition as it formerly was before the track of the rail road was constructed. The action was referred to a sole referee, for trial and determination. The referee, after the hearing before him, reported in substance the following facts. That in the year 1850, the plaintiffs duly filed articles of association, in the office of the secretary of state, and procured themselves to be duly incorporated, organized and formed into a company for the pur- pose of building a plank road, from the village of Ellicottville through the town of Great Valley, to Great Valley station on the New York and Erie Rail Road, in the county of Cattarau- gus. That in pursuance of such organization, the said company went on and built and completed their said plank road, in the year 1851. That the road was located by the company and built along and upon the highway, through the town of Great Valley, at the points where the trespasses mentioned in the complaint in this action were alleged to have been committed ; and that, prior to the building of the plank road, the same had been used as a public highway for the period of twenty-one years and upwards. That James Nelson, at and prior to the forma- tion of the plank road company and the making of the road, was the owner and occupant of the land, on both sides of the high- way. That previous to the building of the plank road, the com- pany did not procure the consent of the commissioners of high- ways of the town of Great Valley, nor of two-thirds of the inhabitants residing on the line of the road, nor had they, at any time since, done so. That prior to the time of the alleged tres- 646 CASES IN THE SUPREME COURT. Ellicottville &c. Plank Road Co. v. Buffalo &c. Rail Road Co passes, and after they had built their road, the plank road com- pany had. in accordance with the statute, procured the road tc be inspected, and had erected toll gates thereon, and were in the actual use, occupation and enjoyment of the same. The referee further found and reported, that the defendants were duly organized as a rail road company, on the 7th day of October, 1852, for the purpose of building a rail road from the city of Buffalo to the New York and Erie Rail Road in the county of Cattaraugus ; and that it became and was necessary for them to build on and across the said plank road in the said town of Great Valley, at the points where the said plank road was constructed, and upon the highway through the lands occu- pied by the said Tames Nelson ; and that the defendants did, without the consent of the plank road company, enter upon the same at the places aforesaid, tear up the planks, and grade the land for the purpose of laying down a track thereon, which was the same trespass and injury mentioned in the complaint in this action ; and that the injury done to the road of the plaintiffs by tearing up the plank road was only nominal, and no more than was necessary to enable the defendants to grade their road for the purposes aforesaid. From the foregoing facts the referee found and reported the following conclusions of law : That at the time of the commence- ment of this action, the plaintiffs had not any title to or right in the land or premises where the alleged trespasses were commit- ted, and that the plaintiff could not recover : and that a judg- ment must be entered for the defendants, that they recover their costs against the plaintiffs in this action. Upon this report a judgment was entered, that the plaintiffs take nothing by their said complaint, and that the same be dis- missed ; and that the defendants do go thereof without day. And it was further adjudged, that the defendants should recover of the plaintiffs the sum of $63.34, adjudged to the defendants for the costs and expenses of this action, and that they have ex- ecution therefor. ERIE NOVEMBER, 1855. 547 Ellicottville &c. Plank Road Co. v. Buffalo &c. Rail Road Co. The appeal was argued in this court by Harrington $ Lamb, for the appellants. A. G. Rice, for the respondents. By the Court, MULLETT, J. This was an action brought by the plank road company to recover damages from the rail road company, for a trespass committed by them, by entering upon the plank road, tearing up the plank and grading and de- positing materials for the rail x road within the bounds of the plank road ; and for an injunction against the rail road compa- ny to restrain them from proceeding with the construction of their rail road on and across the plank road, until they had pro- cured the damages to be assessed and paid. Upon the trial, it was proved, and the referee found and reported, that the plank road company was duly incorporated and organized in 1850, and that they went on and built their road in 1851. That prior to the alleged trespasses by the defendants, the plank road company had, in accordance with the statute, procured their road to be inspected and had erected toll gates thereon, and were in the act- ual use, occupation and enjoyment of the same. This was abund- antly sufficient to enable the plaintiffs to maintain an action o/.' trespass for an entry on their plank road, against any persons who did not show a better right to the possession of it in them- selves. The referee, therefore, erred in deciding, that, at the time of the commencement of this action, the plaintiffs had not any title to, or right in the land and premises, where the alleged trespasses were < ommitted, and that the plaintiffs could not recover therein, on that account. But it appeared on the trial before the referee, and also on the argument of the appeal before us, that the de- fendunts claimed, that, as a rail road corporation, they had a right to enter upon the plaintiffs' plank road, and construct their rail road upon and across it, without, or before, causing the daiuages sustained, or to be sustained by the plank road tompany, to be assessed or paid ; which is denied by tho plain- (,48 CASES IN THE SUPREME COURT. Ellicottville &c. Plank Road Co. v. Buffalo &c. Rail Road Co. tiffs, and this presents the most important question between the parties. The defendants, as a rail road company were incorporated and organized under the act to authorize the formation of rail road corporations, and to regulate the same, passed April 2d, 1850, commonly called the general rail road act. (Laws of 1850. p. 211.) By the fifth subdivision of the 28th section of which act, it is provided, that every corporation formed under that act, in addition to certain other specified powers, shall have power to construct their road across, along and upon any stream of water, water-course, street, highway, plank road, turnpike or canal, which the route of its road shall intersect or touch ; but that the company shall restore the stream or water-course, street, highway, plank road or turnpike thus intersected or touched, to its former state, or to such state as not unnecessarily to have impaired its usefulness. This provision of the statute was copied from the 5th subdivision of the 19th section of the act of 1848, on the same subject ; and that, so far as it relates to crossing streams of water, water-courses, roads and highways, was taken from the llth section of the act to provide for the con- struction of a rail road from Auburn to Rochester. (Seas. Laivs of 1836, p. 493.) This statute has not been and cannot be so con- strued as to authorize a rail road corporation to enter upon and permanently occupy or seriously to injure a turnpike or plank road company who hold and enjoy their franchises and property under an authority of the legislature, equally valid and sacred as that which confers similar rights and privileges on rail road companies. On the contrary, this section is a clear manifesta- tion of a legislative intention to protect the rights of turnpike and plank road corporations against intrusion and violence, by rail road companies. Rail road companies are authorized to intersect or touch them only on condition that they shall not unnecessarily impair their usefulness, to the owners. The in violability of private property, whether belonging to individuals or private corporations, against the intrusion of rail road corpora- tions, is strongly asserted and clearly illustrated by the su- preme court in the cases of Fletcher v. The Auburn and Slyra- ERIE NOVEMBER, 1855. 549 Ellic': Uville &c. Plank Road Co. v. Buffalo &c. Rail Road Co. cuse Rail Road Co., (25 Wend. 462 ;) The Trustees of the Presbyterian Society in Waterloo v. The Auburn and Hoc/t- ester Rail Road Company, (3 Hill, 567,) and the case of The Seneca Road Co. v. The Auburn and Rochester Rail Road Co. (5 Hill, 170.) The legislature could not give, and it is not to be presumed that they intended or attempted to give, to this rail road company a right to enter upon the plaintiffs' road and in any way to impair its usefulness or diminish its value, with- out making or becoming liable to make the plank road company just compensation. The obstacle heretofore considered as existing in the way of a rail road company acquiring a right to run their rail road across a turnpike or plank road, consisted in the want of power to acquire the privilege desired, except by agreement. The statute authorizing a rail road company to acquire the title to real estate wanted for the road, by the special proceedings pointed out by the statute, was not considered applicable to cases where the title to the real estate was not to be taken, but only a partial privilege of using it, which did not divest the owners of their title, but only occasioned them some damage, which the rail road company had no power to compel them to surrender. This construction of the statute was in harmony with the legal doctrine of the inviolability of private rights, but was not in accordance with the enterprise and improvements of the age. That a turnpike or plank road, though owned by individuals and used as private property, might be extended through an important section of the state, and through its whole length intercept and cut off the far more important transits of rail roads, or be the occasion for demanding an exorbitant price for crossing them, is a consequence probably not foreseen at the time of the incorporation of these turnpike and plank road companies. It is true, that by the 5th subdivision of the 28th section of the general rail road act, a rail road company is empowered to construct its road across, along or upon any stream of water, water-course, street, highway, plank road, turnpike or canal, which the route of its road shall intersect or touch ; but this statute is construed as granting only the right VOL. XX. 82 650 CASES IN THE SUPREME COURT. Ellicottville &c. Plank Road Co. v. Buffalo &c. Rail Road Co. which the public had in these streams of water, water-coin ses, streets, highways, plank roads, turnpikes and canals, and not as attempting to grant any right to violate private property without the consent of the owners ; and this construction is sustained by the doctrine of noscitnr a sod is. (BurrilVs Law Diet. part 2, p. 756. 3 Term Rep. 87. 1 B. fy C. 644. 13 East, 531. Broom's Legal Maxims, 294.) The same reluctance in the legislature to violate individual property, or take it, or authorize another to take it, without the consent of the owner, or making compensation to him for it, is manifest in the 24th section of the general rail road act of 1850. The legislature provided for what might, in many cases, be considered an ad- equate compensation for crossing a turnpike or plank road, but they have riot said so, nor compelled the owners to take it as such. By the 18th section of the general rail road act, it is declared that all real estate acquired by any company under and pursuant to the provisions of that act. for the purposes of its incorporation, shall be deemed to be acquired for public use. This is, in substance, but a legislative recognition of the doctrine laid down by the chancellor in the case of Beekman v The Saratoga, and Schenectady Rail Road Co., (3 Paige, 45,' and practiced upon ever since. This is the principle upon which rail road companies are authorized to take private prop- erty for the use of their rail roads, upon paying a compensation ascertained in the manner provided by the statute * but it can- not authorize them to trespass upon the lands of others which they do not take, and for which they pay no compensation, which it must do if it authorizes them to enter upon the land and appropriate it before ascertaining and paying the compen- sation. By the 4th section of the act of 1851, in relation to rail road companies, a rail road company which shall occupy or cross a turnpike or plank road, is made liable to pay such turn- pike or plank road company all damages which it may sustain by reason of such occupancy or crossing ; the damages to be ascertained and paid in the same manner as is provided by law for the assessment and payment of damages in cases of taking private property for the use of rail road companies. (Sess. ERIE NOVEMBER, 1855. 55] Ellicottville &c. Plank Road Co. v. Buffalo &c. Rail Road Co. Laws of 1851, p. 21.) The law to authorize the formation of rail road companies, and to regulate the same, passed in 1850. after pointing out the manner hi which a rail road company shall proceed to ascertain the damages to be paid for the real estate to be taken for its use, declares that a certified copy of the order to be made on that occasion, shall be recorded at length in the clerk's office of the county in which it is situated ; and that, thereupon, and on the payment or deposit, by the company, of the sums to be paid for the land &c. the company shall be entitled to enter upon, take possession of, and use the said land for the purposes of its incorporation. (Sec. 18.) Whatever may have been the claim of rail road companies, be- fore this statute, to a right to enter upon, occupy or cross a plank road without being liable for the damages occasioned by them, since the act of 1851 they have no such right, but can occupy or cross a turnpike or plank road, without the consent of the owners, only upon the condition of first paying the dam ages sustained by such turnpike or plank road company, ascer- tained under the statute. This construction of the 4th section of the act of 1851, is in harmony with the spirit of our consti- tution ; with the principles so uniformly asserted and maintain- ed by our judiciary ; with the sentiments which have generally governed our legislature ; with the just and magnanimous policy which dictated the law, and with the. language of the statute to which it was assimilated. The referee also erred in finding and reporting that the in- jury done to the road of the plaintiffs by tearing up the planks, was only nominal. He might have found the damages as small as the truth or facts would justify, but the maxim de minimis non cur at lex is not an applicable answer to an action for violating a clear legal right. The judgment appealed from must be reversed ; 'the report of the referee set aside, and a new reference to the same or some other referee, ordered. Judgment reversed. [ERIE GENERAL TERM, November 14, 1855. Bowen, Mullctt and Greene Justices.] 652 CASES IN TIIE SUPREME COURT. THE PEOPLE, ex rel. EZRA B. BOOTH, respondent, ys. JOHN FISHER, appellant. The 5th section of the "act for the prevention of intemperance, pauperism and crime," passed April 9th, 1855, does not, either in terms or by just or fair im- plication, restrict the power of courts of special sessions, in respect to offenses under that act, to cases where the party charged either requests to be tried by such court ov omits to give bail. On the contrary, it seems to contemplate that the justice or other officer before whom the accused shall be brought by virtue of the process, shall proceed at once to the trial of the charge. Not only is the power conferred upon the magistrate to try the accused, br.; he is Imperatively required to hold a court of special sessions, and proceed to the trial as soon as the complainant can be notified. Neither his power, or his duty to try, are made to depend upon the defendant's request to be tried, his omission to give bail, or any other condition. ?,he magistrate may therefore proceed to the trial of the accused, notwithstanding the latter offers to give bail for his appearance at the next criminal court having cognizance of the offense. Section 2 of article 1 of the constitution, which declares that " The trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever." was not intended to apply to such a case. The expression " the trial by jury," as used in that section, refers as well to all other incidents of the trial as to the number of men necessary to constitute the jury ; and means such a trial as is contemplated by section 6 of article 1 of the constitution, for persons charged with capital or otherwise infamous of- fenses; which must be upon presentment or indictment of a grand jury, and in a court of record with common law jurisdiction. All offenses which are not capital or otherwise infamous crimes, are left under the regulation of the legislature, in regard to trial by jury. /1ERTIORARI to the county judge of Monroe county. On \J the 9th day of August, 1855, the appellant was brought be- fore S. W. D. Moore, Esq. police justice of the city of Roches- ter, upon a warrant issued by said justice, charged with a violation of the act entitled "An act for the prevention of in- temperance, pauperism and crime," passed April 9th, 1855. On being brought before the justice, he offered to give bail for his appearance at the next criminal court having cognizance of the offense. The justice was satisfied with the responsibility of the bail so offered, but refused to receive it, or to take any bail. Thereupon, on the llth day of August, 1855, the appellant pre- sented his petition to H. Humphrey, Esq. county judge, &c. ; MONROE DECEMBEFv, 1855. Qfc The People v. Fisher. and obtained the allowance of a writ of habeas corpus, in order to be let to bail and be discharged from custody. On the same day the officer made return to said writ, and the same was traversed by the affidavit of the appellant, and issue was joined thereon. On this issue evidence was taken to contradict the return. After hearing the case, and arguments of counsel, the county judge decided not to let the defendant to bail, and ordered him to be remanded into the custody of the police constable, to be tried before a court of special sessions. On the 17th day of August, 1855. the defendant sued out a writ of certiorari, re- moving the proceedings and adjudication of the county judge into this court to be reviewed. 4 Henry Hunter, for the defendant. /. B. Stebbins, for the people. By the Court, WELLES, J. The fifth section of the act en- titled " An act for the prevention of intemperance, pauperism and crime," passed April 9th. 1855, is in the following words : " 5. Every justice of the peace, police justice, county judge, city judge, and in addition, in the city of New York, the re- corder, each justice of the marine court, and the justices of the district courts, and in all cities where there is a recorder's court, the recorder, shall have power to issue process, to hear and de- termine charges, and punish for all offenses arising under any of the provisions of this act ; and they are each hereby author- ized and required to hold courts of special sessions for the trial of such offenses, and under this act, to do all other acts and ex- ercise the same authority that may be done or exercised by justices of the peace in criminal cases, and by courts of special sessions as the same are now constituted ; and the term magis- trate, as used in this act, shall be deemed to refer to and include each officer named in this section. Such court of special ses- sions shall not be required to take the examination of any person brought before it upon charge of an offense under this act, but shall proceed to trial as soon thereafter as the complainant can 654 CASES IN" THE SUPREME COURT. The People v. Fisher. be notified ; and for good cause shown he may adjourn from time to time, not exceeding twenty days. At the time of joining issue and not after, either party may demand a trial by jury, in which case the magistrate shall issue a venire and cause a jury to be summoned and empanneled, as in other criminal cases in courts of special sessions. The complainant may appeal upon such trial upon behalf of the people, and prosecute the same with or without counsel. He may also prosecute the same in all the courts to which, as hereinafter provided, appeal may be ta- ken by attorney, or he may apply to the district attorney, whose duty it shall be upon such application to appear and conduct said appeal from the judgment thereon. The same costs and disbursements shall be allowed against the defendant 'upon such appeal as are now allowed in civil actions, in those courts to which appeal may be taken according to the provisions of this act. In all cases, if the district attorney shall appear and con- duct the trial or appeal, or both, the costs, if any, shall go to him for his individual use ; in other cases to the complainant ; and in default of the payment of the whole or any part thereof, the defendant may be committed to the same extent as provided in the fourth section of this act." By this section the several officers therein enumerated are in- vested with the same powers in relation to offenses under the act of which it constitutes a part, with which justices of the peace are clothed in criminal cases, and are each required to hold courts of special sessions with the same powers in reference to such offenses as courts of special sessions possessed, as they were constituted when the act was passed, in reference to cases within their jurisdiction. By the revised statutes the powers of courts of special sessions are confined to cases where the party charged with an offense requests to be tried before them, or, where he shall not so re- quest, but shall after being required, omit for twenty-four hours to give bail for his appearance at the next criminal court having jurisdiction, &c. (2 R. S. 711, 5, 23.) But the section of the prohibitory act referred to, does not. as the revised statutes do, restrict the power of the courts of special sessions to cases MONROE DECEMBER, 1855. 555 The People v. Fisher. where the party charged either requests to be tried by such court or omits to give bail. It certainly does not do so in terras, nor, as I think, by just or fair implication ; but on the contra- ry it seems to contemplate that the justice or other officer be- fore whom the person charged shall be brought by virtue of the process, shall proceed at once to the trial of the charge. Power is expressly conferred upon the officers mentioned to issue pro- cess, to hear and determine charges and punish all offenses against the provisions of the act ; and for that purpose they are each authorized and required to hold courts of special sessions for the trial of such offense. Such court is not required to take the examination of any person brought before it upon charge of an offense, " and shall proceed to trial as soon thereafter as the complainant can be notified" The section then proceeds to give directions respecting adjournments, and provides for a jury on the demand of either party, if applied for at the joining of issue. It then concludes with some regulations and provis- ions respecting appeals from judgments of the courts of special sessions pi-ovided for in the 8th section of the act, and the costs on such appeals. It will be perceived not only that the magistrate has confer- red upon him the power to try the persons charged, but that he is imperatively required to hold a court of special sessions, and proceed to the trial as soon as the complainant can be notified. Neither his power or duty to try is made to depend upon the defendant's request to be tried, his omission to give bail or any other condition. That the power of courts of special sessions, in the cases provided for in the revised statutes, is thus limited and dependent, and in the act under consideration, acts which, before its passage, were innocent to the eye of the law, are made misdemeanors, their punishment defined, these tribunals erected and provided expressly for their trial and punishment, with di- rections concerning their manner of proceeding, and no mention made of any such condition or restriction of their powers, is strong evidence to my mind that none such were intended to be imposed. Instead of the conditions provided in the revised statutes, these courts, in cases arising under this act, are direct- 656 CASES IN THE SUPREME COURT. The People v. Fisher. ed to proceed at once to the trial of the persons charged with violations of its provisions. It is contended, however, in behalf of the appellant, that if the intention of the act was to compel the person arrested by virtue of the process issued by a magistrate, to be tried before a court of special sessions, without the right on his part to be released from custody upon giving bail to appear at the sessions, the act is so far in contravention of section two of article one of the constitution which declares that "the trial by jury, in all cases in which it has been heretofore used, shall remain invio- late forever." I entertain no doubt that by the words "trial by jury" as there mentioned, was intended a common law jury, which consists of twelve men. But I am satisfied it was not intended to apply to a case like the present. Section six of the same article provides that (: no person shall be held to answer for a capital or otherwise infamous crime, (ex- cept in cases of impeachment and in cases of militia when in actual service, and the land and naval forces in time of war, or which the state may keep with the consent of congress in time of peace ; and in cases of petit larceny under the regulation of the legislature,) unless on presentment or indictment of a grand jury," y a grand jury, leaving the trial of all cases of misdemeanor on the footing of petit larceny, to be provided for by the legislature by a jury of six, twelve or any other number, or without a jury 4. No jury trial in criminal cases was ever known to the common law, but such as followed upon indictment in a common law court, after the accused was in custody, had been arraigned and had pleaded to the indictment. 5. This construction makes the two sections harmonious and sensible. The legislature may declare criminal, acts which were before innocent, as in case of the statute under consider- ation. How can it be said that in such cases a jury trial has been heretofore used ? Section two is expressly limited to cases in which the trial by jury has been heretofore used. In cases of acts made criminal by a statute passed after the adop- tion of the constitution, no trial cither with or without a .lury has been used. But if an act is made a felony by statute and thereby becomes infamous in its character, as in the cases of the statutes to prevent abduction of females for purposes of prosti- tution, and to prevent seduction, section six secures to the person charged with its violation a trial by jury, after due presentment by a grand jury. Section two only requires a trial by jury in cases where it has been heretofore used. This cannot mean cases where it might or might not be required, for then no misdemeanor could be tried by the special sessions, as every person charged with any crime was liable to be indicted therefor by the grand jury, and then a trial by jury was the only one which could follow. The only practicable interpretation is to exclude from its operation those cases where it was competent to try by a court of special sessions, and where such trials had been in use. By the re- vissd laws of 1812, before cited, all offenses under the degree of grand larceny might be tried in those courts, and that law con- tinued in force until 1830,when the revised statutes limited the jurisdiction of courts of special sessions to certain specified cases. The constitution has been twice revised since 1813, and the provisions n the subject have been continued, substantially MONROE-DECEMBER, 1855. 659 The People v. Fisher. the same as they were before 1813. It would be singular, not to say absurd, if the organic law is to vary in its principles, and the objects to which it relates, at every change of legislation It should be interpreted in this respect in the same way as if there had been no revision since 1777. The fact that the same thing has been twice asserted since that time in the same sol- CJ emn manner, certainly ought not to change the interpretation justly applicable to it originally, but on the contrary, should confirm such interpretation. For the foregoing reasons, I am of the opinion that the decis- ion of the county judge was correct, and should be affirmed. Judgment affirmed. ("MONROE GENERAL TEBM, December 3, 1865. Johnson, Welles and Selden, Justice*. 1 APPEOII. JUDGE BARCULO. rPHE following biographical sketch of the late Judge BARCULO haa - been kindly furnished by JOHN THOMPSON, Esq. of the Pough- keepsie bar, an intimate friend of the deceased. It pays a feeling and appropriate tribute to the memory of one who adorned the bencn and graced the social circle. But few purer-minded or clearer headed men than Judge BAECULO ever occupied a judicial station. " Hon. SEWARD BARCULO, late justice of the supreme court for the second judicial district, died in the city of New York on the 20th day of June, 1854, after a painful and lingering illness, which he suffered with manly fortitude and Christian resignation. It is due alike to his memory, and the position which he held at the time of his decease, by the suffrages of the people, that some notice should be taken of his life and services. It is one of the consolations of a good man, th?*t his memory shall not die ; that the remembrance of his services and virtues shall be preserved, as an inheritance to his children, and. an incentive to others, who may be treading the arduous paths of public toil and trust. The sentiment which seeks its gratification in the desire of honest fame while we live, may legitimately be extended to posthumous re- nown. It is a premonition and prophecy that we are not all mortal, but that something survives and claims a consciousness of the charac- ter it leaves behind. Seward Barculo was the son of Rev. George Barculo, who, at the time of his son's birth, on the 22d day of September, 1308, was pas- tor of the two churches of Hopewell and New Hackensack, in Dutch- ess county. The child was an early favorite of his uncle Jacobus L. (661) 662 APPENDIX. Swartwout, with whom he spent much of his time, and who subse- quently adopted him and provided for his education. As a boy, he was remarkable for the active, though mischievous turn of his mind, while at the same time he was truthful and generous fearless and firm. He had a quick and retentive memory, and committed his lessons with rapidity and ease. He was designed for a farmer, and was sent to a district school, but his uncle observing that his leisure moments were spent in the study of algebra and mathematics, changed his plans in regard to him, and concluded to give him a liberal education. He commenced his academic course in December, 1826, at the age of 18, at the academy in Fishkill village, then under the charge of the Rev. Cornelius D. "Westbrook. His health, so robust while on the farm, failed the next spring, and he was obliged to travel, and study at home, reciting to Rev. E. Price, four miles distant, riding over twice a week. In the fall of 1827, he accompanied his early friend and teacher, "W. ~W. Andrews, to the home of his father in Cornwall, Conn, where he fitted for college and entered the freshman class at Yale, September, 1828. He remained there until August, 1830, and then left with many others, owing to some difficulty with the faculty. He however received an honorable discharge, and entered Rutger'a College, New Jersey, where he remained three months, and returned home, the studies at Yale being a year before those at Rutger's. The faculty were displeased at this step and expelled him. He went, back to college all unconscious of what had taken place in his absence, and refusing to make an apology, he did not graduate, and commenced the study of law in the office of S. Cleveland, Esq. in Poughkeepsie, where he continued, (except a year's absence at a law school) until he was admitted to the bar in the spring of 1834, in his 26th year. From the first moment when he commenced the study of the law, he determined to take no second rank in the profession, and therefore sought not only to perfect himself in the elements of legal science, so as to become an accurate and logical pleader, but to accomplish him- slf as a skillful advocate. He looked to this field as the highest ?l '.'.ere of legal effort, regarding the intellectual contests of the bar as displaying greater resources, and loftier qualities, mental and moral, than any other department of the profession, often remarking to his associates, ' Learn to speak argue debate. "Without this you car .never make yourself felt.' And his own practice was fully up to the spirit of this advice. Into every debating school, moot court or club, where mind comes into collision with mind, he went. Law, literature, .science, politics, social and national questions, were all propounded and APPENDIX. 663 discussed in these humble forums, with a force and ability not often surpassed upon a w'der arena, and in more pnblic councils. Nor -were these transient impulses ; but pursued diligently year by year, no matter how urgently other .engagements might press upon his time. He was not naturally a fluent or easy speaker. At this stage of his education, his manner was not graceful, nor his method rapid, and it was only after repeated and constant preparation, that he acquired that ease and dignity of manner, and that calm and logical accuracy of etatement and argument, which ultimately made his charges to a iury co clear and convincing. He had none of the usual folly of students in respect to the power of genius without diligence, but relied on his careful investigation of every subject that came before him. The bar of Dutchess county had just before this furnished some of the finest examples of judicial talent then in the state. The late Judge Emott had recently retired from the bench of the supreme court, full of years and honor, leaving an example to his successors worthy of all imita- tion, and which the Hon. C. H. Ruggles, appointed in his place, did not fail to emulate ; whose kind, impartial and generous administration, endeared him to every member of the bar with whom he came in contact. Elisha Williams, with his portly person, splendid flashing eye, and silvery hair gathered in a queue, and falling behind ; with his melo- dious and all-magical voice, had left the impress of what he said and did upon the hearts and minds of all who thronged to hear him, at almost every circuit then held in this county. Ambrose L. Jordan, then in the height of his early career, graceful in person and mind, with his ruddy complexion, rich black hair, and towering pile of forehead, ample and massive, beneath which flashed an intellect sharpened by contact with Elisha Williams and Martin Van Buren, and men of that character and stamp. These were vis- itors from Columbia. Thomas J. Oakley was an indigenous plant; sturdy as an oak, strong, simple, grand ; he passed along the line of ' his great argu- tr jnt,' convincing by the unanswerable chain of his compact logic, r/id breaking away like an inundating stream, through the amplitude of its quiet waves, those embankments of his adversary, which a more dashing onslaught might not have shaken. James Tallmadge, quick, nervous and keen, commanding the atten- tion of every eye by his lofty port ; his luxuriant hair, curling in masses over his temples; and his changing countenance, keeping play with every emotion of his soul; and hurling his keen invective right 664 APPENDIX. and left, overwhelming his antagonist with the power of his briliign! and rapid sallies. Philo Haggles, always sound, sensible and safe. Stephen Eno. a true specimen of the old school lawyer?, with kw?c ouckles. high topped boots, and green bag, thoroughly read in the principles of the common law, and who, before the days of Kent and Story's commentaries, perused all the ancient solid works of legal science, even Wood's Institutes and Fearne's Contingent Remainders, for the love of it, a practice continued to his dying day. Most of these men were just passing away ; like a moving constel- lation composed of many stars, they were sinking gradually and grace- fully out of view, for their day and mission was over. But the stu- dent caught the vision of their glory, and felt his heart beat quicker as he surveyed the eminences they had so nobly won. Those who remained were not unworthy to be set as examples. Henry Swift stood foremost among these. Acute, subtile, indefali gable ; his keen, analytical grasp held like the grip of death to hi: cause, and often brought it forth triumphant, when the spectator felt that the battle was lost. "With astonishing facility he mined through a world of business, and won laurels and wealth for himself and fam- ily. May he long live to enjoy them, and his green old age be as peaceful as his life has been full of professional conflicts. He was a generous and candid foe. Stephen Cleveland, with whom Judge Barculo commenced his pro- 'essional studies l tlie long headed,' as he was sometimes called whose meditative and comprehensive genius sought to fathom the phi- losophy of law ; who was never satisfied without reaching the ultimate reason ; who looked with a noble disdain upon all the caviling and trickery of a pettifogging practice, being honor's self personified. His tall form and bald crown were then prominent in all contests of the bar. Robert Wilkinson, then just succeeding his brother-in-law, T. J. Oakley, in his office, having moved back to his native county, and feeling for a secure footing among his competitors, and flashing out in occasional splendor before court and jury in his able presentation of the facts of his case; commanding admiration by the force, eloquent and earnestness of his argument. Charles Johnston, his pale countenance full of legal enthusiasm, and his industry making amends for his feeble constitution. Alas \ Of the above list, most have passed away ; they move iti spectral review before the eye of memory, and are foigotten by the generation now rushing into the places they filled. There were also APPENDIX. James Looker, N. P. Tallmadge, R D. Davis, Alex. Forbus, Maisc>n : and otliers then at the bar. Among the associates of Judge Barculo, or just behind him were C. "W. Swift, Wm. Wilkinson, John Thomp- son, H. D. Varick, "Wm. Eno, and at a later day James Emott, E. Q Eldridge, James II. "Weeks, J. B. Jewett, Gilbert Dean, and others, now at the bar in Dutchess county. Judge Barculo came to the bar under circumstances which, though generally deemed favorable, are in reality a disadvantage to a young man anxious to commence the trial of causes at nisi prius. He en- tered into partnership with Mr. Cleveland, who was then doing an extensive and lucrative business, whose clients were always anxious that he should personally try their causes. By the interest, however, which the junior partner took in cases, and the thorough manner of his preparing them for trial, he rapidly acquired confidence, and began to try his wing unaided by senior counsel, and although he was not re- markable for brilliancy or polish, yet he clung to his points, when taken, with great tenacity and success. The writer of this well remembers, at about this period, the case of The People v. Benschoten. who was indicted for a libel on one of our most worthy citizens, owing to the peculiar nature of the publication and the circumstances of the parties, great interest was excited the court room was crowded Judge Ruggles presiding at the oyer. The complainant, to insure a conviction, had secured the services of all the most eminent counsel then at the bar to assist the district attorney, Swift, Johnson, Wilkinson, Eno, an array crowding two tables, while at the corner of one of them sat BARCULO alone, with his client cow- ering at his side. While the jury were being empanneled he said not a word, nor moved a muscle, his hair thrown negligently over his brows, his eye resting on the paper in his hand, and his lip (his deci- sive feature) rigid and compressed. Hon. J. W. Brown and some others occupied the bar. At the proper moment he rose and moved to quash the whole indictment, consisting of three counts. The oppo- site counsel read and re read their copies, and smiled to each other. But as Barculo proceeded to take to pieces and examine separately every averment and innuendo, and apply the principles of criminal pleading to every part, they found he had unhorsed the whole array, and tried to answer him in vain : the indictment was quashed, and he left the court room a victor. About this period his partner was much in New York, and Barculo gradually assumed the business of the office, with credit to himself and satisfaction to his clients. He was pmployed with Mr. Swift and Judge Buell of Troy in the celebrated VOL. XX. 84 6(53 APPENDIX. case of Lansing and Russell, tried by Mr. Webster and Samuel Ste- vens at the Dutchess circuit. Et excited much interest on account of the eminence of the counsel and the importance of the questions in- volved. The testimony occupied about a week, and after its close, Stevens sat up all night to arrange his argument ; he occupied the court the whole morning, and so minute and thorough was his argu- ment that Mr. "Webster, after laying aside paper after paper which he had prepared for summing up to the jury, at last said to the writer, after throwing down his last sheet. ' Stevens lias left me nothing to say ; noth- ing /' But he did say something, and in manner that no other man could imitate or rival, gathering up all the little threads of his case and twisting them skillfully into a cable, that no weight of opposing logic could break. It was under the impression made by the great argument of Webster, that Barculo rose to address the jury. He was calm and self-possessed. Every thing was arranged with the nicest care, point after point was stated and fortified, until warming with his theme, and defiant of the crushing force of his legal adversa- ries, he exclaimed ' Gentlemen, the defendant relies upon his coun- sel and not upon his facts. In his extremity he has called upon the gods, and Jupiter Tonans is here! (pointing to Webster,) but if here, it is evident there is work to be done, which no power but that of Ju piter can accomplish ! I trust the times are past when law and justice are to rise or fall obedient to the Thunderer's nod.' Barculo at this time was in the habit of attending the general term of the supreme court, and taking cases from other attorneys to argue there. He was very sincere in his admiration of Judge Bronson, and thought him a model judge, and used to say frequently after his first, visit to Europe, at which time he frequented the English courts, that they had no judge there in law or equity equal to Bronson, and that his opinions were more highly valued in Westminster Hall than at home ! He was appointed first judge of the county court in Dutchess county, in April, 1845, by Gov. Wright, upon the unanimous recom- mendation of the Dutchess county bar, who without distinction of party acknowledged his peculiar fitness for that position and prevailed on him to accept it. That court immediately felt the benefit of his prompt application to business, its accumulated certiorari calendar was quickly cleared, and in the sessions and in the trial of civil actions he soon gave indications that he had fallen into his proper sphere. On the resignation of Judge Buggies in 1846, he was appointed circuit judge, by Gov. Wright. The commission as circuit judge had been previously sent to Hon. Selah B. Strong, now one of the justices of APPENDIX. 667 the 2d district, who not only declined the appointment, but magnani- mously recommended the bestowal of the office upon Judge Barculo, with whom he was then but slightly acquainted, but of whose fitness and capacity for that position he had formed a high estimate, and who has since expressed the gratification he felt in knowing how fully his anticipations were realized. He entered upon this new sphere of duty with modesty and diligence, yet with a firmness and dignity not usual for one of his age. He felt the delicacy and difficulty of occupying a seat recently filled by Ruggles and Emott, judges so widely known, and universally esteemed, and under whose administration the bar of the 2d district had witnessed high models of judicial excellence and learning. It is sufficient to say the robe worn by his predecessors was neither sullied nor disgraced on his shoulders. He soon devel- oped those qualities of mind, for which he afterwards became some- what remarkable, to wit, an almost intuitive insight into the heart of the case before him, and of the principle of law or equity, by which it was governed. No ingenious statement of counsel no round about presentation of the facts no sophistry of argument, could baf- fle the quick comprehension with which he sifted out at once the vital from the unimportant, and discriminated the marrow and core of the case from its inconsequential concomitants. The quickness and vigor of his mind in this respect was almost immediately put to the test in the case of the The People v. Bodine, which came on for trial at the Orange circuit in 1846, having been twice before tried in New York. Some of the most eminent counsel in the state were engaged in the case, and every point was contested with a zeal and pertinacity not often witnessed. David Graham, jr., acute and clear, though refining, plain in statement, fertile and rich in imagery and illustration, brought the wealth of his learning, and the vehemence of his zeal to the prison- er's defense. John W. Brown, now justice of the supreme' court, sat by his side. Bold, logical and enthusiastic, he seized with unerring grasp ,upon every point and principle, lifted them out of the elements that concealed them, and made them stand forth revealed and lumin- ous to every eye ; nothing escaped the logical grasp of his mind, or withstood the force of his vigorous onsets. James R. Whiting, versed in all the technology of criminal law, watching with astute and wakeful attention every opening in the joints of his adversary's har- ness, and ready to spring with every advantage on his foe. It was before such men, and surrounded by minds so vigorous and accomplished, and in a cause so momentous (a trial for life !) that he wag -jailed to preside for the first time, and so ably did he dispose of every APPENDIX. objection, so nicely did he discriminate between the specious and tie sound, the plausible and solid, so fairly did he present the case to th jury, that all parties were not only satisfied, but loud in the expres- sion of their praise. He justly merits what Shiel says of Bushs, ' He had the art of exposition and the elucidating quality, so impor- tant in the conduct of ordinary affairs ; the power of simplifying in the highest degree, he evolved with a surprising facility the most in tricate facts from the most embarrassing complication, and reduced in a moment a chaotic heap of incongruous materials into symmetry and order.' His most arduous duties at this time, lay in what he was .called to do as vice chancellor. The second district embraced a vast variety of chancery business, its commercial wealth and population were rapidly augmenting, and the vice chancellor's desk was piled up with case^, through which he toiled with diligence and dispatch. No long delay until the argument was forgotten ; no piles of dust accu mulating on the papers grown brown with age ; no ' Jarndyce v. Jam 'lyce/'to make the temples white, and the brain sick with the law's delay ; he decided the cause, and the parties were left, to acquiesce or appeal. When the new constitution of 1847 went into effect, he was elect- ed one of the justices of the supreme court for the 2d district, and drew the longest term. His associates were Justices McCoun, Strong and Morse. The code of practice was soon prepared and put into operation. It had the effect of extirpating from Judge Barculo'a mind the last remains of a radical and reforming spirit. His predilections were ultra democratic, and progressive, but when he saw the ark of the law, venerable and sacred, profaned by unholy fingers, and its time-honored principles and practices swept away, as he thought, by a reckless effort at change, he rebelled with the whole force of his mind against the desecration, and although he administer- ed the code fairly, so far as its conflicting provisions were at first susceptible of being understood, yet he expressed himself in no meas- ured terms upon the folly and impracticability of many of its provis- ions, and often alleged that the interests of the state demanded its entire repeal, more time being wasted by courts and counsel in learn- ing what the code meant than in trying the merits of the action; and it yet remains to be seen how far he was in. error. He was sometimes hasty in his expressions, when the code was under discussion. In the case of Alger v. Scovil, 6 How. Pr. Rep. 144, he says, 'It is in truth greatly to be regretted that those who assumed the responsi- bility of devising a remedy for the insufficiencies of the former svs APPENDIX. tern, did not more fully understand and appreciate the true cause and nature of the evils to be remedied, which arose mainly from the want of sufficient judicial force to dispose of the rapidly increasing business of a growing state and a commercial people. But in this age of pro- gress it not unfrequently happens that alteration is mistaken for refor- mation, and the public, feeling the necessity of some improvement, is too often contented with a mere change.' It was on the argument .>f this case, that D. D. Field, Esq. one of the codifiers, after contending for his view of the case, exclaimed, ' I know that was the intent of the legislature,' ' 1 beg your pardon,' said the judge, 'the legislature meant exactly what they have said and nothing else.' 'Well,' replied the counsel, 'I know the codifiers meant so.' 'Ah!' responded the judge, ' very likely ! They seem to have meant one thing and said another very often, if your argument is good.' It was on this same occasion that a wordy lawyer, bent on making a speech, was endeav- oring to show that his client could get nothing if an assignment was Leld good. ' May it please your honor ! ' continued the orator, ' the execution will be made out, following the solemn judgment of the court; the officer will take it in his hand, and proceed to the premises of the defendant ; he will cpen the door and gaze round upon empty shelves !' Here the judge's brow began to contract. ' Sir ! vacancy will open before him.' The judge broke in, ' Do you mean to say he will find nothing to satisfy the execution?' 'Yes, you- honor.' 'WellJ said the judge, ' why did'nt you say so half an hour ago /' He held his position of justice of the supreme court for six and a half years, under the new constitution : with what ability and success, his published opinions upon the various questions of practice, and of law and equity, in the volumes of Howard's Practice Reports, and Bar- bour's Supreme Court Reports will abundantly show. It is said by his judicial brethren, that no member of the court was more candid and severe in tho re-exarnination of his acts at circuit, than himself, when they came up for review, and that he had no pride of opinion to pre- vent him from seeing his own errors, and uniting promptly to correct, them. This trait is highly important so long as we retain the anom- aly in our judicial system of a judge reviewing himself! Judge Barculo had no negative characteristics ; none of the easy and facile non committalism upon questions of politics or law which has been sought for of late to make a man available, and which always indicates weakness and mediocrity. He came to his conclusions rap- idly, and was open an d fearless in their avowal, and this as well wheu 670 APPENDIX. upon the bench in the discharge of his official duties, as in the walks of private life He was a determined foe to the licentiousness of the press ; no man was more tenacious of its freedom ; no one lamented more sincerely, or would have punished more severe!}- its prostitution. The case of The People v. Wilkes, a few years ago, excited great at- tention. It was tried at the Dutchess oyer, before the judge, and em- ployed some of the best jury talent of the state. The libel was upon A. L. Jordan, then attorney general, and arose out of some transactions in New York. The attack was very abusive and violent. Jordan, with his young friend Calvin Mather, conducted the prosecution, and Daniel E. Sickles and J. T. Brady, the defense. The charge of the judge went very far in securing conviction ; it was logical, clear, pointed and pungent, tracing the distinction between liberty and licen- tiousness, the right to print, and the right to abuse public and private citizens, and pour over the heads of others the gall and wormwood of a malicious and depraved heart. From the tone of his charge, and the rather free expression of his opinion, the prisoner apprehended a se- vere sentence, and quietly 'stepped out,' while his adroit counsel were, ' all unconsciously' pressing some motion upon the attention of the judge. "Wilkes escaped, much to the judge's mortification, and domi- ciled for a time in New Jersey, and afterwards left for Europe, when the matter died away. The firmness and energy of his character were so marked and prominent as to seem almost like bluntness, to those who did not thoroughly know him. He was sometimes impatient that one should labor through so many words to reach a conclusion which stood out clear to his own mind. Yet the occasion was rare, that he did not listen patiently and fully to all that was said. I know not that he was ever accused of favoritism. It is true, that a jury could usually tell where his private opinions lay, and he would sometimes help the presentation of the case, where counsel were inef- ficient ; but the opinions formed were always upon the proof, and not from any feeling for the party. If any complaints were made, they we?r founded usually on the party's defeat, and fault finding with the judge in such cases is common enough everywhere ! Let me conclude this imperfect sketch by alluding to some of his private habits and characteristics, for these after all are the man. showing his tastes and feelings when official cares are laid aside, and he follows the bent of his own inclination. He was one of the most extensive readers I ever knew. The pub- lic library of this city consists of several thousand volumes, many of them rare and valuable books. The judge took great interest In this APPENDIX. 671 library, and in the selection of its volumes, and I very much d mbt at the time of his death, whether there was a readable book in it, of which he did not know the substance and scope. He usually had three or four of the volumes on his table, and seldom came from his residence, or left the city for home, without one or two were seen under his arm. He was the most varied and voracious reader among us, and yet I never knew him make a parade of what he did in this respect. He had a keen literary taste, and indulged in it in this manner, more than in committing any results of his reading or reflection to paper. He mastered the contents of a book with great facility, not by plod- ding through every line of it, but by taking hold upon its leading points and gathering out the substance of them ; an example not always safe to follow, but still very necessary to an extensive reader. He was highly indignant when Judge 's spiritual visions were published. He thought it an impeachment of the good sense of the judiciary, and wrote and delivered a lecture on the subject before the lyceum of this city, in which he characterized the whole affair as a ' miserable humbug and delusion unworthy of serious or scientific attention.' He spent considerable time and money in horticulture. He had about five acres of land highly cultivated, and his varieties of straw- berries, peaches, pears, &c. became quite celebrated in this region. He paid attention also to grape culture and the manufacture of wine, of which he left some fine varieties. He contributed some papers to the ' Horticulturist,' on the varieties and management of fruit. He visited Europe three times, as much to be on the ocean in hia passage as to observe for himself the manners and customs of foreign society, and the machinery of their social and political life : the first time in 1846; again in 1850 ; and the third and last time, the April previous to his decease. His fondness of the water amounted to a passion ; owning a sail boat, he would occasionally take his son Sidney a noble boy of quick in- telligence and manly character, now, alas ! sleeping by his side and, hoisting sail, pass with a favorable wind to New York, across the bay, and up into Shrewsbury river, where he usually passed the summer, principally in sailing and bathing. He was worse in London and Paris after his last voyage, but uncomplaining; always kind and considerate to those about him ; and would insist on going with hia young friends to places of interest, that their visit might not be marred by his afflictions. Finding himself no better, in June he turned his face homeward, and, growing feebler and feebler, he had one great 672 APPENDIX. wish, not to go down into the deep, but to die in his home, and sur rounded by those who were dear to him. But that home he never reached. His unconscious dust reposed a while in its now desolate halls, and ' Gently we laid him down to rest, With his own white roses on his breast.' He lies in the cemetery, which, shortly before his departure for Eu rope, he was most active in procuring, as if in prophetic anticipation that he would soon occupy it. His only son, Sidney, was killed by an accidental fall, eleven weeks afterwards and father and son rest together in hope. The same year he came to the bar he married Cornelia, daughter of John H. Tallnian, Esq: of New York city, who with three daughters, survives. Judge Barculo was a member and communicant of the Protestant Episcopal Church, and met a martyr's death with Christian heroism. He well merited the epitaph inscribed upon his monument : ' IN SOCIETY, AN ORNAMENT ; In the State, a Judge, fearless, dignified and incorruptible ; In habit, simple and pure. HE DIED YOUNG, BUT MATURE IN USEFULNESS AND FAME, Adorning Jurisprudence by the clearness of his decision*, And illustrating .Religion by THE STRENGTH OF HIS FAITH !' INDEX, A ACCOUNT. See INJUNCTION, 1. JOINDER OF CLAIMS, 2. ACTION. See BOARD OF SUPERVISORS. CREDITOR'S SUIT. AGREEMENT. 1. Construction and validity. 1 The plaintiffs agreed with the defend- ant that they would subscribe for, and become responsible to take fifty shares of the capital stock of the Troy and Boston Rail Road Company, of the estimated value of 85000, and to pay $500 upon the subscription. They fui ther agreed, after having paid the $'500, to assign and transfer to the defendant, by a proper instrument of conveyance, all the said stock, &c. The defendant, in consideration there- of, agreed that after the plaintiffs should have paid the sum of $500, and upon their executing and deliv- ering to him '' an assignment or trans- fer of all said stock," he would exe- cute and deliver to them a covenant to pay the remainder of the amount which would be due upon the sub- scription, and indemnify the plaintiffs and save them harmless against all claims. &c. arising in consequence of their liability incurred by becoming stockholders in the said company. The plaintiffs, in pursuance of this agreement, executed and tendered to the defendant an assignment of 50 shares of the capital stock of the rail road company, which they had pre- viously subscribed for, and on which they had paid $500, and also a power of attorney to transfer the stock on the books of the company. The by- laws of the company provided that no stock should be transferred on the books of the corporation until thirty per cen(on each share had been paid in, unless by consent of the board of directors. The plaintiffs made appli- cation for such consent, and it was refused. The defendant declined ac- cepting the assignment, on the ground that it was not a compliance with the terms of the agreement. The com- pany sued the plaintiffs to recover the balance of their subscription, and ob- tained a judgment for $4690.85, which the plaintiffs paid. At the time the assignment of the stock was tendered, and at the time of the trial; the stock was worth from 40 to 43 cents on the dollar. Heidi. That it was enough that the plaintiffs had executed an instrument which would transfer their interest in the stock to the defendant ; it being no part of their agreement that they should pro- cure a transfer of the stock upon tlie books of the company. . 2. That the instrument executed by the plaintiffs would enable the defendant, if he de- sired it, to have the transfer made, VOL. XX. 85 674 INDEX. upon the books of the corporation, upon complying with its by-laws. And that i f , was for him, and not the plaintiffs, to pay the residue of the 30 per cent required before a transfer upon the books could be obtained. 3. That having an instrument which would authorize him to procure such transfer to be made, upon making the requisite payment, it did not lie with the defendant to object that the transfer had not been actually made. 4. That the amount which the plain- tiffs had been compelled to pay, upon the judgment against them, as the consequence of the defendant's breach Df his agreement, was the proper measure of the plaintiff's recovery for such breach. Orr v. Bigelow, 21 By a written contract made between N." T. and S. P. T., the latter agreed to pay the former $'1300 in install- ments, and in consideration thereof N. T. agreed that S. P. T. might have the possession and use of a cer- tain canal boat, &c., unless default should be made in the payment of (.he said sum of $1300, or some part theieof, or unless S. P. T. should do or attempt to do, any of the acts by the; agreement prohibited; in either of which cases N. T. might take pos- session of the boat, &c. On the full paynibnt of the $1300, N. T. was to execute and deliver to S. P. T. a bill of sale of said boat, and put him in possession, S. P. T. agreed not to take or attempt to remove the boat out of the state, or transfer or attempt to transfer, the same without the con- sent of N. T., or to do any thing to prejudice his title. In case default should be made in the payment of the said sum of $1300 or any part there- of, N. T. was to have the right to take and sell the boat and apply the proceeds to pay the balance unpaid, paying over the surplus, if any, to S/P. T. It was further provided that nothing contained in the contract should be so construed as to give 5. P. T. any right or title to 'the boat, until such payment should be fully made ; except the right to pos- sess and use the same, in the manner and upon the conditions in such con- tract mentioned. Held that this in- strument was an executory contract for a sale of the boat on condition, and not a mortgage thereof; the parties intending, in icspect to the title, simply to agree for the sale and purchase of thu boat for the sum spe- cified ; the sale, and vesting of the title, to be upon the condition of pay- ment according to the agreement, and until payment the title to remain in N. T. JOHNSON, .T. dissented. Brewstsr v. Baker, 361 3. Held, further, that S. P. T. couM not acquire any title to the boat until he had paid the price ; and therefore could not transfer any title to a third person, so as to enable the latter to hold the boat as against N T. or his assignees and grantees. ib 4. There is a distinction between con- tracts which are immoral and crimi- nal and those that are merely void. Where the contract is simply void and not criminal, assistance may be given to a party to recover back his money, while the contract remains executory. Where money has been paid on an illegal contract which has been exe- cuted, and both parties are in pari delicto, neither of them can recover from the other the money so paid. Pepper v. Haight, 429 5. A distinction also exists where the action is in affirmance of the contract, and the object is to enforce its per- formance, and where the action pro- ceeds in disafrirmance of it. ib 6. Where both parties are equally guil- ty, as where they make a contract which is illegal, because contrary to the provisions of a statute, or the general principles of public policy, the rule potior est conditio defenden- tis applies. ib 1. The principle is that no court will lend its aid to a man upon an immor- al or illegal contract not for the sake of the defendant, equally in fault with the plaintiff, and in whose month it does not lie to say the con- tract is immoral or illegal but be- cause the court will not lend its aid to such a plaintiff'. ib 8. Where a mortgage contains a clause showing that a part of its consider- ation is the sale of certain premises in the possession of a third person, and held adversely by him, under a claim of title, the contract is directly in conflict with the statute prohibit- ing the sale of pretended titles. (2 A'. S. 601, () 6.) And both parties are guilty of a misdemeanor, and the contract is entirely void. ib INDEX. 675 P. An executory contract, for the sale and purchase of land, was made be- tween the plaintiff and defendant, by which the "latter was to have the oc- cupation and possession of the prem- ises, so lon as he should fulfill and comply with the stipulations of the contract. But if he .should make de- fault, then the agreement should be void, and the plaintiff was to be at liberty to immediately enter into the possession and occupancy of the premises, and was to be forever dis- charged from the agreement. Held that upon a breach of the contract by the defendant, the plaintiff had a right to enter, without notice, or demand of possession. Stone v. Spraguc, 509 2. Performance. 10. A contract for the sale and purchase of land provided that on the payment of $745. in five years, with annual interest, the defendant should be en- titled to a deed. On the day before the time for payment expired, thede- iendant tendered the plaintiff the amount, in specie, and requested a deed. The plaintiff replied that he would not receive any thing, nor give a deed ; placing his refusal upon the ground that he had not enjoyed such privileges, in the house, as he ought to have had, and saying that he and the defendant must settle, and he would not give any deed till they did. The parties then agreed to leave the question as to damages, to M. and AY., and the plaintiff agreed to see W. and ascertain when he could attend to the matter. An in- dorsement was then made upon the contract, signed by the plaintiff but not under seal, extending the time of payment to the 25th of April. On or "about that day the money was again offered to the plaintiff and a deed requested. He again refused to receive the money, or to convey ; saying he had not been able to get W. to attend to it : another indorsement was then made on the contract, ex- tending the time of payment to the 15th of May. A few days before the 15th of May the defendant again tendered the money to the plaintiff, if he would execute a deed ; which was refused. Held that the defend- ant had substantially complied with the terms of the agreement, so as to be entitled to a deed for the prem- ises ; and that, the defendant having been prevented from performing the contract, at the day, by the act of the plaintiff', the latter could not be al- lowed to take advantage of his own wrong, by insisting that the time for performing the agreement by the de- fendant had expired it 11. Heldalso, that proof that at the time of the last tender, and at other times, the plaintiff agreed by parol, with the defendant, not to take advantage of the expiration of the contract, say- ing that the lapse of a few days would not make any difference with him; and that the money, together with a deed, ready to be executed by the plaintiff, were tendered, on the 18th of May, three days after the expira- tion of the time, as last extended, was proper evidence, and ought to have been received. to 12. The time for performing a written contract under seal, may be enlarged by parol. ** 3. When complete and binding. 13. On the 30th of August, 1853, thede- fendants proposed to the plaintiffs, by letter, as follows: ''We will engage to furnish you a boat load of flour, the last of next week, same quality sent G. and M., at $4.76, free to boat." This proposition was imme- diately answered by the plaintiffs in these" words: "We will take the boat load flour, as per your proposi- tion in yours of the oOth inst." Held that this was a clear and unqualified acceptance,* by the plaintiffs, of the defendant's proposal, and that as soon as the plaintiffs' letter had gone be- yond their control the bargain was complete, and it became mutually obligatory upon the parties, and could not be rescinded by either, without the consent of the other. Clark v. Dales. 42 14. The letter of acceptance contained this inquiry: " Please say to us how we shall remit?" Held that this in- quiry did not qualify the acceptance of the defendant's proposition. ib 4. Parol extension. 15. The time for performing a written contract under seal, may be enlarged by parol. Stone v. tiprague, 509 1G. It is competent for parties, by a subsequent parol contract, to extend 676 INDEX. the time for the performance of the original agreement ; and this with- out any new consideration. Clark v. Dales, 42 5. Delivery and acceptance. 17. Delivery is essential to the validity of a deed or contract; and it is al- ways competent to show, by parol, that there has not been 2. delivery. Stephens v. Buffalo and New York City Rail Road Co. 332 18. There can be no delivery without an acceptance by the party who is to receive the deed. ib 10. Where, in an action of ejectment, the defendants claim the right to the possession, under a written contract for the sale and conveyance of the premis- es to them by the plaintiff, evidence is admissible in behalf of the plaintiff, to show that the alleged contract was never delivered, but was placed in the hands of the defendants' agent, rot as such agent, and not as a con- tract, but to be presented by him, in behalf of the plaintiff, to the defend- ants. as a proposition for their ac- ceptance or refusal, and to be void as a proposition, unless the defendants should give notice to the plaintiff of its acceptance, within a specified time; that such notice was not giv- en ; and that afterwards, and before any notice of acceptance, by the de- fendants, the plaintiff gave notice to the agent of the defendants, as such agent, that he withdrew the offer, ib 20. Under such circumstances, the pa- 1/c-r will not, bind the plaintiff, as a contract, until ihc defendants have accepted it ; and until acceptance, the plaintiff may withdraw or rescind it. ib 21. And a declaration by the plaintiff, to the defendants, that he will not be bound by the proposition, made at any time before acceptance, will ter- minate it. ib '2'2 Whore the execution of a paper by one party is completed by a delivery thereof to the a gent of the other par- ty, as a contract, parol evidence of conditions qualifying the delivery is not admissible ; and the party sign- : ng the paper will be bound, although : . is not signed by the other party, ib \ ALE. See EXCISK LAW. AMENDMENT. 1. Where one party ag7-ees to sell and deliver goods at a particular piuco, and the other agrees to receive and pay for them, an averment by the purchaser, of a readiness and willing- ness to receive and pay at that place, in case he sues, for a non-delivery, is indispensably necessary in the com- plaint. But the omission to make it is a defect which is cured by a ver- dict ; and an amendment of the com- plaint is admissible and appropriate, under such circumstances, for the pur- pose of securing certainty and harmo- ny in the record ; and is sanctioned by 173 of the code. Clark v. Dales, 42 2. The amendment may be ordered at a general term, and without formal notice of motion for that purpose, when the object of the amendment is only to conform the complaint to the facts found, and when the record furnishes the only grounds for and against the same. ib 3. Where a complaint and answer are both very general in point of form, but neither party demurs, and botli have gone to trial with a full understand- ing of their rights, and neither party has been taken by surprise by the pleading of his adversary, and a full and fair investigation has been had, upon the merits, such an amendment will be allowed as may be necessary to conform i!:c complaint to the facts proved, and as will do substantial jus- tice to both parties. Hunter v. The Hudson Rlcer Iron and Machine Co. 493 APPEAL. . Where an objection to the competen- cy of a witness examined before a surrogate, i.s not raised there, it will be deemed to have been waived, and will be of no a vail on appeal. Mc- Donough v. Loughlin, 2o8 An omission to challenge a juror if a waiver of all objections to him ; and this whether there be an appear INDE. 677 ance, or not. Consequently a party to a suit before a justice, who fails to appear, on the trial, cannot raise the objection, on appeal from the judgment, that some of the jurors who tried the cause were not compe- tent, as such, for want of the "requi- site property qualification. Clark v. Van Vrancken, 278 3. Where an objection to testimony is taken on the trial, on a specific ground, and in such a manner as to induce the opposite party to believe that such is the sole ground, the party objecting will not be allowed, on ap- peal, to place his objection upon a different ground, and one which, if it had been urged at the trial, might have been obviated. Briggs v. Smith, 409 1. Objections may l>e urged, on an argu- ment at a general term, which were not raised on the trial, if they are such as could not have been obviated at the trial. Pepper v. Haight, 429 ARBITRATION AND AWARD. 1. Agreement to submit ; submission. 1. An agreement for the submission of matters in difference to arbitration, followed by the arbitrators entering upon their duties the arbitration being still pending and undetermined constitutes no defense or legal obsta- cle, in abatement or in bar. to an ac- tion for the same matters, commenced after the making of the agreement. Smith v. Cowpton, 262 2. Such an agreement is a mere author- ity, revocable by either party, at any time before the case is finally submit- ted to the arbitrators for decision, subject only to liability for damages, ib 8. Where a submission was in writing, under seal, to hear the evidence in reference to a certain lease, " to the end that all matters in controversy in that behalf, between the parties, should be finally concluded" &c., and a subsequent agreement, between the parties recited that they had agreed " to submit their matters in controversy" to arbitration ; //c/rfthat it was the intention of the parties that the arbitrators should pass upon all matters iu reference to the lease ; whether all the rent had become due or not ; so as to end all controversy be- tween them which had arisen, or might arise, out of that instrument; and that consequently the award was not void although it embraced the rent not then due. and damages sub- sequently to accrue, under the lease. French v. New, 482 4. Where a submission purported to bo made pursuant to the provisions of the statute for determining controver- sies by arbitration, but it contained no clause agreeing that a judgment should be entered in a summary man- ner upon the award to lie made ; Held that this was not a submission under the statute. (1 R. S. 541.) ib 2. Parol evidence as to proceedings. 5. Mistakes or errors of arbitrators, in respect to the matters submitted to them, cannot be inquired into, or cor- rected, in a court of law. Parol evi- dence cannot be received, therefore, to show such mistakes or errors. Briggs v. Smith, 409 6. But parol evidence to show that the arbitrators exceeded their powers is admissible in a court of law; and if that fact is proved, it will render the award void. ib 7. Thus where a submission was gene- ral, of all matters whatever between the parties; HELD that evidence to show that the arbitrators took into consideration* matters not submitted to them, viz: matters between one of the parties and a third person, w;is admissible. ti> 8. Where, in an action upon an award the defendant offered to prove by one of the arbitrators, " that the arbi- trators took into consideration mat- tens not submitted to them ; also that they included in the award about 16 perch of stone as the property of the defendant, and did not include it in the written award;" Held that this was not to be construed as one entire offer and therefore inadmissible as embracing a matter as to which no evidence could be received, viz : to show the mistake ; but that the proj>- osition was to be treated as consti- tuting two distinct offers, one of which was proper. t4 9. Where there is not enough on the face of an award to show that the arbi INDEX. 678 tratois did not go beyond the submis- 1 sion, parol evidence may be resorted to. And the arbitrators, or either of them, are competent witnesses to prove that matters were induded in the award which were not contained in the submission ; in a case where no bad faith on the part of the arbitrators is alleged. ib 10. Where the submission was to hear the evidence in reference to a certain lease, <: to the end that all mat- ters in controversy in that behalf, be- tween the parties, should be finally concluded" &c., it was held that pa- rol evidence that the rent yet to be- come due, and other claims, were taken into consideration by the arbi- trators, was proper for the purpose of showing whether the arbitrators took into consideration matters beyond the submission, or not. French v. New, 481 3. Validity of award. 11. Where that portion of an award which is void for not being within the submission, is so connected with the rest of the award that it is impossible to distinguish between the valid and the invalid portions, the whole award is void. Briggs v. Smith, 409 12. Parties, after having by their bonds of submission to arbitration, required the award to be in u -"i*- ! ng, and sub- scribed by the arbitrators, may waive that requirement, by parol, and re- ceive a verbal award, M'hich will be binding on both. French v. New, 481 13. Thus where a submission required the award to be made in writing un- der the hands of the arbitrators, sub- scribed by them or any two of them, and attested by a subscribing witness, but before the arbitrators made any award, the parties said to them they had substituted other writings which they had drawn up and executed, under seal, in place of a formal award in writing, and that all they, the par- ties, wanted to know, was how much was awarded, and they could fix the amount, in the instrument, as they had agreed; and that they did not want the award in writing, but wish- ed the arbitrators to award verbally ; IT WAS HKLIJ that the parties had waived that part of the condition of the submission bond which required the award to be in writing. ib 14. Such an agreement foi a parol award operates as a new sul mission : and the parties are estopped from saying that the parol award, made in pursu- ance of their directions, is void. ib 15. Th'e principle that he who pre- vents a thing being done, shall not avail himself of the non-performance he has occasioned, applies to such a case. ib 16. Where there is a submission, by writing, under seal, of all matters re- lating to a lease, to arbitration, and a subsequently executed parol agree- ment between the parties, consenting that the arbitrators may make a ver- bal award, an award by parol will discharge the lease. ib 17 Proof that, previous to a submission of matters respecting a lease, the rent due thereon &c., one of the arbitrators counseled with the defendant, and told him his rent was too high, will not show such corruption, partiality or gross misbehavior as would inval- idate the award at law ; and is there- fore inadmissible. ib 18. Such evidence cannot be given by the arbitrator himself; on the ground that it would go to impeach his award. ii ASSESSMENT. See MUTUAL LIFE INS. COMPANIES. ASSIGNMENT. See DEBTOR AND CREDITOR. ASSUMPSIT. 1. If a person, without compulsion of law, or Iciral obligation, pays tho debt of another without a previous request, the debtor is not liable for the amount. Ingraham v. Gilbert, 151 2. A pecuniary benefit, voluntarily conferred by the plaintiff and adopt- ed by the defendant, is not such a consideration as will support an ac- tion of assumpsit, on a subsequent implied promise. it INDEX. ATTORNEY. I In an action for a partition, after the plaintiff's attorney had become en- titled to certain fees for liis services, and to over $100 for disbursements, the plaintiffs assigned their shares in the property to C. and wife, and one of the plaintiffs assigned also all costs and allowances that he might have, by the suit. The as- signees claimed the right to substi- tute a new attornej', and continue the suit, without paying the former attorney any thing. The court refus- ed to allow the substitution until the disbursements were paid. Subse- quently, the property being sold, and the plaintiff's costs brought into court, it was held that the as- signment did not transfer any costs or allowances to which the attorney was entitled, but only those belong- ing to the assignor. Creighton v. Ingersoll, 541 2. It was further held that when C. and wife took an assignment of the action as it stood, and the benefit of the progress then made in it, they took it with the burthens then incident to it, one of which was the liability to have the costs then in- curred deducted from the recovery by them. The amount of costs due to the former attorney, as adjusted previous to the substitution, was -therefore directed to be paid to him, before paying over the fund in court to the plaintiff* ib B BAIL. Set PROHIBITORY LIQ.UOR LAW. 8, 9, 10, 11, 12. BILL OF EXCEPTIONS. See CRIMINAL LAW. BOARD OF SUPERVISORS. . Even in cases where no discretion is vested in a board of supervisors, in relation to an account presented to them, and a clear legal duty rests upon the r, to cause the whole amount of the account to be levied, collected and paid, as a county charge, which they refuse to perform, an action will not lie, against the su- pervisors. The only remedy of tlio creditor is by an application to the court for a mandamus to compel them to perform that duty. Boi/ce v. The Board of Supervisors of Oayuga county, 294 2. To warrant a suit against a board of supervisors, as representing the county, there must be some duty of the county, and the case must he such that an action, founded upon that duty, is the appropriate rem- edy, ib 3. Where the duty relied upon 5 a duty, not of the county, but of tho board of supervisors, no action will lie. ib See MUTUAL LIFE INS. COMPANIES. C CANAL COMMISSIONERS. 1. The question, as to the liability of a canal commissioner, for a neglect of duty, depends in each case, upon the character of the duty which the stat- ute has imposed upon him. If it is imperative, and specific, the commis- sioner is responsible to any person who has sustained an injury in conse- quence of his neglect of duty. Grif- fith v. f'ollett, ~ 620 2. But if the duty is to be discharged according to the -disc ret ion and judg- ment of the commissioner, he cannot be held iu.vi:isiWe to a party who has sustained an injury either by the manner in which he discharges it, or by a neglect to do any particulai act falling within the general scopu of his duties. ib 3. A canal commissioner is to examine the works committed to his charge, and from such examination he is to ascertain and determine, that is. de- cide as to the necessity for any par- ticular repair, and act accordingly, ib 4. It is not his duty to make repairs when, or as, he may he requested or advised by others. But as to tho 680 INDEX. necessity of such repairs, their nature and extent, and the time when they are to be made, he is to be guided by his own judgment. And his judg- ment is conclusive, upon the ques- tion, and cannot be called in question collaterally, in an action brought by a party who has sustained an injury by the commissioner's neglect to act, in any particular case. ib 6. There is, however, a class of cases in relation to which the duty of the commissioner is, in its nature, abso- lute and certain. Thus, when the navigation of the canal is interrupt- ed or impeded by any obstruction of the channel, or by the destruction of any bank or structure, the necessity for immediate repairs is apparent, and the duty of the commissioner to make them is imperative. ib 6. lie has no discretion to exercise, in such a case, as to the necessity of repairing, but is bound to make the repairs without delay ; and for a neg- lect to make them, after notice of the facts showing their necessity, the commissioner is liable to any party injured by the neglect. ib See JOINDER OF CLAIMS, 3, 4. CHATTEL MORTGAGE. 1. Before a chattel mortgage can be upheld as a valid security, where there has been no actual and con- tinued change of possession, the party asserting its validity must es- tablish, affirmatively, two proposi- tions; first, that the transaction was bona fide ; and, secondly, that there was no intention to defraud credit- ors or purchasers. Groat v. Rees, 26 2. It is not enough to show that the mortgage was given for a good and valid consideration. It is equally necessary to prove the absence of a fraudulent intent. ib 3. But, where it is admitted that the mortgage was given for a good and valid consideration, it is proper to submit the question to the jury whether it was not also executed without any intent to hinder or de- lay creditors. ib i. And if there is no evidence that the mortgagor was indebted to any other person than the mortgagee, and there is nothing in the case to show that the mortgage was exe- cuted for any other purpose than to secure a 'bona fide debt, the jury will be justified in finding in favor of the validity of the mortgage, ib 5. A chattel mortgage ca.n only ope- rate upon property in actual exist- ence at the time of its execution. It cannot be given on the future products of land. Milliman v. Neher, 37 6. Thus where a lease was executed, in March, 1852, between the plain- tiff and M., of a farm, for one year from the 1st of April then next, at a specified rent, and it was stipulated that the plaintiff should have a " lien upon the crops as security for said rent," and that M. should " market the same ;" Held that a person who had purchased from M. corn, raised upon the farm, with knowledge of the plaintiff's claim to a lien thereon, could hold the same, as against the plaintiff. ib 7. A chattel mortgage was executed by P. in the usual form, to K., transfer- ring to the mortgagee; the legal title to the property. By the first clause of the condition this title was made defeasible upon the payment of the mortgage debt according to the terms of the condition. By another clause it was provided that if default should be made in such payment, or if K. should .at any time deem himself in danger of losing his debt by delaying the collection thereof until it became due, he might take possession of the property at any time, before or after the time limited for (he payment of such debt, and sell the same, or so much thereof as should be necessary to satisfy the debt, &c. Held that this latter clause did not, by implica- tion, give to the mortgagor the right to retain the possession of the prop- erty until the happening of the con- tingency ; but that the power given to the mortgagee, by that stipulation, was intended as a cumulative remedy, merely, and did not qualify his right, as the legal owner, to the possession of the property at all times, before the performance of the condition which was to defeat his title Kick v. Milk, GIG INDEX. 681 8. It was accordingly held, further, that an assignee of the mortgage had a right to take possession of the property and to retain it, as against the mortgagor, and all claim- ing under him, before the mortgage debt became due and payable, ib COMMON SCHOOLS. 1. The renewal of a warrant issued for the collection of a school tax, is equivalent to issuing a new warrant. And if the renewal is signed by only two of the trustees of the school district, the third refusing to sign it, the latter is not liable for any act done under the warrant. Thomas v. Clapp, 1G5 2. If a warrant is fair on its face, it affords a complete protection to the collector; itnd this even though he has knowledge of facts rendering the process void. The warrant is sufficient if signed- by two of the trustees. ib 3. A warrant is not rendered void by a direction to the collector to collect the amount of the tax, together with jive per cent for his fees ; al- though the act of 1849 gives the collector only one per cent on all sums paid in within two weeks, ib 4. The statute does not prescribe a new form for the warrant, but limits the action of the collector under it. ib 5. Where a tax is levied and assessed by all the trustees, and in perform- ing that duty they act together and all concur, it is unimportant wheth- er all are present, or not, when the warrant is signed ; the signing of the warrant being but a ministerial duty. ib <>. The statute requiring the tax to be assessed and the tax list therefor to be made out by the trustees and a warrant attached thereto, within thirty days after the district meet- ing at which the tax was voted, is merely directory, as to time. It be- ing for the benefit of the public, those acts may be done after the time specified in the statute has tlapsed. H VOL. XX, 86 CONDITION. 1. No precise technical words are TO quired, to make a condition preceden* or subsequent. The construction must always be founded on the inten- tion of the parties. Under/till v. The Saratoga and Washington Rail Road Co. 455 2. If the act or condition required does not necessarily precede the vesting of the estate, but may accompany or follow it, and if the act may be as well done after as before the vesting of the estate, or if from the nature of the act to be performed and the time required for its performance, it is ev- idently the intention of the parties that the estnte shall vest, and the grantee perform the act, alter taking possession, then the condition is sub- sequent, ib 3. Where a grant was upon the condi- tion that the grantees should build and maintain a water tight enbank- ment or dam over a certain brook crossing the land conveyed, as part of their line of road, and tlmt the said embankment or dam, with the flood-gates and sluice-ways therein, might be used for hydraulic purposes, by the grantors, their heirs and as- signs; and it was covenanted that the grantees should not be liable for any damages which the grantors should sustain in case of a break in the dam or an overflow thereof, un- less the same should happen through the gross negligence or willful mis- feasance of the grantees, but that the grantees should repair all dam- ages which the dam or embankment should at any time sustain, forthwith ; it was held that the condition was subsequent, and that the etlect of the deed was to vest the fee simple of the estate in the grantees, subject to be defeated by a neglect or refusal to perform the condition. ib 4. Held also, that the effect of an omis- sion to perform the condition, by the grantees, was to give the grantors or in case of their death, their heirs, the right of entry : but that no action could be maintained by an assignee of the grantors, to recover the land ; whether the breach was before or af- ter the assignment. ?0 5. Held further, that by a general as- signment, made by the grantors, to 682 INDEX. a tli i id person, of all their property, rights, cluinis and demands, the con- dition was gone, and the grantees obtained nn absolute estate, and were discharged from the condition, and all claim for damages for a breach of it. ib 6. And held, that the condition could not be construed to be a covenant, so as to enable the assignee of the grantors to maintain an action to re- cover damages for a breach thereof, ib 7. Nor can the assignee, in such a case, maintain an action for damages, on the ground of an implied covenant. ib 8. A condition in a deed, when explicit words are used, creating such condi- tion, will not be construed into a covenant, except to avoid a forfeit- ure, ib CONSIGNOR AND CONSIGNEE. 1. Where goods are consigned to joint factors tin- consignees are in the na- ture of co-obligors, and each is liable for the whole. Briggs v. Vose, 477 2 And although, upon a dissolution of the partnership, one retires, and the other sells the goods and receives the avails, yet an action lies against both for not fulfilling their duty in selling and accounting; and they may both be held liable for not ac- counting, ib CONSTITUTIONAL LAW. 1 The act of April 8, 1851, relating to life insurance companies, was not a violation of the article of the consti- tution of the United States by which the citizens of each state are enti- tled to all the privileges and immu- nities of citizens in the several states. The People v. Imlay, 68 2. An incorporated company is not a citizen, within the meaning of that section. (Const, art. I, sec. 1.) ib 3 The charter of the United States Trust Company of New York is not unconstitutional. The United States Trust Company v. Brady, 11-9 4 The constitution gives the legisla- ture the power, in its discretion, to create corporations other than banks, by special charter. And when that discretion has been exorcised, the courts cannot review the action of the legislature. ib See PROHIBITORY LIQUOR LAW. CORPORATION. 1. A plaintiff admits the corporate ex- istence of a corporation, by suing it by its corporate name. And this admission will not be overcome by his alleging, in the complaint, facts which, if true, would go to show that the defendant had failed to comply with such terms as by the charter were conditions precedent to its organization as a corporate body. The People, ex rel. Marshall, v. The Ravenswood, fyc. Turnpike and Bridge Co. 518 2. In such a case-the latter allegations in the complaint may be disregard- ed, as being irrelevant and imperti- nent; inasmuch as a plain tiff* cannot be permitted to treat the defendant as a corporation in fact, lor the pur- pose of suing it, and then insist that it never performed those acts, with- out performing which it could not have acquired existence. ib 3. Where the complaint, in an actior against a corporation, alleged that the defendant h:ul violated its char ter, and also that it had omitted to do certain things claimed to be es- sential to give it a legal, corporate existence, and prayed that the de- fendant might be excluded from tho franchises claimed by it, and that the corporation might be dissolved; Held, on general demurrer to the whole complaint, that the complaint, as a whole, was good ; it containing but one subject matter, viz : the right of the defendant to continue to exercise certain franchises. CLEUKK, J. dissented. ib COSTS. 1. A claim of possession is not a claim of title to land. In its mo>t compre- hensive sense, the term title em IKDEX 683 jraces the possession, but not in the sense in which it is used in the sec- tion of the code giving costs to the plaintiff in actions for the recovery of real property, or where a claim of title to real property arises on the pleadings, or comes in question. As there used it is nothing less than an assertion of a right of possession. Ratlibone v. McConnell, 311 2. Where the object of an action was to recover damages, sustained in consequence of an act done by the defendants above the plaintiff's land, by which the water of a wa- ter-course, passing over such land, was diverted and the plaintiff de- prived of the use of it, the defend- ants alleged as a defense, that the act was done with the leave, license and permission of the plaintiff, it was held, that the answer was to be viewed as setting up a mere license, and that under this issue the title to the land did not come in ques- tion, so as to entitle the plaintiff to costs under the 304th section of the code. ib See ATTORNEY. COUNTER-CLAIM. In an action against several defend- ants who are jointly and severally liable, either of them may set off promissory notes executed by the plaintiff, or may avail himself there- of by way of counter-claim. Briggs v. Vose, 477 COURTS OF SPECIAL SESSIONS. A court of special sessions is one of limited jurisdiction, deriving all its power from the statute. It can on- ly acquire jurisdiction over the per- son of the accused upon his request to be tried before it, or his omission, for 24 hours after being required to do so, to give bail for his appearance according to law. The People v. Berberrich, 224 See PROHIBITORY LIQ.UOR L*w, 8 to 15. COVENANT. 1. Where the condition of a mortgage, given for the purchase money, stated that the title to a portion of the mort- gaged premises was in dispute, the land being claimed, by a third person, and that the mortgagee had agreed to give a good title to stiHi disputed part, and stipulated that if he failed to do so, before or at the time the first pay- ment became due on the mortgage, the mortgagor should have the right to keep back from the mortgage mo- neys whatever sums he should have to pay to obtain a good title and posses- sion of the disputed part of the prem- ises; Held that the covenant to give a good title was not a condition pre- cedent to the payment of the mort- gage. Pepper v. Haight, 429 2. When mutual covenants go to the whole consideration on both sides, they are mutual conditions, the one precedent to the other ; but when the covenants go to only a part of the consideration, then a remedy lies on the covenant, to recover damages for a breach of it, but it is not a condition precedent. ib 3. Where a plaintiff, in his complaint and on the trial, claims to recover land by way of forfeiture, on the ground of a failrrc to perform a con- dition on which it was granted, he will be considered as waiving any claim for damage? for breach cf a covenant contained in the grant. Ho cannot be allowed to pursue both remedies at the same time, and in the same action. Underhill v. The Saratoga and Washington Rail Road Co. 455 CREDITOR'S SUIT. 1. An action will lie, in aid of a suit at law, to reach property and effects in the hands of parties who, it is alleged, have fraudulently received the same from the judgment debt- ors, and unjustly assert a claim thereto, against the plaintiff's judg- ment and execution. Hammond v. The Hudson River Iron and Ma- chine Co., 378 2. The remedy, where a creditor's bill was proper previous to the code, is still preserved, in the form of an ac- tion in the supreme court. ib 3. The judgment creditor may com- mence the action for his own bene- fit, or in behalf of himself and otberf 684 INDEX. in the same Mti.ation with himself who may choose to come in and contribute to the expenses of the suit. The rule has not been changed by the code. ib 4. It is not a subject of demurrer that all the creditors of the judgment debtors are not joined as plaintiffs. ib 5. A judgment creditor, who has ex- hausted his remedy at law, may ob- tain relief against his debtor's prop- erty in the hands of a fraudulent assignee, by a direct action against the debtor and the assignee, to reach the property thus held under the void assignment. ib 6. Where, in an action brought by a judgment creditor, against the judg- ment debtor, in aid of the suit at law, the complaint alleges that property and money received by third per- sons, under and \>y virtue of a fraudulent assignment and judg- ment, was the property of the judg- ment debtor, such third persons are necessary parties to the action, ib 7. And where, independent of any claim such third persons might set up as owners of the property sought to be reached by the action, they were charged by clear, distinct and specific allegations in the complaint, . with fraudulent and unlawful acts, and with efforts to hinder and de- lay the plaintiffs in the collection of their debt; Held, on demurrer, that this was enough to render them proper parties to the action. ib 8 Where the subject of an action is the property of a judgment debtor, and the cause or ground of action is an impediment tin-own in the way of collecting the plaintiff's judg- ment, and the object of the action is to remove the impediment all other results being merely incidental, such as accounting for and apply- ing the avails of the property which may be reached and the defend- ants are charged jointly with the commission of the fraudulent acts, and they are alike concerned in the judgment, or thing to be recovered, although their interests, as to sepa- rate parts, are distinct, the com- plaint will be held to contain but one cause of action ib CRIMINAL LAW. The right to a bill of exceptions, K a criminal case, is given by statute; and its office is to bring up for re- view questions of law made and de- cided on the trial. Wynhamer v. The People. 557 The statute which gives the right, limits it to exceptions taken on the trial of the main issue. It is not ex- tended to such as are taken on the trial of preliminary or collateral ques- tions, such as motions to quash the indictment for irregularity, challen- ges to the array, &c. ib CUSTOM. 1. In an action upon a memorandum acknowledging the receipt of a quantity of corn in store, " on freight," the defendant offered to prove that it was the custom, at the landing where the corn was delivered, and had been for forty years, to pay for grain left on freight after the owner had ordered it to be freighted, and not before; and that this custom was known to the plaintiff, and that he himself had been in the habit, for many years, of leaving grain at that place, to be freighted, upon the same terms. Held that the evidence should have been received; and for its rejection the judgment was reversed. Out- water v. Nelson, 29 2. Held also, that the plaintiff could not recover, upon such memoran- dum, without proving that the de- fendant had shipped the corn, or that he had been called upon for payment ib D DAMAGES. 1. Where a contract is made for the sale and delivery of goods at a f'l- ture day, and the purchaser is ready and willing to perform on his part, on the day and at the place appoint- ed, but the vendor refuses to deliv- er the goods, the true measure of damages, in an action by the pur- chaser, is the difference between the contract price and the value of the goods agreed to be delivered, on that day, with interest. Clark v. Dales, 42 2. Where, in an action against a rail road company to recover damages for a personal injury occasioned by a collision, there was evidence show- ing that the plaintiff had been inca- pacitated by the injury from labor most of the time for nearly two years, and there was also testimony tending to prove that the disability would be permanent, or at least long continued ; Held, that a ver- dict of $4,500 was not so excessive as to indicate partiality, prejudice, passion, or any thing improper, in the jury. Curtiss v. The Rochester and Syracuse Rail Road Co. 283 See AGREEEMENT, 1. INSURANCE, 18. RAIL ROAD COMPANIES, 1 to 6. TRESPASS, 3, 4. DEBTOR AND CREDITOR. 1. Where assignees, under an assign- ment made for the benefit of cred- itors, reconvey to the assignor the real estate embraced in such assign- ment, without having paid and sat- isfied the debts for the payment of which the trust estate was cre- ated, such reconveyance is abso- lutely void, at least as to all credit- ors whose debts were provided for in the assignment, and which re- mained unpaid at the date of the reconveyance. Briggs v. Palmer, 392 2 And in a contest between a person claiming title under artd in conso- nance with the trusts created by the assignment, and an incumbran- cer of the title attempted to be conveyed by the trustees in contra- vention of such trusts, the validity of the mortgage will be in no way helped by the fact that the mort- gagees, at the time of taking it, had no actual notice of the exist- ence of a claim against the trust estate, or of the assignment, and reconveyance. ib 3. The assignment, and the reconvey- ance, are matters of record, which the statute makes sufficient notice to all subsequent purchasers and in- ';urnbrano ^rs. And such purchas- 685 ers or ineumbrancers, having con- structive notice of the assignment, are put upon inquiry as to all claims and rights under it. ib 4. Trustees cannot, by a recital in a reconveyance of the assigned prop- erty, contrary to the fact, affect the interest of the cestuis que trust. Therefore a recital that the debts of the assignor have all been paid, will be of no avail. ib 5. After a debtor has assigned his real estate in trust for the benefit of creditors, he, having no title, can- not create an incumbrance upon the estate. A mortgage executed by him will therefore, at most, only operate as an assignment or equi- table mortgage of his residuary in- terest, after the trust shall have been fully executed. Under this, the mortgagee may, it seems, pay a debt existing against the trust es- tate, before a sale of the trust property to pay the debt, and a transfer of the title. ib 6. But after the title has passed to a bona fide purchaser at a judicial sale ordered for the purpose of sat- isfying a previous debt of the as- signor, there can be no redemption by any one standing in the position of the assignor, or claiming under him subsequent to the creation of the trust estate. ib DEED. 1. A certificate of acknowledgment of the execution of a deed, by a mar- ried woman, stating that on an ex- amination before the officer "sepa- rate and apart from her husband" she acknowledged the execution of the same " without fear or compul- sion from him," is a sufficient com- pliance with the statute requiring the officer to certify, upon an ac- knowledgment by a feme covert, that on "a private examination, apart from her husband, she exe- cuted the conveyance freely and without any fear or compulsion of her husband." Dennis v. Tarpen- ny, 371 2. A deed of conveyance, and a bond and mortgage executed by the gran- tee, to secure the payment of th 686 INDEX. purchase money, and bearing even date with the deed, form parts of one transaction, and are to he construed together, as one instrument. Pepper \.~Haight, 429 See AGREEMENT, 10, 11. DEBTOR AND CREDITOR, 1, 2, 4. E EJECTMENT. 1. Where an owner of land conveys the same to another, excepting the por- tions included in the highway, he may maintain an action of ejectment against the grantee, for encroach- ments upon the highway, or for an exclusive occupation of it, by the latter. Etz v. Daily, 32 iJ. In an action of ejectment the plain- tilf is bound to show title in himself at the commencement of the action. Layman v. Whiting, 559 3. If the title upon which he relies is founded upon the foreclosure of a mortgage, by advertisement under the statute, proof of a regular and com- plete foreclosure is essential to the va- lidity of that title. ib 4. If, in an action of ejectment, by the purchaser of premises sold under a statute foreclosure, it appears that the affidavit of service of the notice of sale, upon the mortgagor, was not made until after the commencement of the action, the plaintiff will fail to show title in himself at the time the suit was commenced, and must therefore be nonsuited. ib 5. The making and recording of an affi- davit of service, after the commence- ment of the action, will not A'est a title in the purchaser. by relation, as of a time previom, so as to enable him to recover. ib 6. Parol evidence of the service of the notice of sale, upon the mortgagor, is admissible-; but it will not dispense with the production of the affidavit spooilied in the statute. ib ESTOPPEL. See WILL 1. EVIDENCE. 1. A justice of the peace cannot be permitted to give parol evidence of what took place before him, it seems. But if his docket is afterwards given in evidence the error will be cured. Smith v. Compton, 262 2. Parol evidence is inadmissible to contradict the docket of a justice, ib 3. A consent of the parties, in pres- ence of the justice, that a cause shall be submitted to the justice conditionally, with a reservation to the plaintiff of liberty to withdraw the suit, IN u.ndingon the parties, and if entered by the justice in his dock- et, it forms a part thereof, and is no more subject to be contradicted than any other part of the docket, ib 4. No proof can be offered, of facts not put in issue by the pleadings. New York Central Ins. Co. v. The Na- tional Protection Ins. Co. 468 See SHIPS AND SHIPPING, 1. EXCISE LAW. The sale of ale in less quantities than five gallons without having a license therefor, granted according to the provisions of title 9, chapter 20. of the first part of the revised statutes, is not prohibited by the 15th section of that title, nor declared a misde- meanor by the 25th section. The People v. Crilley, 246 EXECUTION. 1. The statute.is imperative in requir- ing the time and place of holding any sale of real estate on execution to be publicly advertised six weeks previously in two ways; first by posting the notice in three public places in the town, and second, by printing the same once in each week, in a newspaper of the county. Both methods must commence six weeks previous to the day of sale. A less time, in respect to either branch, is insufficient, and renders the sale in valid. Olcott v. Robinson, 113 2. Where a notice of sale was posted forty-three days previous to the day of sale, making six full weeks, bu the notice published in the newspa pers, although it received six sepa rate insertions, once in each weel for six successive weeks, was firs published only thirty-nine days^re riovs to the day of sale ; it waslield that the publication was insufficient and that the sheriff's deed, execu ted upon the sale, gave no title to the purchaser. i 3. Held also, that the circulation o the notice of sale in slips header " Pittsburgh Republican, Extra," would not aid the purchaser: thai not being such a printing in a news- paper as was contemplated by the statute. EXECUTORS AND ADMINISTRA- TORS. 1. Liability. \. A testator directed his real and per- sonal estate to be converted into money, as soon as convenient, and the proceeds to be securely invested in the most productive manner ; leaving it, however, to the discretion of his trustees to suffer such part of his personal estate as was then in- vested in bank stock to remain in that state, so long as they might deem it most for the interest of the testator's family. At the time of his death, in January, 1836, the tes- tator held 1000 shares in the stock of the Bank of the United States. The charter of that bank expired March 4, 1836, Mid on the 18th of February, 1836, the state of Penn- sylvania charteicd " The United States Bank," an institution design- ed to take the pla^e of the former; and by arrangement between the two banks the stock of the former national institution was transferred to the new bank. The new bank subsequently failed, involving nearly a total loss to the stockholders. Held that the administrator, cum testamento annexe, did not render himself liable- for the loss upon the testator's stock, merely by suffering such stock to remain in the state it was in at the testator's death, and to pass, as the rest of the stock did, to the new bank ; or by receiving the dividends upon the new stock. Hogan v. De Peyster, 100 687 2. It is a matter within the. jurisdic- tion of the surrogate on the final settlement of an estate, to find what each executor is debited and cred- ited for; also what they have re- ceived and paid out jointly ; in order that he may determine what each is liable for. White v. Bullock, 91 3. Where there are two executors of an estate, one active and the other in- active, the latter will not be held ac- countable for the acts of the for- mer, if he has reason to believe that his co-executor is acting prudently, and according to law. The surro- gate is therefore bound to inquire whether one or both are accounta- ble, ib 4. And the decree made by him, upon such accounting is conclusive, be- tween the executors, as to the amounts received and paid out by each, and cannot be contradicted by sworn accounts of the executors, produced by them upon the ac- counting. U) 2. Commissions. 5. Commissions are to be divided be- tween executors according to the services rendered by them respect- ive!}' ; and in the absence of any other proof in respect to such ser- vices, the share of each is to be de- termined by the amount of moneys stated in the surrogate's decree to have been received and paid out by the. executors, respectively. White v. Bullock, ( Jl 6. Justice requires that when an ex- ecutor has done nothing, and has borne no responsibility, he shall not share in the commissions. ib 7. The act of 1849, (Laws of 1849, ch. 160,) is in accordance with this principle. It requires the surro- gate to apportion the commissions among the executors according to the services rendered by them re- spectively, ib 8. The circumstance that an executor is entitled to commissions, for his services, will not render him an in- competent witness to establish the will. McDcnough v. Loughlin, 239 9. Those commissions are allowed by statute, by way of compensation fot 688 INDEX. the executor's services, and are not a gift under tho will. ib F FIXTURES. 1. Looms, placed upon the floor of a woolen factory and fastened to such floor by means of screws in each loom, are a permanent and essential part of the woolen factory. And in the absence of any proof that when they were thus annexed to the building it was not intended they should remain indefinitely in their position, to be used as long as they were capable of use, it will not be presumed that the annexation was merely temporary. They are there- fore to be deemed fixtures, as be- tween mortgagor and mortgagee. Murdoch v. Harris, 407 2. And a mortgagee of the factory and machinery will hold Mich looms, by virtue of his mortgage, in prefer- ence to a creditor of the mortgagor, who has levied upon the same un- der an execution issued against the latter; especially in a case where it appears that the parties to the mort- gage have treated the looms as fix- tures, and intended they should be covered by the mortgage. ib FORECLOSURE. See MORTGAGE, 4 to 8. FOREIGN LIFE INSURANCE COM- PANIES. 1. The act of April 8, 1851, relating to life insurance companies does not prohibit any citizen of Ihis state from applying for insurance to a for- eign company which has not compli- ed with the act, on his own account ; nor from doing so by his attorney ; nor from receiving the policy here, by mail, when issued in another state ; nor, as a consequence, from receiving it here through his attor- ney. But it prohibits the agent of a foreign company from making such delivery. The People v. Imlay, 68 2. The act does not attempt to pre- vent a foreign insurance company which has failed to deposit the se- curity required to be given by it ; from insuring our citizens: nordcu'S it impose a penalty upon an agent of such a company for acting for it, if he acts out of this state. ib 3. Signing a policy in Philadelphia, by an insurance company located and doing business there, and send- ing it to the applicant, or the attor- ney of the applicant, in New York, is not a violation of the statute, ib 4. The prohibition is expressly limited to the acting within this state as agent of a foreign insurance com- pany. And the act only intended it to apply when the actual agency was in this state, and the thing done was actually done in this state. ib 5. It is not a violation of the act for . person in this state to act as attor- ney for an applicant to a foreign in- surance company; provided the at- torney is in good faith acting only as the attorney of the applicant, and not as the agent of the company, under cover of an attorneyship for the applicant. ik FRAUD. See TROVF.R. VENDOR ANI PURCHASER, 10 to 13. G GRANT. See CONDITION, 3, 4. GUARANTY. A contract to guaranty the payment of a promissory note, although made simultaneously with the note, and written upon the same paper, and upon a consideration advanced on the credit of the guarantor, con- formably to a previous understand- ing, must express the consideration upon which it is made, or it will bu void. The Glen Cove Mviual Jns. Co. v. Harrold, 2^8 HIGHWAYS. See EJECTMENT, 1. INDEX. 689 HUSBAND AND WIFE. 1. Where a lease is executed by hus- band and wife, of land in which the wife has an estate for life, and the lessee covenants, in terms, to pay rent to both, this of itself is sufficient to entitle the husband and wife to join in an action for the rent ; not- withstanding the wife did not ac- knowledge the execution of the lease and therefore was not bound by it. Jacques v. Short, 269 2. One effect of uniting the wife, in such an action, is that upon the death of the husband his interest in the cause of action survives to the wife, and no interest vests in the personal representatives of the husband, ib 3. By uniting the wife, the husband signifies his assent to giving her such an interest in the cause of ac- tion : and he thereby vests the wife with his interest, in the event of his death. ib 4. For this reason the section of the statute which gives to the executors or administrators of a person to whom rent shall have been due and unpaid at the time of his death, the same remedy, by action, for the ar- rears, which the decedent might have had, if living, is not applicable to such a case. ib See TRUSTS AND TRUSTEES, 7, 8, 9. WlLL,l. INJUNCTION. 1. The falsely and fraudulently ob- taining an injunction, and the dam- ages occasioned by its service, are not a matter of account, and form no ground for a bill in equity or an action under the statute. (1 R. S. 750, $ 9.) Hall v. Fisher, 441 2. The bond given by the party ob- taining an injunction affords an am- ple remedy for any damages sus- tained by the defendant, and to an action upon such bond he must re- sort for indemnity, ib VOL. XX. 87 INSURANCE (FIRE.) 1. Who may sue, in case of loss. 1. A. policy of insurance is a contract of indemnity, and without an inter- est in the subject of insurance, at the time of the fire, the holder of the policy sustains no loss. Pcabody \ The Washington County Mut. In. Company, 339 2. Hence an assignment of a policy as collateral security for the payment of a sum of money by the assignor, will not enable the assignee to main- tain an action on the policy, in case of loss; where it does not appear from the complaint, that he had, at the time of the fire, any interest in the property insured. ib 3. But where the assignor remains the owner of the property, until the time of the fire, the whole loss is sustain- ed by him. He continues the owner of the policy, subject to the title of the assignee to it for the payment of his debt, and, it not being availa- ble to the assignee, the assignor alone may recover upon it, to the extent of the loss. u> 2. Contracts made by agents. 4. A contract for insurance, made by an individual who acts as the agent of both parties in making the taime, is voidable in a court of equity, at the election of the principals, or either of them. New York Central Ins. Co. v. The National Protection Ins. Co. 468 5. Where an agent, without the knowl- edge of his principal, is acting also in behalf of the other party, in mak- ing a contract, the presumption of fraud is not an unreasonable one. But the principle forbidding such contracts is- a mere rule of equity. If the proper forms have been ob- served, the conveyance is good at law, and the title passes. The con- tract is not void, but only voidable. ib 6. But this defense cannot be relied on in an action upon a policy of insur- ance, if it is not set up in the an- swer, ib 1. A general agent of an insurance company for effecting insurances in their behalf, while acting within the 690 INDEX. general scope of his authority in making an insurance, will bind his principals, although he departs from liis instructions ; unless the assured have notice that he is exceeding his authority. ib 8 The rule that whatever is known to the agent must be presumed to be known to the principal, it seems, is confined to that class of cases where the knowledge of the facts comes to the agent while he is act- ing for his principal, in the course of the very transaction which be- comes the subject of the suit. ib 9. Hence the fact that an agent by whom an insurance is effected, had previously received instructions from his principals the insurers, will not be regarded as notice to the insured of those instructions, and that he had exceeded his authority, although the agent was at the time of making the insurance, the secre- tary of the insured. ib 8. Conditions. 10. Whore conditions of insurance, annexed to the policy, are by an express provision in the policy, made a part of the contract, they have the same force and effect as if contained in the body of the pol- icy. New York Central Ins. Co. v. The National Protection Ins. Co. 468 11. One of the conditions of a policy was that no insurance should be binding until the actual payment of the premium. The money was in a bank where the agent was in the habit of making his deposits, deposited to the credit of the insur- ed. The cashier told the agent of the insurers, at the time the ar- rangement for the insurance was made, that he could have the money. The agent directed him to let it lie ; saying that when he wanted the money he would draw for it. It was not in fact drawn by him until after the fire. Held that the agent hail waived a strict compliance with the condition, and that he had au- thority to do so. ib 12. Under a condition in a policy, re- quiring the assured to give notice to the insurers of any subsequent insur- ance which may be effected upon the same property, the assured is bound to give notice of a policy which is not void or 'voidable upon its face, but is merely voidable by the under- writers upon due proof of the facts. Bigler v. The New York Central I/is. O>. 6:J"^ 13. If the assured retains the second policy until after the destruction ot the property insured, and then brings an action upon it. thereby affirming . its validity, which action is settled by- the giving; and accepting the notes of officers of the insurance company, which the insured still holds, he can- not treat the second insurance as void for the want of a compliance with one of its conditions, but is bound to <>ive notice thereof; although the second policy be voidable if the in- surers see fit to set up the defense, ib 4. Payment of premium. 14. Where a policy is issued and de- livered to the insured, and the pre- mium is acknowledged in the poli- cy as actually received, this will be held as conclusive, upon the fact of payment, and will bind the insurer. New York Central Ins. Co. v. The National Protection Ins. Co. 468 5. Notice of loss. 15. Where a fire occurred on the 15th of June, and the insured knew of it on the 18th, and sent notice to the insurers, by mail, on the 23d ; Held that this was a sufficient compliance with a condition in the policy, re- quiring notice of loss to be given forthwith ib 16. Such a provision has never been construed literally to require notice on the day. It has always been held that due diligence, under all the circumstances, was all that was re- quired, ib 6. What is covered by policy. 17. A policy of insurance tipon a " steam saw-mill" covers not only the building itself, but all the ma- chinery and fixtures therein, neces- sary to make it a steam saw-mill in all its parts. Bigler v. The New York Central Insurance Co. 63? 7. Reinsurance. 18. In an action upon a policy of rein- surance, the reinsurer i? liable t<> thf INDEX. 691 Insurer for the costs and expenses incurred in defending a suit brought by the party originally insured. New York Central Ins. Co. v. The Na- tional Protection Ins. Co. 468 INTEMPERANCE. See PROHIBITORY LIQ.COR LAW. I J JOINDER OF CLAIMS. 1, A complaint filed by a plaintiff in his own right as well as in the char- acter of administrator of E. H., against the defendants as the exec- utors of H. F., alleged that the plain- tiff and his intestate E. H. were, in the lifetime of the latter, tenants in common owning one undivided quar- ter with H. F. in his lifetime, who owned three quarters, of a lot of land, and iron ore bed, &c. And the plaintiff claimed that the de- fendants should account to him in person and as administrator of E. H., for their share of the rents and prof- its, avails and income of the ore bed, &c. and for their share of the ore dug and raised by H. F., and for their share of the moneys had and received by H. F., including what he ought to have received for the use, rents and profits of the im- provements, buildings, fixtures and erections of the plaintiff and E. H., r.,nd for the wear and damage of the same &c., and for the loss, damage and injury sustained by the plaintiff and E. II. by reason of the acts clone by H. F., while in the exclusive possession, &c. Held, on demurrer, that there was an improper joinder of claims in the complaint, in at- tempting to unite the rights of the plaintiff personally with those in his representative character ; the claims being inconsistent and adverse. Hall v. Fisher, 441 2. The same complaint, in addition to a claim for an account, after setting out the title of the plaintiff and his intestate, to one quarter of the lot and ore bed, and showing large and valuable erections and fixtures made by them, averred that H. F. , con- triving and intending to injure and defraud the plaintiff and E. H. and falsely pretending that they were not the owners of one-fourth part of said lot and ore bed, but that he was sole owner thereof, procured an injunction, and caused the same tc be served on the plaintiff and E. H., restraining them from digging or raising any iron ore on said lot, &c., and by means of such service there- of occasioned all the damages which the plaintiff alleged were sustained. The plaintiff also claimed to recovei damages for trespass on houses, erections and fixtures which the plaintiff and E. H. erected, at an ex- pense of $5000, and for their share of the expense of those erections. The complaint also alleged that II. F. diverted to his own use a quantity of ore dug and raised by the plain- tiff arid E. H. : and that he received $20,000 profits, and might with proper management, have received $20,000 more. Held that the com- plaint was defective in joining causes of action arising upon con- tract, with claims of damages for injuries to property and for torts and causes of action arising from negligence, with a claim for an ac- count of rents and profits of real es- tate, ib 3. In an action to recover damages for a neglect of duty by the defendant as canal commissioner, the com- plaint alleged that the defendant being canal commissioner, it was his duty to repair the banks of the canal at the place where the injury was sustained. Held that this allegation of the defendant's official character was made for the purpose of charg- ing him with the duty for a neglect of which the action was brought; and that if any neglect of official duty which rendered him liable to an action, in any form, was alleged, the action was properly brought against him in his private character; and that the several causes of action were properly united. Griffith v. Fallcli, 620 4. Held also, that it was no objection to the complaint, that it did not con- tain any averment that the defend- ant had funds sufficient to repair the banks of the canal. li 692 INDEX. JUSTICES' COURTS 1. The provision of the statute, pre- scribing the time within which a venire fora second jury, upon :i dis- charge of the first by a justice, for their failure to agree, shall be made returnable, (2 ft. S. 2-15, V> 111,) was designed for the convenience of the parties, and a compliance with it may be waived by their con- senting that the process be return- able at a later period. Fiero v. Reynolds, 275 2. Where the return of the justice, af- ter stating the discharge of the first jury, added, " I then proposed to the parties to postpone the cause until the 17th day of May, 1853, at &c., to which neither party made any objection. I then issued an- other venire," returnable at the time and place proposed ; Held, that it must be inferred, upon the principle that every reasonable in- tendment is to be made in support of a judgment, that the parties under- stood the proposition, and said noth- ing indicating dissent; that the par- ties were in a position requiring them to express their dissent, or be concluded ; and that the omission to object was equivalent to an ex- press consent to the postponement. In such a case a consent, in express terms, is not necessary. it 3. An omission to challenge is a waiver of all objection to a juror, in like manner as an omission to plead a defense is a waiver of the defense. And this, whether there be an ap- pearance or not. Clark v. Van Vrancken, 278 J. Accordingly, where, in an action be- fore a justice of the peace, an ad- journment took place, after issue 'oined, tt:;d the defendant, although present, did ;iot appear on the trial, it was held that he could not, on appeal from the judgment, raise the objection that some of the jurors wl - o sat upon the trial were not competent, as such, for want of the ivjuisite property qualification, ib JUSTICE'S DOCKET. See EVIDENCE, 1, 2. LEASE. 1. Where '.and is demised (o A. a.id he conveys the same to U. by deed, without any reservation or refer- ence to the lease, and 13 conveys to C. and the latter to D. in like manner, D. acquires all the interest of A., the original lessee, therein, and becomes in la\v an assignee -of the lease ; and as such ne is liable on the covenant to pay rent. Jac- ques v. Short, 269 2. An assignee is liable on all coven- ants which run with the land as covenants to repair, pay rent, &c. although not expressly named there- 3. And he cannot claim any benefit from the omission of the lessor to record the lease. He is chargeable with notice of the lessor's rights; inasmuch as they full}' appear in the chain of his own title. ib LEGACY AND LEGATEE. 1. Where there is a bequest of the whole residue of the testator's es- tate, after payment of debts aiid legacies, to one person for life, lim- ited as to part, upon a contingency, to the use thereof for life, with a valid gift over of that part, upon the happening of the contingency, and as to the rest, absolute of the en- tire estate, as to the part of the estate to which the contingency re- lates, the income can only In- paid to the residuary legatee; but as to that portion of the estate respecting which the bequest is absolute, the principal must be paid. Trustees of the Theological Seminary of Auburn v. Cole, S21 2. The gift over does not attach to the entire residuary estate, so as to render the whole a security for its payment, but the executor may, as to the legatee, set apart a principal sum sufficient to discharge the gift, and proceed to satisfy the other legacies. ib 3. And the residuary, and any < ther legatee, who has been paid his k'g- acy, will not, in case of a si bse- INDEX. 693 qucnt deficiency of assets to pay the gift, from the waste of the execu- tor, be obliged, for that reason, to refund any part of what he has re- ceived. 4 The residuary legatee is not enti- tled, before the happening of the contingency, to demand of the ex- ecutor, on account of the legacy to him, any thing further than the balance of such legacy, after de- ducting a sum sufficient to pay the contingent gift when it shall become payable. ib 5. The administrator of the residuary legatee is not liable to the contin- gent legatee, for the payment of the contingent gift, after the contin- gency lias occurred, without at least an allegation, and proof, that his intestate, or himself, has received more than the intestate was entitled to receive, and of such other cir- cumstances as would clothe him with the character of a trustee for the plaintiff' as to the excess. ib LIBEL. 1. Whether matter contained in a pub- lication is libellous or not, is a ques- tion for the decision of thb court; but, if libellous, it is for the jury, and not the court, to say whether it is applicable to the plaintiff. Green v. Tel fair, 11 2. Thus where a libellous article did not point to any person in particular, but the plaintiff had expressly averred, in his complaint, that it was publish- ed of, and concerning himself, and he had proved some facts tending to sustain that averment; Held, that it should have been submitted to the jury to determine whether the libel was intended to apply to the plaintiff. ib LICENSE. A parol license to divert water from a water course, so as to prevent it from passing oves another's land, is valid. Rat hJbone v. McConnell, 311 LIMITATIONS, STATUTE OF. 1. The llOf.h section of the code which requires that a, premise, to take n case out of the operation of the statute of limitations, shall be in writing, is not applicable to cases where the right of action had ac- crued before the adoption of the code. Gillespie v. Rosekrants, 35 2. Rights of action which had accrued previous to the time when the code was enacted, and which then exist- ed, are expressly excluded (by sec. 66) from the operation of the sec- tion which requires that a new promise, in order to take a case out of the statute of limitations, shall be in writing. Glen Cove Mutual Ins. Co. v. Harrold, 298 M MALICIOUS PROSECUTION. An action for malicious prosecution will not lie until the final termina- tion of the suit; and the complaint must allege a want of proba'ble cause, by averring that the -suit was finally determined in favor of the defendant therein. Hall v. Fisher, 441 MANDAMUS. 1. Where an office is already filled bj a person who has been admitted and sworn, and is in by color of right, a mandamus is never issued to admit another person ; the proper remedy of the applicant being a quo warranto, or the action substituted in its place by the code. The Peo- ple, ex rel. Lockwood, v. Scrugfuim, 302 2. But where the relator had been, for several years before, and was at the time when the commission to the defendant was issued, the act- ual occupant, claiming under color of right to hold the office, and nev- er having at any time relinquished it; Held that if his claim was valid, neither the commission to the de- fendant nor the interference of the latter in the discharge of the du- ties, would constitute an actual ex- pulsion from the office, inasmuch a* the possession would follow tlui right ; and that it was not a case of expulsion, but of interference by 694 INDEX. the defendant with the functions of an office actually held by another, ib 3. In such a case the incumbent should not be required to elect to consid- er himself out of possession of the office, and then be obliged to resort to a tedious action to procure his restoration. ib 4 The relator was duly elected a brig- adier general, by the field officers of his brigade, in 1811. He held the office, and was in the discharge of its duties, when the act of May 13, 1846, was passed. Under that act a brigade was formed, consist- ing of the militia of his previous command, with a slight exception, with the addition of the militia of three other counties. The relator was, on the 9th of June, 1847, as- signed to the command of the brig- ade thus constituted, (the 7th) pur- suant to a provision contained in the 8th section, in the following words : " The brigadier general in commission and highest in rank re- siding in such brigade district shall be the commanding officer of such brigade." He held such command when the constitution of 1846 went into effect. By that instrument the provision for electing brigadier gen- erals by the field officers of the brigade was continued. The 5th section of the llth article is in these words : " The commissioned officers of the militia shall be commission- ed by the governor, and no commis- sioned officer shall be removed from office, unless by the senate, on the recommendation of the governor, stating the grounds on which such removal is recommended, or by the decision of a couit martial, pursu- ant to law. Tlie present officers of the militia shall hold their commis- sions subject to re-moral as before provided." On the 6th of May, 1855, the governor issued a com- mission to the defendant, as briga- dier general of the 7th brigade, and on the same day issued a gen- eral order, revoking so much of the order of June 9th, 1847, as assigned the command of the brigade to the relator, and directed the defendant to assume the command of the brigade. Held that the governor was not authorized, by the act of April 17, 1854, or any other statute, to displace the relator, or to appoint the defendant ; and that both the commission to the defendant ard the general order accompanying it were null and void. A peremptory mandamus was accordingly award- ed] requiring the defendant to per- mit the relator to exercise the of- fice of brigadier general, without interruption or intrusion from or by the defendant. ib See BOARD or SUPERVISORS. MUTUAL LIFE INS. COMPANIES. MARRIED WOMEN. See DEED, 1. WILL 1. MASTER AND SERVANT. A servant, to be entitled to recover cf his principal for an injury happening to him in the course of his service, through defects in the machinery &c. used in the discharge of his duties, must prove actual notice to his prin- cipal of the defects. And in order to be able to prove notice, he must al- lege it in his complaint. McMillan v. The Saratoga and Washington Rail Road Company, 449 See RAIL ROAD COMPANIES, 9, 10. MAXIMS. The maxim dc minimis non curat lex is not an appropriate answer to an action for violating a clear legal right. The EllicottvilU and Great Valley Plank Road Co. v. The Buffalo and Pittsburgh Rail Road Co. ' 644 MORTGAGE. 1. Consideration. 1. The sale of a pretended title to land is an illesal consideration. It is both criminal and immoral ; and a mort- gage given for the purchase money is void. Pepper v. Haight, 429 2. Where a mortgage contains a clause showing that a part of its consider- ation is the sale of certain premises in the possession of a third person, and held adversely by him, under a claim of title, the contract is directly INDEX. 695 In conflict with the statute prohibit ing the sale of pretended titles. (2 R. S. 691, amount of over $500 per mile was sub- scribed to the original articles of as- sociation ; that directors were elected, on due notice ; that articles of associ- ation were subscribed, as required by the act, and indorsed by an affidavit of three directors, and duly filed in the office of the secretary of state ; also that the plaintiffs had, xinder their organization, constructed the road and put the same in operation. Held that the plaintiffs had proved themselves to be a corporation. The Eastern Plank Road Company v. Vaughan, 155 2. The defendant, among others, signed a paper by which the subscribers, for value received, promised to pay B. and W. $100 for each share by them subscribed for the purpose of build- ing a certain plank road. And B. and W. were' authorized to transfer the subscriptions to a company thereafter to be formed lor the purpose of build- ing said road. The defendant took one share. Subsequently articles of association were adopted and signed by subscribers for stock, to an amount exceeding the sum required by stat- ute, without including the defendant ; and the organization was completed by filing the articles of association, and the subscription signed by the defendant and others was transferred to the company by B. and W., ana the defendant's name was subscribed to the books by them. Held 1. That the subscription of the defendant was legal, and binding upon him ; as much so as if he had subscribed i.he articles of association with his own hand. 2. That the subscription was legally transferred to the plaintiffs ; and that INDEX. 697 such transfer vested in them the title to such subscription, and tlio author- ity to collect and receive the moneys duo or to become due under it. 3. That the promise of the defendant purporting to have been made for value received, this svas prima facie sufficient evidence of a consideration to uphold the subscription. 4 That the agreement might be regarded as an offer or proposition on the part of the subscribers that, provided a company should be organized to construct the piank road mentioned, eacn would take the number of shares of capital stock, therein, by them subscribed, and the organization of such corporation as an acceptance of that offer or proposition. And that such promise could be enforced, be- cause it induced others to enter into engagements, assume liabilities, and incur expense, on the faith of such proposition. ib 3 By the articles of association of a plank road company, executed in September, 1850, the subscribers promised to pay in their subscriptions as called for by the directors, not ex- ceeding 25 per cent at any one time. On the 25th of March, 1851, a call of 13 per cent was made, payable April 16tn, and calls of 15 per cent each, payable May 1st, May loth, and June 1st; and on the 13th of June a call for the balance, 42 per cent, payable on the 1st of July, was made; notice of which calls was immediately given to the defendant. Held 1. That calls in sums not exceeding 25 per cent payable at any one time, were neces-_ sary, by the terms of the defendant's agreement, before any liability there- on accrued. 2. That the 39th section of the plank road law of 1847 had no application to a Common law action, brought to recover the amount of the calls ; and that 30 days previous no- tice of the calls was not requisite to the defendant's liability in such ac- tion. That notice is necessary only where the cumulative remedy of for- feiture of the stock is sought. 3. That the call for the first four installments was a compliance, on the plaintiff's part, with the defendant's agreement to pay ; but that the call for 42 per cent, being for a sum greater than he had contracted to pay at any one time, jmposi-d no liability on him. 4. That the defendant had a right to waive the call for installments in sums not ex- ceeding 25 per cent ; and that no ob- VOL. XX. 88 jection being raised, either in the an- swer, or on the trial, to the plaintiff's right to recover, on that ground, the right to object must be deemed to have been waived. 5. That it was not requisite that the 5 per cent should be paid on the defendant's subscription, to make it valid and binding upon him ; the corporation being created without his stock. ib 4. The second section of the act of 1847 only requires five per cent to be paid in on the stock relied upon as a basis to create the corporation. ib 5. The forfeiture of stock, authorized by the 39th section of that act, in case of non-payment of calls, is a cumula- tive remedy, and can only be pursued on a fuil compliance with the require- ments of the act. ib 6. Where subscribers agree to pay the amount of their subscriptions, at such times and in such manner as shall be required by the board of directors, as soon as the borfrd makes the require- merit the obligations of the subscri- bers become operative, without the notice of thirty days mentioned in the 39th section of the plank road act. ib 7. That notice is to be regarded as pre- liminary only to a right to forfeit the stock. ib 8. Proof that a plank road company has, in accordance with the statute, been duly incorporated and organized, and has built its road, and procured the same to be inspected, and has erected toll gates thereon, and is in the actual use, occupation and enjoy- ment of the road, is sufficient to ena- ble the company to maintain an action of trespass, for an entry upon the road, against any persons who do not show a better right to the possession of it in themsel ves. The Ellicottville and Great Valley Plank Road Co- v. The Buffalo and Pittsburgh Rail Road Company, 644 9. Since the act of 1851. in relation to rail road companies, .such companies have no right to enter upon, occupy or cross a turnpike or plank road, without the consent of the owners, except upon the condition of first paying the damages sustained by the turnpike or plank road company, af- ter the same shall have been ascer- tained under the statute. & 698 INDEX. 10. Although, by the 5th subdivision of the 28th section of the general rail road act, a rail road company is em- powered to construct its road across, along or upon any stream of water, water course, street, highway, plank road, turnpike or canal, which the route of its road shall intersect or touch, this provision is to he constru- ed as granting only the right which the public had in such streams, plank roads, turnpikes, &c. and not as at- tempting to grant any right to violate private property without the consent of the owners. ib PLEADING. 1. Complaint. 1. When one party agrees to sell and deliver goods at a particular place, and the other agrees to receive and pay for them, an averment, by the purchaser, of a readiness and will- ing-ness to receive and pay at that place, in case he sifes for a non-de- livery, is indispensably necessary t a good complaint. Clark v. Dales, 42 2. But the omission to make this aver- ment is a defect which is cured by a verdict. ib 2. Answer. 3. A complaint alleged that the plain- tiff, on or about the 31st day of May, 1851, was lawfully possessed, as of his own property, of one largo gold English lever watch of the value, &c..and that the plaintiff, on or about the time above stated, did lend said watch, 'without any con- sideration therefor, to the defend- ant, for the space of four days, with the promise on the part of the defendant, that within that time said watch should be returned to the plaintiff, its rightful owner. It then charged that the defendant knew the watch was the property of the. plaintiff, and that with intent to de- fraud, &.c., he had not delivered it to the plaintiff, &c. , but had "con- verted and disposed of it to the de- fendant's use," &c. Held, 1. That the allegation that the watch was lent to the defendant, by the plain- tiff, although not necessary to be made, in that form, was a material allegation, for the purpose of con- necting the defendant with the property, so as to lay a foundation for the allegation of a refusal to de- liver it, on request, and of a conver- sion ; and was issnable. 2. That a denial, in the answer, that thu plaintiff, " on or about the 31st day of May, 1851, did leave such watch as aforesaid with the defendant, for any period, with the promise of this defendant to return the same to the plaintiff/ 1 was bad pleading, in form; it being a negative pregnant; but that it controverted the allegation as to the lending of the watch to him, and put it in issue, within th'J meaning of ty 168 of the code That it was an informal denial, and unless objection was made, for de- fect of form, before trial, it would be waived, and each allegation would be regarded as controverted. 3. That an allegation, in the answer, that the defendant was " riot in- formed " and could " not state," whether the plaintiff was, at the time stated in the complaint, pos- sessed as of his own property, of the watch, was not warranted by the code. 4. That a denial of all fraudulent intent on the part of the defendant, " or any unlawful con- version of said watch to his own use," formed no material issue in respect to the intent : and that the denial of any unlawful conversion was not intended to controvert that the defendant actually converted and disposed of the property to his own use, but simply the unlawful- ness of what he did. 5. That an averment, in the answer, of a sale and delivery of the watch to the defendant was not .inconsistent with the allegation in the complaint, of a bailment, and therefore a denial of it; it not appearing, on the face of the pleadings, that the sale was not subsequent to the bailment. Elton v. Markham, 343 4. A denial, in an answer, must bo general or specific, or it must be of any knowledge or information, &c., sufficient to form a belief. ib 5. A defendant who makes a defense by answer, must, besides answering the plaintiff's case as made by tho complaint, state in his answer every matter of defense of which he in- tends to avail himself. New York Central Insurance Co. v. The Na- tional Protection Ins. Co 4GS INDEX. 699 3. Demurrer. 6 Where a demurrer is to the whole ;omplaint, if one of the plaintiffs night have judgment separately, it is bad. Peabotly v. Washington County Mu. Ins. Co 339 1 A demurrer must be sustained or fail to the whole extent to which it is applied. ib 8. A demurrer will not lie for a mis- joinder of parties. ib 9. The defect of parties for which a demurrer is allowed, under 344 of the code, is a deficiency of, and not too many, parties. ib See JOINDER OF CLAIMS. RAIL ROAD COMPANIES, 9, 11. POSSESSION. See TITLE TO LAND. PRESUMPTION. See TRUSTS AND TRUSTEES, 7, 8, 9. PRINCIPAL AND AGENT. 1. It is a general rule that whatever is known to an agent must be presum- ed to be known to the principal. New York Central Ins. Co. v. The National Protection Ins. Co. 468 2. But it seems this rule is confined to that class of cases win-re the knowl- edge of the fact conies to the agent while he is acting lor his principal, in the course of the very transaction which becomes the subject of the suit. ib B. A principal is liable for the fraud or misconduct of his agent : and he not only cannot take any benefit from a inis'representation, fraudulently made by the agent, but is bound to make compensation for injuries sustained by others, thereby. And this, although the principal maybe innocent; pro- vided the agent acted within the scope of his authority. Hvnter v. Tlie Hudson Ricer Iron and Ma- thine Co. 493 4. There need not be express authority to make a particular representation, but the authority may be implied, as incident to a general authority. ib 5. A general authority to an agent to purchase goods on credit, is an au- thority to make the necessary repre- sentations as to the credit and solven- cy of his principal. Such authority is necessarily incident to the power to purchase on credit. ib 6. And declarations made by the agent, while applying for goods on credit, as to the credit and solvency of his principal, are part of the res gestce, and are equally obligatory upon the principal as if made by himself. ib 7. In such a case, even if the principal does not know, at the time, that the representations of his aent arc false, he is liable to the vendor, upon the principle that of two innocent parties the one shall suffer who, by his agent causes the injury. ib See VENDOR AND PURCHASER, 11. PROHIBITORY LIQUOR LAW OF APRIL 9, 1855. 1. Validity and Constitutionality. 1. So much of the 1st section of the act of the legislature entitled " An act for the prevention of intemper- ance, pauperism and crime," passed April 9, 1855, as declares that in- toxicating liquors shall not be sold or kept for sale, or with intent to be sold, except by the persons and for the special uses mentioned in the act ; so much of sections 6, 7, 10 and 12 as provide for its seiz- ure, forfeiture and destruction; so much of the IGth section as de- clares that no person shall maintain an action to recover the value of any liquor sold or kept by him which shall be purchased, taken, detained, or injured, unless he provo that the same was sold according to the provisions of the act, or was lawfully kept and owned by him ; so much of section 17 as declares that upon the trial of any complaint under the act, proof of delivery shall be proof of sale, and proof of sale shall be sufficient to sustain an averment of unlawful sale ; and sc much of section 25 as declares that 700 INDEX. intoxicating liquor kept in violation of any of the provisions of the act, shall be deemed to be a public nui- sance are repugnant to the provis- ions of the constitution for the pro- tection of liberty and property, and are absolutely void. ROCKWELL, J., dissented. The People v. Toynbee, 168 2. The last clause of section one of the act of April 9, 1855, for the preven- tion of intemperance, pauperism and crime, excepting from the operation of that section liquor, the right to sell which ' is given by any law or treaty of the United Slates," does not apply to liquor in the possession of a person who has purchased the same from the importer, in the origi- nal packages, and who retails the same from those packages, as it is called for. Wynhamer \. The Peo- ple, 567 3. The selling of imported liquor, by any person other than the importer, 'and such others as are allowed to sell, by the a'ct, is therefore prohibited by the first section as qualified by the second and other sections of the stat- ute. And upon the trial of an indict- ment, under the act, evidence by the defendant to show that the liquor sold by him was imported by another, from foreign countries, under the revenue laws of the United States ; that the duties have been paid thereon ; that lie purchased the same from the im- porter, in the packages in which it was imported ; and that it was drawn from those packages when sold by him. is immaterial, and should be re- jected, ib 4. The right to sell imported liquor, given by the laws of the United States, is subject to two important qualifications ; 1. That it remains in the hands .of the importer; and 2. That it shall be sold in the condition in which its importation is authorized, and that all sales by other persons, or in any other quantity or condition than that in which it is imported, are sub- ject, like the sales of all other prop- erty, to Buch regulations as may be prescribed by state laws. ib 5. The right is neither general as to persons, nor in its application to the property to which the laws of the United States relate. The right, on the contrary, is limited to certain persons, and qualified by tlio status of the property. ib 6. While it is in the hands of the im- porter, and in the condition in which it was imported, the laws under which he has imported it give him a right to sell it in that condition. This is the extent of the right. When he parts with the property, or changes its condition, his right, and all right to sell it, derived from those laws, ceases. It is no longer the right to sell which is given by the laws of the United States. ib 1. The prohibition of the sale of liquor, contained in the first section of the act for the prevention of intemper- ance, pauperism and crime, passed April 9, 1855. as it is qualified by the second and other sections, is not re- pugnant to the provisions of the con- stitution, but is a valid legislative act. ib 2. Bail ; trial, of accused before courts of special sessions. 8. Where an individual is brought be- fore a magistrate, upon a warrant issued for a violation of the act of April 9, 1855, " for the prevention of intemperance, pauperism and crime," the magistrate should take his examination ; and if, upon such examination, it appears that no of- fense has been committed, or that there is no probable cause for charg- ing the accused therewith, he should be discharged. If there is probable cause to bdieve the defendant guilty, bail should be taken, if ottered by the defendant, for his appearance at the next court having cognizance of the offense. The People v. Berber-rich, 2^1 9. The legislature did not intend, by that act, to extend the jurisdiction of courts of special sessions so far as to compel persons accused of of- fenses against the act, to submit to a trial before that tribunal in cases where the accused should offer bail for their appearance at the next court of sessions, or oyer and terminer, at all events. ib 10. The 5th section of the " act for the prevention of intemperance, pauper- i.sm and crime," passed April 9th, 1855, does not, either in terms or by jnvt or fair implication, restrict the INDEX. 701 jx>wer of courts of special sessions, in respect to offenses under that act, to cases where the party charged either requests to he tried by such court or omits to give bail. On the contrary, it seems to contemplate that the justice or other officer before whom the accused shall be brought by virtue of the process, shall pro- ceed at once to the trial of the charge. The People ex rcl. Booth v. Fisher, 625 11. Not only is the power conferred up- on the magistrate to try the accused, but he is imperatively required to hold a court of special sessions, and proceed to the trial as soon as the complainant can be notified. Neither his power, or his duty to try, are made to depend upon the defendant's request to be tried, his omission to ' give bail, or any other condition, ib 12. The magistrate may therefore pro- ceed to the trial of the accused, not- withstanding the latter offers to give bail for his appearance at t the next criminal court having cognizance of the offense. ib 13. Section 2 of article 1 of the con- stitution, which declares that " The trial by jury, in all cases in which it has been heretofore used, shall remain j inviolate forever," was not intended to apply to such a case. ib 14. The expression "the trial by jury," as used in that section, refers as well to all other incidents of the trial as to the number of men necessary to constitute the jury ; and means such a trial as is contemplated by section 6 of article 1 of the constitution, for persons charged with capital or other- wise infamous offenses; which must be upon presentment or indictment of a grand jury, and in a court of record with common law jurisdiction. ib 15. All offenses which are not capital or otherwise infamous crimes, are left under the regulation of the leg- islature, in regard to trial by jury. ib Q QUO WARRANTO. See MANDAMUS, 1. RAIL ROAD COMPANIES. 1. Actions against, for personal in- juries. 1. In an action against a rail road company, to recover damages for an injury sustained by a passenger by means of a collision, it is not errone- ous for the court to charge the jury that, in ascertaining the amount of the plaintiff's damages, it is proper for them to consider the bodily pain and Buffering which has occurred, or is likely to occur, in consequence of the injury, but that they cannot act upon conjecture as to the pros- pective condition or situation of the plaintiff; and that the jury can only consider, in respect to the future what the evidence renders reason- ably certain will necessarily and in- evitably result from the original in- j ury. Curtiss v. The Rochester and Syracuse Rail Road Co. 282 2. Bodily pain and suffering which is necessarily and directly to flow from the injury, is as much a part of the injury as the continuance of a phys- ical disability occasioned by it. ib 3. Oely one action can be maintained to recover damages for a personal injury. Yet it is not necessary for the injured person to wait until all the consequences of the injury have become fully developed. He is en- titled to sue whenever he thinks proper, and to recover damages for both past and future pain of body, as well as for past and future dep- rivation of health, or of any of his bodily powers. ib 4. But in respect to all the subjects of damage, it is requisite that they should be legal, direct and neces- sary results of the injury, and that those which, at the time of the trial, are prospective, should not be conjectural. ib 6. Damages arising from bodily pain and suffering need not be alleged specially in the complaint. ib 6. Where it appeared, from the evi- dence, that the cars were thrown off the track of a rail road, and a col Usion thereby occasioned, because 702 INDEX. (he rails were not right, or from some defect in the mode of securing them in their place ; Held that the degree of care which the law im- posed on the rail road company re- quired them to see that the rails were in a right position, and not to trust exclusively to the lever of the switch, when the rails were in open view while moving it ; and also to see that the rails were firmly se- cured ; and that if 'they omitted to do so they were guilty of negli- gence, ib 7. It was therefore held, further, that the question of negligence was properly submitted to the jury, ib 8- Also held, that proof, uncontradict- ed, that the switch was rightly placed, did not rebut all presump- tion of negligence. ib D. Where, in an action against a rail road company, the complaint, after stating that the defendants were an organized company and the owners of the road, and were running it, averred that on &c., while they were so running the road, the plaintiff's intestate was in the employ of the defendants, as an engineer upon their locomotive, while it was in their use and service : Held that this was a sufficient allegation to show that the relation of master and servant ex- isted between the parties. McMillan v. Saratoga and Washington Rail Road Co. 449 10. But no special contract between the principal and agent is to be inferred from such an allegation. ib 11. Where a complaint alleged that W. S. M., the plaintiff's intestate, was in the defendants' employ as engineer upon a locomotive used and running upon their rail road ; that it was the duty of the defendants to provide a good, safe and secure locomotive &c., and a good, safe and secure track, and to keep the same in good repair, and to build, maintain and keep in good repair a.11 necessary bridges, fences and cattle-guards, but that they, not i-esardinjr their duty, wrongfully and negligently provided, used and suf- ered to lie used, an unsafe, defective and insecure locomotive, and failed and refused to provide a good, safe and secure track and road, or to keep the road in good repair, and neg- lected to build, maintain and keep in ood repair all necessary bridges, fences and cattle- guards; that through a defect in the fence which it was the duty of the defendants to main- tain and keep in good repair, a horse got upon the track from an adjoining lot, without any fault of W. S. M., and in consequence of the defend- ants' neglect to provide proper cattle- guards, ran over the road until he came to a bridge, where the locomo- tive struck the horse ; and the lo- comotive was thrown off the track and W. S. M. was killed ; it was held, on demurrer, that the com- plaint was defective, in not averring actual notice to the defendants, of the defects occasioning the injury, or some of them. ib 2. Duty and rights of engineers. 12. It is the duty of an engineer, em- ploy ed in running a locomotive upon a rail road, and' it is confided to him by his employers, to guard against all accidents liable to happen by the es- cape of horses or other animals, upon the track, through a defect of fences, or otherwise. Hence he is bound to make known to the rail road compa ny any defects of that nature which may exist. So in respect to any de- fects in the locomotive. And for not making them known he is responsible to the public as well as the company. McMillan v. Saratoga and Wash' ington Rail Road Company, 449 13. lie may require special indemnity against all risks, or he may give no- tice to the company and throw the risk upon them. ib 3. Proceedings to acquire title to land. 14. The existence of a mortgage which is a lien upon land taken and used by a rail road company for the pur- pose of constructing and operating its road, is one of the defects in the title to such land, contemplated in the 21st section of the general rail road act of 1850, so as to authorize such company to proceed arew to acquire a valid title, in the same manner as if no appraisal had been previously made, nor any attempt to procure the title by agreement and purchase. In the matter of the New York Cen- tral Rail Road Company, 419 INDEX. 703 15. The company is not obliged to wait until the mortgaged premises are sold under a decree of foreclosure ; but on discovering the existence of the in- cumbrance, they may proceed imme- diately, and on complying with all the provisions of the act, may have the lien extinguished, as to the land occupied by them. ib See MASTER AND SERVANT. PLANK ROADS, 9, 10. RECEIPT. See CUSTOM. REDEMPTION. See DEBTOR AND CREDITOR, 6. REPORT OF REFEREE. , Section 272 of the code does not re- quire a referee formally to report on all the issues formed by the plead- ings. If there are issues upon which no evidence is given, he need not no- tice them in his report; it seems. Ingraham v. Gilbert, 151 , An objection to the report, on that ground, is not available on appeal from the judgment entered upon the report. If a party is dissatisfied with the report of a referee, his remedy is by special motion to set aside or cor- rect the same. ib s SALE OF CHATTELS. See AGREEMENT, 2, 3. SAVINGS BANKS. ] . Where moneys deposited with the Knickerbocker Savings Institution, were loaned by such institution to the defendant, upon his promissory note, payable on demand, secured by the hypothecation of 32 shares of the capital stock of the Knicker- bocker Bank ; it was held tbat the note was not a violation c f the char- ter of the savings institution, nor of the act of April 15, 1853, relative to savings banks in the city and county of New York and the county of Kings. (Laws of 1851, ch. 100; of 1853, ch. 257.) United States Trust Co. v.Brady, 119 2. The 6th section of the act of 1853 was intended to be, and is, only a prohibition against the loaning of the funds of savings institutions on mere personal securities. ib 3. A loan, when the note of the bor- rower, payable on demand, istakun, is not a loan on the security of that note. The note is only evidence of the debt. If stock is hypothecated to secure the payment of the note, the loan will be deemed to have been made upon the stock. ib SET-OFF. In an action against several defend- ants who are jointly and severally liable, either of them may set off promissory notes executed by the plaintiff, or may avail himself thefe- of by way of counter-claim. Briggs v. Briggs, 477 SHIPS AND SHIPPING. 1. In an action against several persons, as joint owners of a vessel, for sup- plies furnished for the vessel, proof by the plaintiffs that the supplies were delivered on board the vessel, that they rendered a bill thereof to B. one of the joint owners, that it was last seen in his possession and that it had been inspected by the other joint owners, is sufficient, after proving service of the usual notice on B. to produce the bill, and his failure to do so, to authorize parol evidence to be given of its contents. King v. Lowry, 632 2. Joint owners of a vessel are primari- ly liable, at all events for supplies furnished in the port to which she belongs, whether all the owners are in such place or not. Prima facie their liability is identical with that of persons in the relation of copartners, as joint contractors. ib 3. But if any one of the owners arro- gates to himself the control, to th* 704 INDEX. exclusion, and against the wishes, of the others, and this assumption is known to the persons furnishing the supplies, thus showing that they act in collusion with the usurping own- er, it seems the others are not liable. ib 4. The mere acceptance by the credit- ors, of a note, from one of the own- ers, is no .proof, in itself, that the credit was given exclusively to him. Nor will it release the other owners, in the absence of proof that the note was taken as payment, and with the intent to discharge the other owners. 5. In an action against L., J. & B., as joint owners of a vessel, for supplies furnished for the vessel, at the re- quest of B., proof by L.and J. that B. at the time ths debt was contract- ed, not only acted in hostility to them and their interests, but took exclu- sive possession and control of the vessel, undertaking a voyage in ex- press contravention of the wishes of the other owners, and that the plain- lifts knew this, is admissible. ib 6 But the mere hostility of B. to the other owners, in relation to the vessel and their interests in it, is not rel- evant, unless it also appears that he usurped exclusive control over the vessel, and undertook a voyage with her in direct opposition to them, and that the plaintiffs were aware of that fact, and acted collusively with him. ib SPECIAL SESSIONS. See PROHIBITORY Liauoa LAW, 8 to 15. SUBP(ENA. I. Where a person goes to the house of another, for the purpose of serv- ing a subpoana upon him, and the latter is in the house at the tune, these circumstances amount to a legal license to enter; and if the person having the process finds the outer door open, and enters peace- ably, he is lawfully there, and may use such force as is necessary to over- come any resistance he may meet with in the service of the subpoena ; being liable only for an excess of violence, beyond what is necessary to overcome the resistance. Ifagcr v. Danforth, 16 2. The fact that the person having the process is ordered by the wife of the party sought to be served, to leave the house, will not render him a trespasser in proceeding to serve the subpoena. ib SURROGATE. See EXECUTORS AND ADMINISTRATOR*, 2, 3, 4, 5, 7. T TAXES AND TAXATION. See COMMON SCHOOLS. MUTUAL LIFE INSURANCE COMP- NIES. TENDER. A strictly legal tender may be waived by an absolute refusal to receive the monej', or do the act required This is upon the principle that no man is bound to perform a nuga- tory act. Stone v. Sprague, 5<>8 See VENDOR AND PURCHASER, 3. TITLE TO LAND. 1. In an action to recover damages for the diversion of water from land, of which the plaintiff alleges he is the owner and in the posses- sion, the act done being above his land and the injury consequential, it is not necessary for the piaintiff to prove, in regard to his right or interest, any thing further than that he was in possession of the prem- ises at the time of the injury. Rathbone \. McConnell, 311 2. The party In possession is the prop- er person to bring such an action, ib 3. The owner, if not in possession, cannot maintain an action, except for an injury to his reversionary in- terest, and under a complaint pre- senting such a case. See COSTS. TRESPASS. 1. Trespass cannot be maintained by the owner of goods, against a sheriff, for taking them under and pursuant to a writ of replevin against another person having the goods in possession. JOHNSON, J., d issented . Foster v. Pettibone, 350 2. The law fully recognizes the own- er's right, and if he can, without force, obtain the property, will not hold him a wrongdoer for taking it; but it withholds from him an affirmative remedy by action against a ministerial officer; allowing him an action only against other per- sons concerned in, or who instigat- ed, the taking. U> 3. Where cows, belonging to several owners, are found in the garden of an individual, committing a trespass, each owner is liable for the damage done by his own cow and for no more. Partenheimer v. Van Order, 479 4. And in the absence of all proof as to the amount of damage done by each cow, the law will infer that the cattle did equal damage. ib See SUBPCBNA. TRIAL. 1. Where one party agrees to sell and deliver goods at a particular place, and the other agrees to receive and pay for them, an averment by the purchaser, of a readiness and willing- ness to receive and pay at tliat place. in case he sues, for a non-delivery, is indispensably necessary to a good complaint. But if the complaint omits to make thataverment, the fact omitted to be averred will, on appeal from the judgment rendered at the circuit, be presumed to have been proved ; inasmuch as a readiness and willingness to perform could not be proved, so as to authorize a ver- dict for .the plaintiffs, without also proving a readiness and willingness to do so at the place. Clark v. Dales, 42 .VOL. XX.' 89 705 2. This is not such a case of variance between the complaint and the- facts found or proved as will be deemed to affect the substantial rights of the parties. ib 3. A single exception to a series of decisions, one of which decisions i. correct, is unavailing. Elton v Markliam, 34c 4. Where an objection to testimony is taken, on the trial, on a specific ground, and in such a manner as tc induce the opposite party to believe that sueh is the sole ground, the party objecting will not be allowed, on appeal, to place his objection upon a different ground and one which, if it had been urged at the trial, might have been obviated. Briggs v. Smith, 40C TROVER. 1. In an action commenced under sec tions 206. &c. of the code, for the claim and delivery of personal prop- erty, where the complaint is in the form of the old declaration in re- plevin in the detinet, and charges that the defendants have become pos- sessed of, and wrongfully detain the goods and chattels, and the plain- tiffs proceed upon the ground that the title to the goods was never changed, but remained in them, because the same were purchased of the plaintiffs. and the delivery thereof procured, through the false representations of the vendees as to their solvency and credit, proof of the purchase of the goods by the agent of the defendants, by their direction, and that at that time the defendants were insolvent, is competent evidence, on the question of fraud. Hunter v. The Hudson River Iron and Machine Co. 493 2. In such an action it is not necessarv the complaint should aver a demand of the goods; or that it should con- tain an allegation of the insolvency of the defendants, or of any of the facts going to establish the fraud, ib 3. It is sufficient if it is in the form of the old declaration in replevin in the detinet, and charges that the defend- ants have become possessed of, and wrongfully detain, the goods and chattels in question. ib 706 INDEX. TRUSTS AND TRUSTEES. 1. Construction and validity of trusts. 1. T. conveyed his property to R. by deed, in trust to receive the income and apply it, first, to the payment of his existing debts, and secondly, to the use ofhis wife and children during his life; and on his death, to convey the fee or capital to his children then in being. Held that although the absolute power of alienation was sus- pended, both by the nature of the trust and by the contingent remainder in favor of unborn children, yet the suspension from either cause could by no possibility continue longer than one designated life in being, and was therefore not contrary to the statute. Rogers v. TiUey, 639 2. A trust to receive rents and profits, and apply them to the payment of debts, may be satisfied by a sale of the premises for a term of years, tak- ing the whole rent in advance and discharging the debts; and such a sale is not contrary to the statute, ib 8. An application of rents and profits, by way of trust, to the use of a man's family, is an application of them to his use. and if confined to the period of his life, and to a living, designated individual, is not contrary to the stat- ute, ib 4. Even if this were not so, and the use were to be considered as exclusively that of the wife and children, as it is only, in any event, for their lives, and cannot possibly last longer than the life of the father, which may be a shorter period, it is not contrary to the statute. ib 6. If any of the trusts in a deed are valid, the deed is not void. A single good trust is sufficient to sustain it. ib 6 A trust in favor of two named chil- dren of the grantor and his wife, al- ready born, " and such as may be born of the lawful issue of" the gran- tor and his wife, means the existing children, and such, if any, as shall be afterwards born, being lawful issue of the grantor and his wife. ib 2. Resulting trusts. 7. The presumption that he who sup- plies the money to make a purchase intends it for his own benefit, rather than that of another, does net applv in ca^es, like that of parent and child or husband and wife, where the pur- chase may fairly be deemed to have been made for another from motives of natural love and affection. Welton v. Divine, y 8. Tho presumption, in such cases, is that the purchase is intended as an advancement, unless the contnry is established by proof. ib 9. Therefore where a purchase is 7iiadc by a husband, and the deed taken in the name of his wife, a resulting trust cannot be established, in favor of the husband, without some evidence to rebut the presumption that the de<'d was intended as a provision in the wife's favor. ib 3. Liability of trustees. ' 10. On the 25th of July, 1838. C. mad a general assignment of all his projn erty to W. and N., in trust to sell and convey so much real estate as should be sufficient to pay his debts, and to apply the rents and profits to his sup- port during life. C. was infirm arid in debt, and incapable of managing his own affairs at the time of making the assignment. The trustees subse- quently sold a portion of the assigned property, called " the Bayside Farm," to S. W". for $15,000, with the knowl- edge and assent ofC., the assignor, and executed a deed to him, in which C. joined. No part of the purchase money was paid, but the purchaser gave his bond for the amount, paya- ble at a future day. The debts not exceeding $8000, C. consented to the sale only on condition that the trustees could find an opportunity to invest the surplus remaining after paying the debts. The trustees ac- cordingly loaned to H. 6000 upon real estate at Newburgh, which sum S. W. consented to advance towards the purchase money, before he obtain- ed possession. The property mort- gaged by H. was subject to a prior mortgage of &4000, and was valued at $16,000. C knew of. and consent- ed to, this loan to II. .Subsequently C. dieil , and the trustees- delivered over to B. W. S., his executor, the bond and mortgage taken from H. Tho executor took no measures to enforce the payment of the interest, or the 'principal, from II. The prior mort- gage was foreclosed, and after satisfy JNDEX. 707 ing the same, there was a surplus of $495684, which B. W. S. applied for, and obtained, upon H.'sbond and mortgage ; leaving due, for principal and interest, to the estate of C. $2502.73 ; for which a decree in chancery was obtained against H., \\liicli still remained due and unpaid. In an action brought by the devisees of C. against the trustees, to recover the amount of that deficiency from them ; Held , that the trustees had not been guilty of any dereliction of duty, either in selling the property, or in loaning the money to H. ; and that consequently they were not liable for the loss which had occurred. Higgins v. Whitson, 141 Jl. It cannot be expected from trustees that they should act upon principles different from those which actuate cautious and prudent men in the transaction of their own affairs. Oth- erwise, the office of a trustee would be one of such hazardous responsibility that no prudent or competent man would ever accept it.. Per CLKRKE, J. ib u UNITED STATES TRUST COM- PANY. 1. The charter of the United States Trust Company of New York, is not unconstitutional. United States Trust Co. v. Brady, 119 2. Tnat company is not a corporation created for banking purposes, with- in the meaning of section 4 of ar- ticle 8 of the" constitution. ib VENDOR AND PURCHASER, (OF CHATTELS.) 1. Readiness of purchaser to perform. I. Where one party agrees to sell and deliver goods at a particular place, and the other agrees to receive and pay for them, an averment by the purchaser, of a readiness and will- ingness to receive and pay at that place, in case he sues for a non-de- livery, is indispensable. But the omission to make this averment is a defect which will be cured by a verdict. Clark v. Dales, 42 2. And if the plaintiff omits to make the averment, in the complaint, the fact will, on appeal, be presumed to have been proved on the trial ; in- asmuch as a readiness and willing- ness to perform could not be proved, so as to authorize a verdict for the plaintiff, without also proving a readiness and willingness to do so at the place. ib 3. Where there is a mutual obligation on a purchaser to pay the purchase money, and on the vendor to convey the property purchased, an offer and readiness to perform on the part of the purchaser, is sufficient, with- out tendering a deed ready to be ex- ecuted by the vendor; especially where the vendor refuses to convey at all. Stone v. Sprague, 509 2. Duty of disclosure, by purchaser. 4. The law does not, in ordinary cases, impose upon a purchaser of proper- ty the duty of disclosing to the seller, at or before the sale, the state of his pecuniary circumstan- ces, however desperate they may , be, and be known by him to be. Mitchell v. Warden, 253 5. This general principle is applicable, notwithstanding there has been a long course of dealing between the parties, in the course of which cred- it has been given to the purchaser, and he has punctually performed his engagements; and his insolvency has occurred during those dealings. ib 6. No relation of trust or confidence is thereby created, which should en- title the seller to expect of the pur- chaser, or reqnire of the purchaser, as a legal duty, to communicate to the seller information of his ina- bility to pay all his debts, while , he continues his business and the management of his affairs. ib 7. Therefore, although a purchaser at the time of making an additional purchase from persons with whom he has been in the habit of dealing, is insolvent, and he well knows his insolvency, and intentionally con- ceals it from the vendors, by simply withholding his knowledge on tho 708 INDEX. subject, without otherwise saying or doing any thing to mislead, and he still retains the possession of prop- erty, and is pursuing his business as before, he is not thereby guilty of a fraud, entitling the vendor to avoid the sale. ib 8. But if the purchaser, at the time of making a new purchase, is not only insolvent, and knows himself to be so, but has performed an open and notorious act of insolvency, by breaking up his business and as- signing his property for the benefit of his ci editors, it is his duty, arising out of his previous dealing with the vendors, to communicate that fact to them, before the sale ; and the violation of that duty amounts to a fraud. ib 3. Who is a bona fide purchaser. 9. A person receiving from another property obtained by the fraud of the latter, without paying any thing on account of it, and with notice of facts which render him legally chargeable with knowledge of the fraud, will not be considered a bona fide purchaser. Mitchell v. Warden, 253 4. Sale and delivery procured by fraud. 10. A sale and delivery of goods, pro- cured through the false representa- tions of the vendee in regard to his solvency and credit, passes no title whatever to the property, as between the parties ; and the vendor may maintain an action, under the code, for the claim and delivery thereof. Hunter v. The Hudson River Iron and Machine Co. 493 11. In such an action, where it appears that the purchase was made by an agent, it is material for the plaintill' to show not only that the purchaser was insolvent, at the time of the pur- chase, but that such purchaser, or his agent, or both, knew of such in- solvency. Hence the declarations of the agent, to third persons, made by him while acting for his principal and within the scope of his authority, and going to show such knowledge on the part of both principal and agent, are proper evidence. -t' immediate payment, it appeared that the defendant assured the ven- dor's agent that the money to piiy for the corn was arranged f'.ir, and that the vendor could have it as soon as the corn was delivered on board a ship; and upon that con- dition the corn was delivered to the defendant, who, on various pretexts avoided the payment of the money, for several days, and the vessel sailed for Europe, with the corn on board ; the defendant on the same day she sailed, executing a general assignment of his property to trus- tees for the benefit of his creditors, and being insolvent at that time and at the time of the purchase, and hav- ing obtained advances upon the hills of lading, and applied them to oth- er purposes. // teas held that both on the ground of fraud, and of a con- ditional sale and delivery, the plain- tiff' was entitled to recover; and a verdict in favor of the defendant was set aside, as being against the weight of evidence, and a new trial was granted. Van Neste v. Con- oiw, 547 13 Such action will lie, although the goods have been transferred to an- other, as security for a debt, and are on board ships and not under the manual control of the purchas- er when the action is brought. The judgment being in the alternative, for the return of the property or the payment of its value, the de- fendant, if he has not the prop- erty, can satisfy the other require- ment of the judgment, and pay the value. ib w WAIVER. 1. The general doctrine that where a party does not appear he waives nothing, is well settled ; but this means, nothing impeaching the ju- risdiction or authority of the conr^ to act, and nothing in the way of ' jection to the proceedings and tho competency or siith'ciency of evi- dence on the pnrt of the plaintiff. This is the extent to which the rule INDEX. 709 has been or can properly be carried. Clark v Van Vrancken, 278 2 With the exception of objections to the jurisdiction, and those which arise upon the proceedings and case of the plaintiff, all objections are waived by an omission to ap- pear and make them in the proper form before judgment. ib 3. It is competent for a defendant to waive a technical legal defense grounded on an illegality in which he himself knowingly participated, and to affirm the contract so far as the parties to it were concerned. Pepper v Haight, 429 4. A defense that a mortgage is void, for being given upon an illegal con- sideration, will be waived by the omission to set it up specifically in the answer, and by admitting the va- lidity of the mortgage in the answer and on the trial, . ib WAREHOUSEMAN. See WHARFINGER. WARRANT. Hee COMMON SCHOOLS. WHARFINGER. 1 A wharfinger and warehouseman, by holding himself out to the public as such, extends a license to enter upon his premises, to all persons having occasion to do so, in connection with that business. Bogert v. Haight, 251 2. His employment, however, is a merely private one. He is under no legal obligation to allow the use of his wharf or warehouse to every person applying, even if he has suitable ac- commodations, and a reasonable re- ward is offered him; but he mny limit the general license, or terminate it, in the case of any particular per- sons, by giving them notice not to come upon the premises. ib S And after he has given such a notice to an individual, and thereby revoked the license as to him, an entry of the Latter upon the wharf Is a trespass, for which an action will lie. ib 4. The possession of the preinises,hy the plaintiff, in such a case, is sufficient evidence of his right to bring the ac- tion, ib WILL. 1. Construction. 1. A testator, by his will, made in Marcl 1801, gave to his wife the income of his real and personal estate, during her widowhood. He then devised as follows: "I give and bequeath unto my oldest son, Jacob, the corner lot, on the corner of Hester and Elizabeth streets ; I also give and bequeath un- to my eldest daughter, Barbara, the lot adjoining *he corner, facing Eliza- beth street; I give and bequeath to my daughter Eliza the lot adjoining the above, facing Elizabeth street; and I also give and bequeath to my youngest son, William, the lot adjoin- ing the above." The testator died in March. 1801, and his son William in August thereafter. After the testa- tor's death, each of his four children claimed and took one lot ; the corner lot being called Jacob's, the next south, Barbara's, the next, Eliza's, and the next, William's. In 1823, the widow of the testator conveyed to Jacob all her title to any lands of which her husband died seised or possessed. Jacob then conveyed in fee to J. S. the whole of lot No. 137, without any thing to indicate that he was selling an undivided interest only in the lot. In 1822, Barbara, w.th her husband and the widow, mort- gaged lot No. 136 to C. for S'.V,u : nothing in the mortgage indicating' an intention to pass the title to an undi- vided share only of the lot. This lot was afterwards sold on a foreclosure of the mortgage, and purchased by C. Before this sale, and after the con- veyance by the widow to Jacob, the latter conveyed to J. S. all his " estate, right, title and interest" of, in and to lot No. 136, " being an estate in said Jacob M. for the life of his mother." In 1829, Eliza joined with her hus- band, A., in conveying the whole of lot No. 135 to P. iti fee, with full cov- enants, and without any intimation that the grantors conveyed, or had 710 INDEX. only an undivided interest in that lot. William died an infant, in 1801, and his estate passed to Jacob, Barbara and Eliza. In 1821, Barbara and Eli- za, with their respective husbands, joined with the widow, and conveyed to Jacob, in fee. two undivided third parts of lot No. 134, by a deed, with full covenants as to the estate granted, and describing themselves as co-heirs of William, with Jacob. In 1822, Ja- cob conveyed this lot to P. C. with full covenants, and without any inti- mation that he conveyed only an un- divided share. Barbara died in 1835, leaving six children, one of whom died in 1839. The plaintiff was one of her children. He claimed, that the will gave only a life estate to each child, in each lot; that his mother, on the death of William, was entitled to an undivided third in each lot, in fee; that such right descended to her six childnn. and on the death of one of them vested in the five survivors ; and that the plaintiff was thus enti- tled to one fifteenth part of lots 136 and 137. Held, 1. That, assuming that the will did not convey to each child the fee of the lot devised to him or her, but only a life estate in it, it was plain that each child must have known that it was the intention of the testator to convey the fee. That slight evidence ought to be sufficient in such a case, that they had deter- mined to carry out the real intent of their father, although not expressed according to law. That here was the strongest evidence that they had so determined, and that they carried out this honest determination; every act of theirs showing that determination, and showing it in a manner strictly conformable to law. 2. That if the will did not give a fee to each child in a separate lot, then each child had a life estate in a separate lot, and they were together tenants in common of the reversion in fee, in all the lots, which reversion descended t" them as the heirs at law of their la- ther, as real estate not disposed of by his will. 3. That if the doctrine of estoppel could be applied so as to prevent parties disturbing a partition, merely because there had been pos- session under it, there was much more ground for applying it where, as in Lhis :ase, each owner had, by his or her deed, claimed to own a separate lot in entirety, and had, under that claim, conveyed the land by deed or mortgage, and subsequent foreclosure, and received from the purchasers the full consideration for the entire title to the lot under this representation, made by all and by each, that each held a lot separately in fee and with- out any co-tenant. That ill the chil- dren of the testator, therefore, were estopped now from denyingthatcach held his own lot in fee and in several- ty. 4. That if eacli of the owners had been together when they conveyed, and had at the same time conveyed to the several purchasers,there could be no doubt that they each claimed to hold a lot in severally, and con- ceded to the others the like right. Such conveyance would be conclu- sive evidence of a partition previ- ously agreed on ; and they, by their acts, causing others to believe it was made, would be estopped from denying it. That the conveyances, made separately and at successive times, equally established the fact of a partition previously agreed on. 6. That it made no difference that Barbara and Eliza were married women. A married woman can no more be allowed to commit a. fraud than a single woman. She is com- petent to know the difference be- tween fraud and honesty, and to un- derstand the obligation not to stand by and allow another to purchase from her on the supposition that she has a perfect title, when she knows she has not. That these acts and deeds of the parties were such evidence of an actual partition be- tween the parties that a jury or court ought to find that there wn.-s an actual partition in fact. And that the several deeds and the mortgage confirmed that partition, so as to bind even the married women; the deeds and mortgages having been acknowledged by the latter on a private examination, so as to pass their title. Mount v. Morton. 123 2. A testator, by his will, devised a fel- lows : " I give and bequeath unto my daughter Mary Roof, the use or in- terest of $800, for and during her natural life; and at her decease I give .and bequeath unto my grand- daughter, M. A., $200 of the said $800." The testator subsequently directed his executors to dividu among his children and grandchil- dren, in proporton to the several INDEX. 711 legacies bequeathed to them, " the said sum of $600 ] e ft at the decease of his daughter Mary, and all the residue and remainder of his estate not otherwise disposed of." After the testator's death, and during the life- time of Mary Roof, two of the lega- tees, being married women, with their husbands quitclaimed to R. R., husband of Mary Roof, and to his heirs and assigns forever, "all the right and title which they then had or might thereafter have, to a cer- tain legacy bequeathed to his wife Mary Roof" by the testator. Held that the thing released or quitclaimed was only the legacy bequeathed to Mary Roof, which was not the $800 or the $600, but only the use or in- terest of $800 for life"; the legacy be- queathed to her being only a life es- tate in the $800, and the legacy given to the other legatees being the rever- sion in that sum. That such rever- sion did not pass by the quitclaim and that consequently the executor was not liable to R. R. for the amount of the shares in the $600 which he had paid over to the assignors or re- leasors, after the death of Mary Roof. Cr.KRKK, J., dissented. Roof v. fountain, 527 2, Execution. 3. Where the subscribing witnesses to a will subscribe their names at the end of a memorandum of erasures and interlineations which is imme- diately below the attestation clause, this is a sufficient signature by them. McDonough v. Loughlin, 238 4. The memorandum is merely a part of the certificate, which, taken to- gether, states that the paper as al- tered was executed by the testator and attested by the witnesses. ib 5. Where a testator said to one of the subscribing witnesses, *' Mr. McC. [the scrivener] will want you to be" a witness to the will ;" and the scriv- ener read the attestation clause to the testator, and asked him wheth- er he wished the persons present to *>e witnesses to the, will, and he said he did : Held, that this was a sufficient request of the witnesses to become such. ib 6 It is not necessary that a testator should himself formally repeat the words. It is enough if he directly and audibly adopts the language of another, used in his presence and hearing. ib 3. Proof of. 7. The admission and examination of an executor and trustee as a wit- ness to prove the execution of a will, does not annul his appoint- ment of executor, or the legacies to him as a trustee, where nothing is given to him, nor is any appoint- ment conferred upon him, for his own personal use, but all is fidu- ciary and for the benefit of others. McDonovgh v. Loughlin, 238 8. The fact that the donee of a mere naked power may be entitled to a compensation for his services, does not necessarily render hiui benefi- cially interested in the execution of the power. ib 9. Nor will the circumstance that an executor is entitled to commissions for his services, render him an in- competent witness to establish the will. ib 10. Those commissions are allowed. by statute, by way of compensation for the executor's services, and are not a gift under the will. ib WITNESS. 1. Where an objection to the compe- tency of a witness examined before a surrogate is not raised there, it will be deemed to have been waiv- ed, and will be of no avail on ap- peal. McDonough v. Loughlin, 238 2. Where a defendant has no separate defense, in an action on a joint con- tract, a co-defendant, called as a witness, can prove nothing that will not enure to his own benefit, as well as the benefit of his co-defendant; and as to such matters he is there- fore interested, and of course in- competent. King v. Lowry, 632 WORK AND LABOR. 1. Where one persor performs Labor for another, the law presumes a request, 712 INDEX. and a promise to pay what such labor is reasonably worth, unless it is un- derstood that it is to be performed gratuitously, or it is performed under circumstances which repel the pre- sumption of a promise that compen- sation shall be made. Lewis v. Trickey, 387 2. Where an employer agrees to ren- der an equivalent for services per- formed, it is no defense to an action against him tc recover compensation, that he agreed to pay somo third person who lias no legal claim to the service, or risrlit to the compensation ; especially where the defendant does not show that he has in fact paid such third person. ib . When payment for labor is to be made, the law will give it to him who per- forms the labor, unless some ether person can show a better title. ib See OPINIONS OF WITNESSES END OP VOLUME TWENTT. y 001 166771 4